Block v. Nathan Anklet Support Co., 371.

Decision Date16 June 1925
Docket NumberNo. 371.,371.
Citation9 F.2d 311
PartiesBLOCK v. NATHAN ANKLET SUPPORT CO., Inc.
CourtU.S. Court of Appeals — Second Circuit

Hans V. Briesen and Morris Kirschstein, both of New York City, for appellant.

James Love Hopkins, of St. Louis, Mo. (Redding, Greeley, O'Shea & Campbell, of New York City, of counsel), for appellee.

Before ROGERS, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

On the issue of infringement we think there should be no doubt. A reversal end for end is as readily accomplished by revolving the pad on a diameter through an angle of 180° as by rotating it in its own plane to a similar extent. Owing to the form of the defendant's pad, a lunette or segment, it was necessary to do this to effect the result of the patent; but, even were the specifications more expressly limited than they are, we should regard it as an equivalent of the patent. If the patent is to have any value whatever, it ought not to be possible to evade it so easily.

Nor do we think the supposed prior use of 1913, Exhibit L, is a defense. We of course recognize it as proved, but we think it did not embody the invention. That the pad could be reversed, and the position of the hump changed, is quite true. We agree, as well, that the mere failure of any one to reverse it would not save the patent. In this we cannot agree with the reasoning of the learned trial judge. But the shape of the wedge and pad forbade the idea that the pad should be put in blunt edge first. The insole and pad were sold and used in combination, and the shape of each made it clear that the pad should enter by its sharp end. If any one had reversed it, he would have perverted it from its plainly intended position; the design of the combination would have cried out against it. An earlier device which must be distorted from its obvious design cannot be an anticipation. United Shirt & Collar Co. v. Beattie, 149 F. 736, 739, 79 C. C. A. 442 (C. C. A. 2). The pocket was, it is true, made ample enough to allow of lateral movement, but, while that suggested some accommodation, it was not of the necessary kind. For whatever it was worth the invention still remained in nubibus. The fact that the plaintiff during the trial extended his pretensions to cover such a device is not conclusive upon him. Inordinate claims create no estoppels.

The last and most difficult question relates to the date of the defendant's own invention of the infringing soles. The evidence is as follows: Marteau went into the employ of Nathan in November, 1918, and swore that already at that time he had invented the infringing pads, and had disclosed them to Nathan. In this Nathan corroborated him. He produced some drawings, undated, to show what Marteau had made. While some of these may in fact have been intended to show asymmetrical longitudinal pads, they are by no means clear in that respect. This may be due to difficulties of perspective, but the fact remains. They do not confirm his evidence; so far as we can see, they are quite consistent with a later invention of asymmetrical pads.

However, Nathan put in evidence a pad, longitudinally asymmetrical, which he said was the matrix for his molds and had also been made in November. Naturally it bore no date, and the time of its production rests solely on his testimony, in this detail not corroborated by Marteau. This model Nathan swore he sent to two rubber companies, who gave him bids for the manufacture of molds. The bid of the United States Rubber Company was dated December 31, 1918, that of the La Favorite Company, January 2, 1919. The second he accepted on January 9, 1919, a week before Block filed his application. It is clear that no molds were made before that date. These letters, though produced at the trial, were not offered in evidence, and we have no means of knowing how far they corroborate Nathan, or identify Exhibit W as in existence at their date. We can...

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21 cases
  • Kearney & Trecker Corp. v. Cincinnati Milacron, Inc.
    • United States
    • U.S. District Court — Southern District of Ohio
    • October 17, 1975
    ...(2 Cir., 1940), cert. den., 311 U.S. 718, 61 S.Ct. 441, 85 L.Ed. 468; and must be of a completed invention, Block v. Nathan Anklet Support Co., Inc., 9 F.2d 311, 313 (2 Cir., 1925); Stearns v. Tinker & Rasor, 220 F.2d 49, 56 (9 Cir., 1955), cert. den. 350 U.S. 830, 76 S.Ct. 62, 100 L.Ed. (3......
  • Antici v. KBH CORPORATION
    • United States
    • U.S. District Court — Northern District of Mississippi
    • February 4, 1971
    ...* * * An earlier device, which must be distorted from its obvious design, cannot be an anticipation." Block v. Nathan Anklet Support Co., 9 F.2d 311 at 312 (2 Cir. 1925). 12 35 U.S.C. § 103. Conditions for patentability; non-obvious subject A patent may not be obtained though the invention ......
  • Diamond International Corp. v. Maryland Fresh Eggs, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • April 25, 1974
    ...Palmer, Massachusetts, and Defendant's in Lawrenceville, Georgia. Each has plants at other locations. 8 Tr. p. 2373. 9 See Block v. Nathan, 9 F.2d 311 (2 Cir. 1925), cited in Cowles Co. v. Frost-White, 174 F.2d 868 (2 Cir. 10 Defendant's Main Brief After Trial, pp. 42-43. 11 It is unnecessa......
  • Minneapolis-Honeywell Regulator Co. v. Midwestern Inst., Inc., 57 C 1267.
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 21, 1960
    ...(35 U.S.C. § 102) public (Rem-Cru Titanium, Inc. v. Watson, Commissioner of Patents, D.C.1957, 152 F.Supp. 282; Block v. Nathan Anklet Support Co., Inc., 2 Cir., 1925, 9 F.2d 311; Gayler et al. v. Wilder, 1850, 51 U.S. 477, 10 How. 477, 13 L.Ed. 504) knowledge. Prior art need not have been ......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter §7.02 Anticipation
    • United States
    • Full Court Press Mueller on Patent Law Volume I: Patentability and Validity Title CHAPTER 7 Novelty, No Loss of Right, and Priority [Pre-America Invents Act of 2011]
    • Invalid date
    ...at 1374.[67] Chudik, 851 F.3d at 1374 (quoting In re Wells, 53 F.2d 537, 539 (C.C.P.A. 1931) (quoting Block v. Nathan Anklet Support Co., 9 F.2d 311, 312 (2d Cir. 1925)); citing also Topliff v. Topliff, 145 U.S. 156, 161 (1892) (prior art that must be modified "to accomplish the function pe......

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