Way v. Hygienic Fleeced Underwear Co.

Third Circuit

Way v. Hygienic Fleeced Underwear Co.

157 F. 1006, 85 C.C.A. 680, 1907 U.S. App. LEXIS 3966

CourtCourt of Appeals for the Third Circuit

DecidedNovember 26, 1907

DocketNo. 19

StatusPublished

This text of 157 F. 1006 (Way v. Hygienic Fleeced Underwear Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Way v. Hygienic Fleeced Underwear Co., 157 F. 1006, 85 C.C.A. 680, 1907 U.S. App. LEXIS 3966 (3d Cir. 1907).

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Opinion

DALLAS, Circuit Judge.

This is an appeal from a decree dismissing the bill in a suit which was brought upon the second claim of patent No. 593,954, issued to John Howard Way, for a chest and neck protector. Way v. Hygienic Fleeced Underwear Company (C. C.) 150 Fed. 374., - The first and third claims ,of this, patent were held to be invalid in the case of Way v. McClarin (C. C.) 91 Fed. 663, and (on appeal) 96 Fed. 416, 37 C. C. A. 516. It is true-that in that case the claim now in question was not involved; but we think that the opinions which were delivered, for this court, and by the Circuit Court, are. as applicable to claim 2 as to the claims- which were then actually passed upon. ■ The difference relied on to distinguish that claim from the others is that it alone directs that the collar and depending flap of the protector shall be formed of a single piece, and we have not been convinced that in pro-, viding for this detail the inventive faculty was exerciséd. In the specificatiqn it was said i that “the garment is * ' * * preferably formed with its parts integral,'tñe entire g¿rment being formed from a single piece of knit goods,” and, no doubt, it is desirable that it should be so formed; but we cannot believe that any one skilled in the art would not have recognized this advantage for himself, or would have needed any instruction for its attainment. The substance of the matter, as we view it, is that a seam to connect the collar and -the flap is objectionable, but that its omission-is well within- the réalm Of mere mechanical dexterity. The decree is affirmed.

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DALLAS, Circuit Judge.

This is an appeal from a decree dismissing the bill in a suit which was brought upon the second claim of patent No. 593,954, issued to John Howard Way, for a chest and neck protector. Way v. Hygienic Fleeced Underwear Company (C. C.) 150 Fed. 374., - The first and third claims ,of this, patent were held to be invalid in the case of Way v. McClarin (C. C.) 91 Fed. 663, and (on appeal) 96 Fed. 416, 37 C. C. A. 516. It is true-that in that case the claim now in question was not involved; but we think that the opinions which were delivered, for this court, and by the Circuit Court, are. as applicable to claim 2 as to the claims- which were then actually passed upon. ■ The difference relied on to distinguish that claim from the others is that it alone directs that the collar and depending flap of the protector shall be formed of a single piece, and we have not been convinced that in pro-, viding for this detail the inventive faculty was exerciséd. In the specificatiqn it was said i that “the garment is * ' * * preferably formed with its parts integral,'tñe entire g¿rment being formed from a single piece of knit goods,” and, no doubt, it is desirable that it should be so formed; but we cannot believe that any one skilled in the art would not have recognized this advantage for himself, or would have needed any instruction for its attainment. The substance of the matter, as we view it, is that a seam to connect the collar and -the flap is objectionable, but that its omission-is well within- the réalm Of mere mechanical dexterity. The decree is affirmed.

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Bluebook (online)

157 F. 1006, 85 C.C.A. 680, 1907 U.S. App. LEXIS 3966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/way-v-hygienic-fleeced-underwear-co-ca3-1907.

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