Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Albert Branson Maris, Judge.
Before DAVIS and BIGGS, Circuit Judges, and DICKINSON, District Judge.
The plaintiff-appellant has appealed from a decree of the District Court dismissing his bill of complaint against the defendant for infringement of his patent, No. 1,844,359, issued February 9, 1932, on the ground that it is void because the invention described therein was anticipated.
The only question involved is whether or not the patent is invalid for anticipation.
The patent "relates to an improved tag, which is adapted to be attached to the wing of a fowl or may be applied to the ear of an animal * * * ". This "improved tag" is described in claims 2 and 4 of the patent as follows:
"2. An identification tag comprising a flat upper member and a lower member, said upper member having a pointed end, said lower member provided with a flat base portion and on offset adjacent to its end, one of said ends provided with a stud and the other with a co-operating opening for engaging said members in substantially parallel relation."
"4. An identification tag comprising a metallic band bent into a U shape having a flat upper member pointed at its end, a lower member having a flat base portion bent at right angles near its end and provided with an extension parallel to said base portion and said upper member and said extension provided with an opening and a rivet respectively for securing said members together."
As stated in the opinion of the learned trial judge, "wing bands for identifying fowls are not new", nor are identification tags for animals. As early as April 4, 1882, almost fifty years before the plaintiff's patent was issued, United States patent No. 255,793 was issued to Phillip Preston Johnston for an identification tag for animals which was very similar to the tags described by the plaintiff's patent. Since that time, many other patents have been issued for similar tags for use on both fowls and animals. Examples of these are the Schild patent No. 720,286 issued in 1903; the Davis patent No. 749,035, issued in 1904; the Moyer patent No. 834,587 issued in 1906; the Ripper patent No. 909,337 issued in 1909, and the Hawley patent No. 1,368,628, issued in 1921.
As the District Court found, the above patents anticipate all of the features of the plaintiff's patent with the one exception that the plaintiff's tag was "bent into the form disclosed in his patent by the manufacturer before being sold to users while the prior art band was sold flat and was bent by the users into the form which they desired * * * ". But even the shape into which the manufacturer bent the plaintiff's tag was not new, for as the trial judge found, on substantial evidence, "the prior art band was in many cases bent by users into substantially the form disclosed in the plaintiff's patent".
The bending of the plaintiff's tag into a desirable shape before sale might be a convenience to the user and constitute an improvement, yet it did not involve anything more than mere mechanical skill, particularly in view of the fact that the form into which it was bent was not novel. Consequently the District Court did not err in holding the patent invalid. Essex Razor Blade Corp. v. Gillette Safety Razor Company, 299 U.S. 94, 57 S. Ct. 68, 81 L. Ed. 60.