LEONA GARMENT CO. v. JENKS et al., 164 F. 188

SEAMAN, Circuit Judge (after stating the facts as above). The patent in suit, No. 781,635, is for a combination undergarment for women, which unites in one garment an underskirt and drawers, with each complete in itself, and the device for such combination is plainly described in the specifications and embraced in the single claim of invention.

While various means and forms of combination garments were in use and well known prior to the application for this patent— including combined skirt and trousers for riding and bicycle habits— and two prior patents appear for combined skirt and drawers, the novelty of this ‘patentee’s device for such combination is not impeached, as we believe, by any of the patents introduced or other evidence in the record, and its utility is well established.

The validity of the patent is upheld by the decree appealed from, but one of the combination skirt and drawers made by the appellees, under the name of “Ideal”— referred to in the record as “Defendants’ Garment No. 2” —is adjudged to be no infringement of the patent. This ruling upon the issue of infringement is assigned as error, and the solution is not free from difficulty, as it rests on

interpretation of the monopoly granted, in the light of the,prior art, without the aid of expert testimony on behalf of the appellees, or representation by counsel at the bar of this court. We have considered, however, the careful opinion of the trial court, together with the brief there submitted by counsel on the part of the appellees '(as certified to this court), and an intelligent oral explanation of the respective garments in question, made by one of the appellees at the bar of this court, on leave granted, for want of representation by counsel.

The purpose of the invention, as stated in the patent, wa.s to make such combination of skirt and drawers in one garment that the function of each was preserved, with ready adjustment to various figures, “draping gracefully,” and eliminating the double thickness of material at the waist and hips imposed upon the Nearer of two garments.

It clearly appears that each of these functions was desired in a combination garment for women, and that the want was not satisfactorily met by either of the prior patent combinations in evidence — Burgard’s, No. 700,477, or Chittenden’s, No. 765,556- — as both failed to provide the needful skirt effect in covering the openings in drawers, front and rear, in various movements of the wearer", aside from other defects.

The combination garment of the patent, as therein specified, “embodies three main pieces, which for convenience of description may be termed'the ‘body’ or ‘skirt’ piece and the ‘drawer leg pieces.’ ” The body piece is cut from the material into segmental shape, “nearly equal to a complete circle (as shown in figure 3 of the drawings), to give the requisite fullness about the hips when the garment is made up”; and the longer periphery forms the bottom of skirt and drawers, while “the inner or shorter curved edge forms the top or waist line.” The two leg pieces for drawers (shown in figure 3) are cut triangular in shape and attached as wings to the face of the skirt piece, extending from top to bottom, “each wing being gored at the top to form an opening from the waist to the crotch, and united to the extreme side edge of the skirt from the crotch to the skirt bottom; the forward edges of the drawers forming the front of the skirt and being adapted to overlap each other.” These parts united form “a ready-made” garment, which appears to possess all of the qualities above stated as the objects of the invention, and all due to the novel devices of segmental shape for the basic skirt piece, with the triangular shape of the two wing-pieces, gored and arranged thereon to make the drawers, and the overlapping provision for the front of the drawers, so that they close “in coatlike manner,” thus giving both complete skirt effect at the front and adjustibility to the garment.

These elements in combination arc distinctly set forth in the single claim of the patent, and their patentable novelty in such combination is established by the testimony. In the appellees’ garment (the “Ideal”), as we understand its structure, every element of the patent combination is employed, substantially, for like purpose and with like result. The alleged distinctions are: (

a) That the skirt portion is made of three pieces, instead of a single piece, of material; (

b) that the wing pieces are “formed integrally with a part of the skirt portion,” instead of cutting them out separately to be sewed thereon, as specified in the patent; and (

c) that such severance of the skirt affords advantage in the fit of the garment, because the bias of the material can be placed at the rear, instead of sides. Nevertheless, the skirt portion enters into the combination in segmental form, and each

part is shaped and arranged therein as devised by the patentee. These changes, therefore, due to the first-mentioned expedient of laying out the segmental form of skirt in three pieces — while the patent suggests merely two pieces as an alternative method — furnish no escape from infringement, as we believe, although they may improve the fit, as alleged. We are of opinion, accordingly, that error is well assigned for denial of relief against such infringement, and the decree of the Circuit Court is reversed, with direction to grant relief in conformity herewith.