C. S. PIERCE CO. v. BELCHER, 239 F. 529

ALDRICH, District Judge. This case has to do with devices for holding shoes in shape while in nonuse, the idea being to keep the shoe substantially in the shape produced by wearing, and to accomplish this through means creating outward and extension pressure.

Although, upon hearing below, the validity of the plaintiff’s patent, known as the Legg patent, was not drawn directly in question, it is quite apparent that the view of the District Court was that it was difficult to find anything patentable and new in the combination which the patentee described; yet that court was not called upon to do so, and did not undertake to pass upon the question of the validity of the plaintiff’s patent.

Leaving the question of patentable invention undecided, was entirely consistent with the theory of the defense, which was, in view of the state of the art, thát the Legg patent should be construed as confining itself to the device which the patentee described, with the provisional contention that, if the Legg claims were given the breadth of scope claimed by the plaintiff, the patent would be void.

The District Court reached the conclusion that the claims of the Legg patent, from 4 to 7, inclusive, which were the only ones in issue, should be limited to the particular combination described, and, being so limited, that the defendant’s device did not infringe; and, as a consequence, all questions of the validity of the Legg patent became entirely immaterial.

The question of infringement thus becoming the only question in issue, it depended largely, if not altogether, upon the construction of the claims in the Legg patent, and the question of construction was reasonably and necessarily influenced by the prior state of the art. It is very clear that the Legg patent did not hold such a relation to the idea of preserving the shape of shoes in nonuse as, under the rules of liberal

interpretation, would justify a broad construction of its claims. In short, it was not in any reasonable or substantial sense a pioneer patent, because there were other patents and devices which had in view the idea of holding shoes in such shape or form as had been created by the wearer. The District Court refers to the earlier patents of Tyler and Thurell, with the observation that both described shoe forms with mechanical adjustments and means for automatic ■expansion.

At most, the patentee in the Legg patent, as he explains it in his specification, relies upon novel features of his adjustable shoe form as improvements, and he particularly describes his mechanical means for creating and guiding the expansive and contracting movement.

The learned judge presiding in the District Court considered and ■elaborated the state of the art, and made a careful analysis of the elements of both the plaintiff’s device and that of the defendant’s alleged infringing form and combination, with the result of finding and holding, in effect, that the defendant’s means for securing flexible and expansive connection between the two parts of his form: — which were ■combined in accordance with the Reinhardt patent of November 24, 1914 — differed no less substantially from those in the patent than from the means used in devices prior to both the Legg and Reinhardt patents.

That court’s appreciation of the prior art is so clearly expressed, and the elements mechanically combined and arranged in both the device of the plaintiff and that of the defendant are so carefully analyzed and stated by that court, that we need not cover such ground in detail at the necessary expense of reiteration; and this is so because, if the state of the art was such as to justify a construction limiting Legg to the combination which he described, and we think it was, the conclusion plainly and unmistakably results from an examination of the two devices that the defendant’s combination does not infringe.

It is our conclusion that the result reached in the court below was right; and— The decree of the District Court is affirmed, with costs of this court. (g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes