the upper part of the foot portion, and including the corresponding meeting point of the leg, foot, and heel portions."
As defined in these two claims and elucidated by correspondence, a patent was allowed on the invention.
The defendant argues that prior art, use and patents encompassed or anticipated the patented structure, and has afforded numerous exhibits to establish the contention.
The defendant argues further against the validity of the patent that inventive faculty was not essential to the development of structure, that it was merely the result of the exercise of skill in making an advance plainly indicated by the prior art. In other words, the defendant argues that common sense alone suggested the patented structure.
The original first claim was disallowed because it was deemed to disclose a structure common sense would suggest; it called simply for reinforcement of the area. However, plaintiff contends, as was explained to the examiner in the revised claims, the object and operation of the reinforcement was to distribute strains in a particular manner, and not simply to endure the friction of wear.
Notwithstanding plaintiff's contention, I have come to the conclusion that every element of the claims of the Hahn patent is found in the Lengel stocking antedating the Hahn patent. Lengel, like Hahn, was concerned with the "side points of special strain and relative structural weakness", and it was also the object of his invention to "satisfactorily eliminate such structural weakness at these points, and at the same time improve the appearance of the product". Lengel's remedy was "to provide substantially isosceles traingular reinforced extensions" Lengel also employed "reinforced high splice and reinforced foot yarns beyond the heel pocket junction". Such additional yarns formed "a triangular shaped reinforcement" for the purpose of "protecting the weak apex point of the heel pocket ordinarily found in stockings as commonly made". This is practically what Hahn did.
The fact that Lengel's stocking is a seamless stocking instead of a full fashioned one is of no importance. The distinction does not appear in the claims of the Hahn patent. In Julius Kayser & Company v. Rosedale Knitting Company, 3 Cir., 98 F.2d 839, certiorari denied 305 U.S. 649, 59 S. Ct. 230, 83 L. Ed. 419, the Circuit Court of Appeals for this circuit in affirming the District Court, 18 F.Supp. 836, held that there was no invention in applying to the hosiery art what was well known in the weaving art. If there is no invention in taking something from the weaving art to the hosiery art, there is no invention in taking something from the seamless hosiery art to the full fashioned hosiery art. I conclude that the Hahn patent was anticipated by the Lengel patent.
The step taken by Hahn has made no new contribution to the art. It was but a trifling improvement over the former art of reinforcement and one which was a spontaneous occurrence in the course of normal development of the art. Inventive faculty was not requisite to the design. The law will not protect mere shadows of invention and devices amounting at most to a minor improvement in the art. An advance plainly indicated by the prior art is not patentable. Atlantic Works v. Brady, 107 U.S. 192, 2 S. Ct. 225, 27 L. Ed. 438; Belding Mfg. Co. v. Challenge Corn-Planter Co., 152 U.S. 100, 14 S. Ct. 492, 38 L. Ed. 370; Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 55 S. Ct. 455, 79 L. Ed. 1005.
It appears that every one in the business of manufacturing hosiery was groping and fumbling for a slight novelty in design and operation of reinforcement and that mere application of common sense and skill resulted in the design patented by Hahn. As was said in Re Campbell, Cust. & Pat.App., 48 F.2d 915, 917: "There are numerous authorities to the effect that ordinarily the application of reinforcing devices to a structure does not involve invention".
The Supreme Court in the case of Dunbar v. Myers, 1876, 94 U.S. 187, 199, 24 L. Ed. 34, 39, stated that: "Meritorious inventors are entitled to protection; but it is settled law that a mere carrying forward of an original patented conception, involving only change of form, proportions, or degree, or the substitution of equivalents, doing the same thing as the original invention by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results".
Concluding that the Hahn patent was anticipated and is invalid for lack of invention, it is unnecessary to determine the questions of infringement and laches.
Conclusions of Law.
1. The Hahn patent in suit, No. 1,715,323, is anticipated by the prior art patent to Lengel.
2. In the light of prior art, the Hahn patent is invalid for lack of invention.
3. The bill of complaint should be dismissed with costs awarded to defendant.
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