Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WARNER BROS. CO. v. TREO CO.

June 11, 1940

WARNER BROS. CO.
v.
TREO CO., Inc.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is an action for infringement of Field patent No. 1,995,801. The patent in suit was issued March 26, 1935 upon an application filed March 11, 1933 as a division of an earlier application, Serial No. 623,093, filed July 18, 1932. The patent relates to corsets or girdles of elastic fabric.

The plaintiff claims infringement of claims 1, 2, 3, 4, 5, 6, 7, 9 and 10, which read as follows:

 "Claim 1. In a garment of the character described adapted to encircle the hips of the wearer, material capable of stretching up and down as well as across and lying at least in part between the hipbone lines at the sides and the center line at the back of the wearer, said material being formed of elastic yarn, and material secured to the first-named material and being capable of stretching up and down but non-stretchable across the wearer, the second mentioned material being located in a zone between the upper and lower edges of the garment, said garment being adapted to encircle the hips of the wearer, to extend above and below the plane of maximum girth taken through the posterior portions, and to stretch up and down at substantially all points overlying the posterior portions of the wearer."

 "Claim 2. A garment of the character described including a plurality of panels of material formed of elastic yarn and adapted to stretch both up and down and across, said panels lying at the sides of the wearer and joined to panels of elastic material adapted to stretch up and down but not across, said second-named panels being substantially at the center of the front and back of the garment and within the girth thereof, said garment being adapted to encircle the hips of the wearer, to extend below the posterior portions, and to stretch up and down at substantially all points overlying the posterior portions of the wearer."

 "Claim 3. A garment of the character described including a plurality of panels of material formed of elastic yarn and adapted to stretch both up and down and across, said panels extending the full length of the garment, and a panel at the rear of the garment secured along both its vertical edges to said material and adapted to stretch up and down but not across, said garment being adapted to encircle the hips of the wearer, to extend below the posterior portions, and to stretch up and down at substantially all points overlying the posterior portions of the wearer."

 "Claim 4. A garment of the character described, including material formed of elastic yarn and adapted to stretch both up and down and across and lying at least in part between the hip-bone lines at the sides and the center line at the back of the wearer, and material capable of stretching up and down but not across engaged adjacent an up and down edge to an edge of the first-named material, said garment being adapted to encircle the hips of the wearer, to extend below the posterior portions, and to stretch up and down at substantially all points overlying the posterior portions of the wearer."

 "Claim 5. The garment as claimed in claim 4 wherein the second-named material lies at the front of the garment, substantially at the center."

 "Claim 6. The garment as claimed in claim 4 wherein the second-named material lies at the middle of the back of the garment."

 "Claim 7. A garment of the character described including material formed of elastic yarn and capable of stretching up and down and across, and material at the rear of the garment adapted to stretch up and down but not across, extending longitudinally between portions of the first mentioned material and adjoining the same along a longitudinal dimension, the second mentioned material further extending the full length of the garment, said garment being adapted to encircle the hips of the wearer, to extend below the posterior portions, and to stretch up and down at substantially all points overlying the posterior portions of the wearer."

 "Claim 9. The garment as claimed in claim 1, wherein the second-named material overlies at least a portion of the posterior portions."

 "Claim 10. A garment of the character described, such as a corset, girdle or the like, adapted to be worn next to the body, to surround the hips of the wearer, and to confine the posterior portions, said garment comprising porous material formed at least in part of elastic yarn, extending below the posterior portions and being adapted to stretch up and down by virtue of its inherent elasticity, and other material adjoining said first-named material along an up and down dimension, formed of porous material made at least in part from elastic yarn and adapted to stretch both up and down and across the wearer by virtue of its inherent elasticity, said second-named material lying between the hipbonde lines at the sides and the center line at the rear of the wearer, and said first-named material being substantially non-elastic in directions around the wearer, said garment being adapted to stretch up and down over substantially all portions overlying the posterior portions of the wearer."

 Defendant pleaded in its answer by way of anticipation 37 prior patents, 5 prior uses, lack of invention, that the specification and claims are vague and indefinite and that the patentee does not point out and distinctly claim his alleged invention as required by Statute, and non-infringement.

 At the conclusion of the trial the Court decided that the claimed prior use by the defendant had not been established and that defendant's garments, Exhibits 6, 7 and 8, infringed. Exhibits 6, 7 and 8 infringe claims 1, 2, 4, 5, 6, 9 and 10. Exhibits 7 and 8 infringe claims 3 and 7.

 The objects of the invention, as stated in the patent, are as follows: "This invention relates to corsets, girdles and the like, and its principal object resides in the provision of an improved garment of this character including portions capable of stretching both up and down and across the wearer and other portions capable of stretching up and down but not across, for purposes hereinafter indicated. Another feature resides in novel provisions for bones in such garments."

 The plaintiff was organized in 1874 by the father and uncle of Lucien T. Warner, plaintiff's witness, who has been employed by plaintiff since 1901. He is, undoubtedly, fully familiar with the business of manufacturing corsets, corselets and girdles. He testified that the rear portion of a woman's body is from two to four inches longer vertically when she is seated or bending over than when she is standing erect, and that the purpose of making the back and front panels elastic vertically is to prevent the garment from riding up. His testimony is accepted as correct. He testified:

 "Q. 9 This garment, plaintiff's Exhibit 2 for identification, was manufactured by your company under this patent? A. It was.

 "Mr. Walker: Then I offer it in evidence.

 "Q. 10 Will you please explain to the Court where in that garment the constricting effect is furnished? A. The constricting function is furnished in the side panels, the horizontal elasticity of the side panels.

 "Q. 11 The back panels are inelastic horizontally, back and front panels are inelastic horizontally, Mr. Warner? A. They are.

 "Q. 12 Are they elastic vertically? A. They are elastic vertically.

 "Q. 13 Will you explain to the Court the reason for that, speaking first of the back panel? A. The reason for the elasticity vertically of the back panel is because if that were not elastic vertically the garment will ride up on the figure. The problem of corseting a woman about the hips involves keeping it in place so that it won't slide out of place, in which case it does not perform the function for which it is intended. In a sense, a woman does not stand erect or stand still all the time, but sits down, kneels down, leans down to pick up things from the floor, and so forth, in her ordinary life. When she wears a garment that has no vertical elasticity extending from about the hip-bone on one side to about the hip-bone on the other side and around her back, the garment that she wears will slide up unless it is held so firmly down by hose supporters anchored to the stockings that it simply can't slip, in which case it will come down. In other words, we know by measurements that when a woman leans over the hinge of the body, or at the point where the legs are joined to the body, causes an elongation from the waist-line down over the buttocks to a point below the buttocks. That elongation, according to the size of the woman and her general conformation, will be from two to four inches, so that that line actually measures from about two up to about four inches more when she sits down in a chair than when she is standing erect.

 "Now, every time she sits down, if this garment will not extend vertically and follow the skin down, when she stands again a portion of her body will have come out of the corset, and will no longer be covered by it, and either the whole corset will ride up or it will ride down, or what is more likely, it will draw itself together and wrinkle up because the dimensions of a woman around her waist are smaller than the dimensions around the hips, and the tendency is for a garment to creep up into this narrower horizontal circumference.

 "Q. 14 Where would this riding down occur, at the top rather than at the bottom, if it occurred? A. If it occurred the riding down would occur at the top.

 "Q. 15 And riding up would occur at the bottom? A. Riding up would occur at the bottom. Therefore, since we have learned that for the garment to actually stay in place without subjecting it to an enormous strain to hold it down, it is necessary to have vertical elasticity which will extend around the entire posterior portion of the body.

 "Q. 16 Is it feasible to fasten the back and sides of the garment down firmly enough with hose supporters to prevent it from riding up? A. No, because it will tear the hose, the silk hose that the women wear will not stand any such strain.

 "Q. 17 Why is that back panel made inelastic horizontally? A. Well, that is because the women do not desire to have their buttocks round out in the rear, and if it is elastic horizontally across there, it will round out.

 "Q. 18 The front panel is inelastic horizontally to confine the abdomen in the same way? A. The front panel is inelastic horizontally in order to confine the abdomen, because there is also a tendency to round out.

 "Q. 19 Does the part of the body that is covered by a part of the side panel of this garment elongate vertically when the wearer bends over or sits? A. Yes, that part of the body just in the rear of the center of the side of the hip, about a point where the hip-bones are, that portion of it, when the wearer sits or stoops, also elongates vertically."

 The garment provided in the patent in suit is known as the "two-way, one-way". The patent No. 1,919,292 granted to John Field in July 1933 related to a garment made of "two-way stretch" elastic fabric. This patent did not solve the problem of the patent in suit. That patent permitted the protruding portions of a woman's anatomy to round out in an undesirable way. The prevention of "riding up" was solved in the patent in suit without permitting such undesirable "rounding out". The circumferential constricting effect is accomplished by horizontal elasticity in the side panels of the girdles.The prevention of "rounding out", that is, controlling ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.