decided: May 11, 1891.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
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MR. JUSTICE BROWN delivered the opinion of the court.
A large amount of testimony was taken in this case in the Circuit Court, but all that we find it necessary to consider
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lies within a very narrow compass. Stripped of its verbiage, this patent consists simply of a shirt bosom bound at its edges and stitched through its binding to the body of the shirt. The custom of binding the cut edges of cloth, either for ornament or to prevent ravelling, is almost as old as the art of making garments. Indeed, the plaintiffs in this case frankly admit that "it was a matter of common experience to apply narrow bindings in various ways, in fact to apply 'folded bindings,' that is, bindings with their edges turned in under the body of the binding, to the edges of various parts of different parts of wearing apparel, to conceal the raw edges from sight and protect them from being frayed out. Moreover, as in the case of the Marr shirt, the free edges of 'flies' designed to be buttoned on to the shirt front had had their edges finished up (potentially at least, as suggested in the Marr patent) by some sort of binding. Dickies, also, had been made whose edges had been provided with a folded binding. Firemen's shirts, also, had been made of flannel, on the bosom part of which an extra thickness, cut out shield-shaped, had been secured by sewing through its edges."
Their expert Benjamin admits that detached bosoms or dickies had been bound with a strip of material folded on their outer edge and stitched to the bosom by a line of stitching passing through the inner edge of the outer fold of the binding, the bosom and the outer edge of the binding. Indeed, the patentee himself, who was sworn as a witness, admitted that his firm as early as 1869 or 1870 manufactured and sold shield-shaped detachable bosoms, or dickies, the raw edges of which had been bound by folded and stitched binding. It has also been the custom, time out of mind, to attach the bosom to the body of the shirt by a row of stitching, and in this connection plaintiffs admit that it was not new in the spring of 1874 (the established date of this invention) to make dress shirts by securing a linen bosom to the body of the shirt by a row of stiches passing through the edge of the bosom.
What then was there left for Cluett to invent? Nothing, apparently, but a separate line of stitches through the binding attaching the bosom to the shirt. But whether a separate line
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of stitches shall be used for this purpose, or whether such stitches shall pass through the binding or inside of it, is obviously a question of mere convenience, involving nothing which, under a most liberal construction, could be held to be an exercise of the inventive faculty. If bosoms had always been worn before as a separate garment, it is possible that cutting away the front of the shirt and inserting the bosom might have involved some slight invention, though it is very doubtful if it would sustain a patent; but as bosoms had long been bound by a folded binding, and, with or without such binding, had been attached to shirts by stitching, it would seem to approximate more closely to invention to make such attachment by a row of stitching which did not than by stitches which did, pass through such binding. In view of the simplicity of this device we find it impossible to escape the conviction that plaintiffs are laboring under a strong bias of self-interest in asserting that this improvement was "the result of careful and prolonged study and experiment." We think this case must be added to the already long list of those reported in the decisions of this court wherein the patentee has sought to obtain the monopoly of a large manufacture by a trifling deviation from ordinary and accepted methods.
In the view we have taken of this patent we do not find it necessary to consider or discuss the voluminous testimony upon the subject of anticipation.
The decree of the court below is
MR. JUSTICE BLATCHFORD did not sit in this case, and took no part in its decision.
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