Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
This action was brought in the District Court for the Southern District of New York by Custom Undergarment Corporation, the exclusive licensee, and by Mildred B. Teamer, the owner and patentee, for a temporary and permanent injunction and to recover damages for the alleged infringement of U.S. Patent No. 2,221,851 granted November 19, 1940, for a gown. The original defendant, R. H. Macy & Co., Inc., admittedly sold the accused garment after the patent was granted. It was manufactured by Jack Beckerman, Inc., which was allowed to intervene, to take over the defense and to file a counterclaim for a declaratory judgment.
When the case was called for trial, plaintiff Teamer did not appear by counsel or otherwise. The attorney for the other plaintiff informed the court that his client did not desire to proceed with the suit and he was allowed to withdraw. The defendant's attorney then presented his case on the counterclaim which consisted wholly of exhibits, no witnesses being called. The court found that the patent in suit "is wanting in invention over the prior art" and that the accused garment "does not utilize the invention of Teamer Patent No. 2,221,851." Conclusions of law to the effect that the complaint should be dismissed for want of prosecution, and that the patent was invalid and not infringed, were also filed.The decree dismissed the complaint and sustained the counterclaim.
On motion of plaintiff Teamer the decree, findings and conclusions were afterwards vacated and she was given an opportunity to be heard. The record does not show what occurred at that hearing, but thereafter the same findings and conclusions, with the exception of failure to prosecute as a ground for dismissing the complaint, were filed as before and the same decree was entered. She has appealed from that decree.
The grant of the patent is prima facie evidence of its validity. Mitchell v. Tilghman, 19 Wall. 287, 390, 22 L. Ed. 125; Wilkins Shoe-Button Fastener Co. v. Webb, C.C., 89 89 F. 982, 996. Whether several prior patents, which are all the evidence which has been presented to overcome the prima facie validity of the patent, do overcome it must control decision on the question of validity.
As the Teamer specifications show, the claimed invention has to do with a method of making undergarments for women from single thicknesses of woven materials like natural and artificial silk, cotton and linen, having two main sections, the skirt and the waist, with the latter subdivided into top and belt portions. The problems to be solved were (1) to make the garment fit snugly especially about the waist and yet have sufficient elasticity to be put on and taken off without the aid of stretchable material other than that of which the garment was made and without any opening, like a gusset, at or near the waist line; and (2) to accomplish this when the waist was attached to a skirt cut in the way called "on the straight." The advantage of having the skirt so cut was to prevent its creeing up at the front when the wearer sat down and its sagging when the wearer was standing. On this record it is to be taken for granted that the coinstruction shown achieves that advantage, for there is no evidence to the contrary.
The solution consisted of an arrangement of bias cut where stretching was desired and straight cut where it was not. Another advantage of the patented gown was its adaptability to changes in styles. The specifications show that bias cut as used in the patent is the cutting of the material diagonally across the weave. this was itself old, and that such material so cut would stretch was well known. What was said to be new is set forth in the specifications, in part as follows:
"The older straight-cut gown cannot under any circumstances be form fitting without providing an opening upon one side in order for the wearer to put the gown on, whereas openings are entirely unsatisfactory as they involve buttons, snap fasteners, hooks and eyes, so-called Zippers, and the like, all of which cause discomfort when the wearer turns and lies upon them. On the other hand, if not form fitting, the so-called straight-cut gown is not wide enough for comfort, unless it is constructed so large from top to bottom as to be shapeless, while this type is also extremely limited as to the number of styles which it may assume.
"The bias-cut gowns are form fitting without a side opening, but are characterized by a constant tendency to ride up the body of the wearer with each and every movement, unless made extremely wide in the skirt section, but which latter provision requires a large amount of material and can only be employed in the most expensive gowns. Also gowns whihc are cut strictly and entirely on the bias tend to fray at their seams, and if not very carefully cut, twist about the body of the wearer to such an extent as to result in a marked degree of discomfort.
"By comparison, the new design or construction herein described combines the best qualities of both the straight-cut and bias-cut types, as it includes a bias-cut belt which makes it form fitting without an opening; a straight-cut skirt, which makes it wider than either the straight-cut gowns or the ordinary well cut bias gowns, giving comfort and preventing twisting upon the wearer; requires a relatively small amount of material, which gives it an advantage over other types of gowns, as this enables it to be made relatively cheaper and still provide increased comfort; permits the waist top and bias belt to be so arranged and cut as to their minor details, as to make possible the gown assuming many styles with either high or low neck, high or low waist line, and either with or without sleeves."
It will be seen from the above, the contrary in no wise appearing, that the patented gown has these advantages flowing from the limitation of stretchability to the belt section of the waist cut on the bias combined with nonstretchability elsewhere. And it presumably will ...