The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit for the alleged infringement of patent No. 1,569,823, issued by the United States Patent Office to Fred Maccarone, for shoe structure, granted January 12, 1926, on an application filed August 5, 1925.
The plaintiff Fred Maccarone is the owner of the legal title to the patent in suit, and the plaintiff Del-Mac System Corporation is the exclusive licensee of the patent in suit, subject to certain outstanding nonexclusive licenses previously issued to C.P. Ford & Co., P. Sullivan Shoe Company, Lax & Abowitz, Inc., and others, and excluding shoes using a welt construction.
The defendant does not, in its alleged infringing products, make use of any welt construction and therefore does not come under the exclusion as aforesaid.
The defendant is a New York corporation engaged in the manufacture of shoes in the borough of Brooklyn, and is licensed under the Sbicca patents Nos. 1,838,708 and 1,902,725.
A discussion of many of the questions considered in this suit, and a description of the method of constructing a turnedshoe, the cemented shoe, and a "McKay" shoe will be found in my opinion in Sbicca-Method Shoes, Inc., v. M. Wolf & Sons, Inc. (D.C.) 11 F. Supp. 239, which was based upon the Sbicca patents Nos. 1,838,708 and 1,902,725, the testimony and exhibits in which suit were in large part stipulated into the instant suit.
The defendant has interposed the defenses of invalidity and noninfringement.
The patent relates particularly to women's shoes.
This suit is based on claim 2 of the patent in suit.
The patentee says in his specification: "One of the principal objects of the present invention is to provide a shoe construction which while closely simulating in appearance when finished, a turned-sole shoe, is free from many of the objectionable features incident thereto."
After reciting what he considers objectionable features of what are known as "McKay" shoes, and turned-sole shoes, he says:
"In contradistinction to this, the present invention comprehends an inner integral shank and heel member and rand to which the upper is stitched, and to which, in turn, the outsole is stitched, thereby rendering the shank rigid and immovable with respect to the upper and outsole.
"The invention furthermore comprehends a shoe structure of the character set forth which when finished presents no rough exposed stitching at the juncture of the upper with the sole as is present in shoes of the turned-sole type.
"The invention furthermore comprehends a shoe structure which while closely simulating shoes of the turned-sole type, entails a considerable economy both in labor and expense; which is highly efficient in its ...