DAVIS COMPANY v. RUSSELL-HARVELLE HOSIERY MILLS

• Decision Date: 10 April 1956
• Docket Number: Civ. No. 282-R.
• Citation: 140 F. Supp. 32
• Court: U.S. District Court — Middle District of North Carolina
• Parties: The DAVIS COMPANY v. RUSSELL-HARVELLE HOSIERY MILLS, Inc.

140 F. Supp. 32

The DAVIS COMPANY v. RUSSELL-HARVELLE HOSIERY MILLS, Inc.

Civ. No. 282-R.

United States District Court M. D. North Carolina, Rockingham Division.

April 10, 1956.

James P. Burns, Washington, D. C., Jordan & Wright, Greensboro, N. C., Charles A. Noone, Chattanooga, Tenn., Robert E. Burns, New York City, for plaintiff.

Eaton, Bell, Hunt & Seltzer, Charlotte, N. C., for defendant.

HAYES, District Judge.

The plaintiff brings this suit to restrain the defendant from infringing certain claims in its Patent, towit, claim 4 of Getaz Patent No. 2,230,402, claims 1 and 7 of Getaz Patent No. 2,230,403 and claim 1 to 6 inclusive of Getaz Patent No. 2,344,350, and for damages for past infringement. The defendant admits that its stockings, exemplified by plaintiff's Exs. 1, 2 and 8 come within the language of the patent claims in suit but pleads invalidity, relying on the teachings of fifteen prior patents, only two of which require discussion, namely, British Patent to Sturgess, No. 4418 of 1886 and U. S. Patent to Getaz, No. 2,054,217 of 1936.

For a history of the Getaz Patents reference is made to Davis Co. v. Baker-Cammack Hosiery Mills, D.C., 86 F. Supp. 180, modified 4 Cir., 181 F.2d 550, certiorari denied 340 U.S. 824, 71 S.Ct. 58, 95 L.Ed. 605. That case involved 167 hosiery manufacturers and challenged the validity of the patents and specifically the present claim in suit. They were held valid and infringed. While this defendant was not a party to that litigation, the present defendant is waging this battle, in part at least, by financial assistance from several manufacturers who were enjoined in the former litigation and by some who are now licensees under the plaintiff.

The views of this court expressed at great length in the opinion, supra, are not changed by the facts disclosed in this trial. Hence the views expressed in that case are adopted for the purposes of this case.

Of all the prior art relied on by the defendant to establish invalidity, its expert witness selected Sturgess and Getaz '217 to show invalidity. Sturgess Patent No. 4418 of 1886 was thoroughly considered in the former case both by the trial court and by the Court of Appeals and both held that the present claims in suit of the patents in suit were valid over Sturgess. This trial disclosed nothing new which warrants a different conclusion. What was said of the Sturgess Patent in the former case applies with equal force in the present suit.

It remains necessary to consider the expired Getaz Patent '217 and its effect on this case.

It is the claim of defendant that Getaz '402, '403 and '350 cover nothing more than a duplication of the identical subject matter disclosed and claimed in the expired '217 patent. Hence defendant claims that the disclosures covered by the '217 patent became public property upon the expiration of the patent. Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47. However, the expired Getaz Patent '217 relates to a method adopted and capable of producing commercially usable anti-ravel selvage edges other than that of the Getaz Patent '350, while the elastic anti-ravel selvage edge article of Getaz Patent '350 can be produced by methods other than that of Getaz Patent '217. '402 relates to the novel...