The opinion of the court was delivered by: BYERS
This is an action in equity for the infringement of a patent. No issue is made as to infringement; it having been conceded that, if validity is found, the defendant's device infringes the plaintiffs' patent. The individual plaintiffs are the joint patentees named in patent No. 2,005,361 (application filed January 16, 1935; letters issued June 18, 1935) and the corporate plaintiff is the exclusive licensee thereunder.
The device is an article of head-wear for women, consisting of a visor or eye-shade which is attached to one half of a bandana which is cut diagonally for that purpose; the hypotenuse of the right angle triangle so formed is attached to the visor at its inner edge, so that the points of the crescent-like visor are equally distant from the respective ends of the hypotenuse so formed.
The article so constituted is adjusted to the head of the wearer so that the visor performs the office of an eye-shade, and it is held in position by tying said ends of the half bandana at about the nape of the neck of the wearer; the right angle portion of the device falls or drapes down the back of the wearer's head and, when the said ends have been tied in position, the entire cap or headcovering is held firmly in position.
There are two claims, reading as follows:
"1. As an article of manufacture, a cap comprising a piece of material for fitting over the head of a wearer to keep the wearer's hair in place, said piece of material being in the form of an isosceles triangle having two like corners and another corner with adjacent edges at right angles to each other which is designed to drape downwardly at the back of the wearer's head and be held in place against the wearer's hair by the tying together of the other two corners of the triangular piece of material, and a visor attached to said piece of material at the edge thereof which extends between the two like corners, said visor having a curved edge which is attached to the straight edge of the piece of material whereby the piece of material is puckered between the ends of the visor to produce bulging of the material and cause training of the same over and about the forehead of the wearer when the cap is secured in place when the cap is in use.
"2. As an article of manufacture, a cap comprising attached hood and visor portions which provide a fullness in the hood portion adjacent to and in the vicinity of the visor portion for allowing for the conforming of the material of the hood portion to the rounded fore-part of a wearer's head, said hood portion having ends extending substantially laterally of the cap from the ends of the visor and converging rearwardly from said ends so that the cap may be fastened to and cover a wearer's head upon the tying together of the ends over the downwardly extending rearward area of the hood portion at the back of the head, the inner edge of said visor portion being curved and attached to the material of the hood portion along a line thereon different in configuration from that of the inner edge of the visor, the material forming the hood portion of the cap being provided with the desired fullness by its attachment to the relatively stiffer visor."
The specifications and claims make it clear that an essential element of the device is that the visor has a curved edge to which is attached the straight edge of the material (which has been formed into an isosceles triangle as described above) "whereby the piece of material is puckered between the ends of the visor to produce bulging of the material and cause training of the same over and about the forehead of the wearer" when the cap is in use.
The testimony clearly establishes that a visor, so attached to the bias edge of the material resulting from the cutting of a bandana as described, is held in position so as to shade the eyes of the wearer without confining her vision below a horizontal plane extending about on a level with the eyes; this apparently results from the relation between the material and the visor which results from the puckering of the material where it is in contact with the curved side of the visor. A curved piece of material joined to a curved visor would not produce this effect, nor would a straight-edged piece of material joined to a straight visor, and it is the combination here shown upon which the plaintiffs rely to sustain their patent.
The article itself is novel for while visors held in position by bands or straps have been familiar for many years, and the use of a bandana as a headcovering is almost proverbial, the combination which has been described was new and useful when this patent was granted; the device has found ready and widespread acceptance so that imitation was prompt and accurate, and of course was conducted on a cutprice basis which has been detrimental to the patentees and their licensee.
The defendant urges that the joining of a bias edge to a curved edge is old in both dressmaking and millinery, and the evidence justifies that assertion, but this particular application of that well-known practice seems not to have occurred to any one engaged in the industry of producing feminine head-gear prior to this patent.
Apparently the defendant relies upon the following patents to demonstrate plaintiffs' lack of invention:
Harris, No. 1,239,910, granted September 11, 1917, for a headcovering "adapted for the use in the drying of the human hair after the same has been shampooed."
In this article a piece of fabric is joined to a straight visor, straight edge to straight edge; the visor is tied into position by strings of tape passing under the hair of the wearer at the nape of the neck and the fabric element falls over the ...