I. B. Kleinart Rubber Co. v. Stein , 133 F. 228 ( 1904 )

GROSSCUP, Circuit Judge,

after the foregoing statement of facts, delivered the opinion of the court:

Whatever basis for the charge of infringement in this case the Parramore hose suspender may have, must be found in the claim that Parramore, for the first time, constructed a suspender that combined duplicate suspension tapes or elastics with a single hanger; such hanger being adapted to be hung on the stud of the corset clasp, but easily detachable therefrom. No decree for appellant could be based upon the introduction of the arched metallic plate providing a convex upper edge, from which the hook that engages the corset stud extends; for a plate of that form is not used in appellee’s device. No decree could be based upon the specified piecing together and seaming of the fabric to the hanger piece; for this was only a means adapted to the use of the arched plate. Besides, the appellee is not shown to have followed such seaming and piecing.

Whatever practical merit the Parramore suspender has, lies in the fact that, as an entirety, it enables the wearer to suspend her stockings to the lower stud of her corset, whereby, when walking, the suspender has a tendency to press in the stomach, but when sitting, is free from tension, thus becoming a help to what is known as a straight front. Another merit is that the suspender closely fits the figure of the wearer, thus allowing garments to fall over it, easily and gracefully, and without the disfigurement produced by the use of safety pins. Whatever patentable character the alleged invention has, must be found, then, in the fact that Parramore was the first person who has adapted to this new desideratum the precise mechanical means that would carry it out.

The difficulty, however, with appellants’ case is, that all these advantages named are potentially present, at least, in the Andrews and other prior patents; and that all the mechanical means to effectuate them are embodied in the prior patents cited. The manifestness of this is so far recognized by counsel for appellant, that their chief argument to obviate its effect upon the fortunes of the case is, that though the Andrews and other patents, potentially anticipate the Parramore patent, the supporters described therein require readaptation to fit them to the uses to which the Parramore patent is put.

The Andrews patent was a side hose supporter. The readaptation referred to, is its tranference from the side to the front; as also the shortening of the suspenders made necessary by the fact that the distance from the corset stud, to the hose in the front, is less than the distance from the corset, where side suspenders are fastened, to the hose.

We cannot bring ourselves to the connclusion that a shortening of the suspenders, so as to adapt them to the shorter line to be traversed, is patentable invention. Such shortening would suggest itself, it seems to us, to any wearer who had occasion, for any reason whatever, to transfer the suspenders from side to front.

Nor can we bring ourselves to the conclusion that the mere transfer of the hanging point of the suspender, from the side of the corset to its front, is patentable invention. Straight fronts, in the figure of women, having come into vogue, it appears to us to have been but the ordinary and natural exercise of common sense, to have brought the hose supporter from the side to the front. Patentability cannot be decreed to every little shift that a woman may make in the arrangement of her garments, or the location of the means through which such arrangements are effected.

Parramore v. Taylor—decided in the Circuit Court of Appeals for the Second Circuit — 114 Fed. 97, 52 C. C. A. 45, it is true, sustained the Parramore patent. But that case was decided on a record from which the court found, as a fact, that the Parramore patent was the first to describe a complete detachable device that sustained both stockings from a single existing point of support on the corset. The fact, as thus found, was the pivot on which that case turned. From the record before us we are unable to find that fact. Either the Andrews patent was not brought distinctly to the attention of that court; or for some other reason, the court failed to see, as it appears plain to us, that the Andrews patent, in mechanical means, adaptable to a detachable device that will sustain both stockings from a single point of support on the corset, is identical with the. mechanical means employed by Parra* .more.

The decree of the Circuit Court is affirmed.