Citation Numbers: 26 F. 759
Judges: Sawyer
Filed Date: 9/1/1884
Status: Precedential
Modified Date: 9/9/2022
This is a suit upon two patents for improvements in the manufacture of boots. The first patent is number 204,068, dated May 21, 1878. It provides for a counter and counter-protector at the heel of the boot on the inside at the back of the boot. “To the inside of the back, B, is secured one end of a protector, E, which extends from a point about halfway up the boot-leg, where it is stitched to the back, down to the bottom of the stiffening, or counter, D, and is turned under the heel with the counter. The sides, E, of the protector, E, extend to points in front of the eye-seams, C, as shown in figures 2 and 3 in drawing, and are there secured by single rows of stitching, G.” The claim of the patent is: “A counter-protector, as hereinbefore described, extending from a point in front of one eye-seam over the seams to a point in front of the opposite eye-seam, substantially as described.” The boot claimed to be an infringement of this claim has a counter-protector on the outside, and not on the inside of the boot. It is extended to the edge of a lapped seam, but does not extend around beyond the seam. The party alleging an infringement insists that being on the outside does not make any difference; that it is a mere change of the location. That would be so, if the specification and claim did not make the location a part or element of the invention and an element in the claim which is specifically done here. It is stated to be on the inside, and passes from one eye-seam around beyond the other eye-seam, and -then stitched outside the eye-seam beyond, so as to cover, protect, and strengthen the eye-seam, and make a smooth seam there; one that will not chafe the leg. It is particularly described as being on the inside. Besides, there were several other boots with outside counter-protectors extended and fastened by a line of stitching beyond the seams introduced in evidence. They were introduced both for the purpose of showing an anticipation and also the state of the art. Supposing that they were inadmissible, as showing anticipation, as claimed by complainant, for want of notice, they were still admissible, as showing the state of the art.
The uncontradicted testimony shows that this mode of construction with outside protectors had been in use for years; the outside protector passing over beyond the eye-seam, and being stitched on the opposite side of the seam. This being so, the claim of complainant’s patent must be construed, not only with reference to the specific language of the specification and claim, but also with reference to
Besides in the boot that is churned to bo an infringement, in addition to its not having the counter-protector on the inside, the counter-protector does not extend beyond the eye-seam, C, and it is not fastened by a line oí stitching beyond the eye-seam. It only extends into the seam, and is there stitched as a part of the lapped scam. This extension and fastening by a lino of stitching beyond the eye-seaia is one of the elements oí tins claim, it is not such a boot in this particular as is here described in the specifications and claim; and in that respect, also, it fails Li) have one of the elements that make up the claim in this patent. It is clearly not an infringement of the patent, and the complainant cannot recover on that ground.
The same boot is claimed to infringe another patent in suit which the complainant owns, No. 214-,984. This patent was issued to one of the same parties to whom the preceding patent was granted; and this patent claims an outside counter-protector. Evidently the patentee did not understand that an outside counter-protector was covered by his prior patent for an inside counter-protector. He describes his invention in tins way: ‘‘E is the counter-protector extending vertically on the outside of the counter to a point considerably above the same, where it is secured by a row of stitches,'A. The lateral ends of the counter-protector pass to the interior of the boot., through the eye or side seams.” Instead of passing over the eye or side seams and being stitched on the other side, it passes through the eye-seam to the interior of the boot, and then passes beyond and is stitched to the inside. The ends “pass to the interior of the boot through the eye or side seams, and are fastened either by the stitches which form a part of the side seams alone or by the said stitches and one or more additional rows of stitches.” The patentee has so framed his specifications and claim, as to cover both cases; either the end of the protector combined with the side seam and stitched in with it and ending with the seam alone, or as stitched in with it, and then passing on beyond and fastened by other lines of stitching beyond the side seam, similar to that in the preceding patent. He bas given us a great many drawings in his specifications — eleven different drawings — intending to cover, doubtless, every possible form of fastening the counter-protector in the seam, and beyond the seam. The only one of them which the