Glagovsky v. Bowcraft Trimming Co.
| Decision Date | 05 June 1959 |
| Docket Number | No. 5435.,5435. |
| Citation | 267 F.2d 479 |
| Parties | Bernard GLAGOVSKY, Plaintiff, Appellant, v. BOWCRAFT TRIMMING CO. et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Robert H. Rines, Boston, Mass., David Rines and Rines & Rines, Boston, Mass., on the brief, for appellant.
Malvin R. Mandelbaum, New York City, Phillip J. Nexon, Boston, Mass., Lewis H. Eslinger, New York City, Goulston & Storrs, Boston, Mass., and Kenyon & Kenyon, New York City, on the brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This is an appeal from an order denying the plaintiff's and granting the defendants' motion for summary judgment in a suit for infringement of all five claims of United States Patent No. 2,792,656 for an "Ornamental Stud and Ornament Dangling Therefrom" issued to the plaintiff on May 21, 1957.
The first claim of Glagovsky's patent is for an "ornamental stud," generally known as a "nail head stud," which may be plain or ornamental and of any desired shape, as circular, square, diamond shaped, hemispherical, or pyramidal, having prongs attached to its periphery at right angles to its plane for penetrating the article to which the stud is to be attached and then clinched to hold the stud in place, the stud "being provided with an integrally projecting suspending fastening member from which any of a plurality of additional ornamental members may selectively be suspended to dangle freely." Claim 2 is identical with claim 1 but specifies that the integrally projecting fastening member is a ring; claim 3 specifies the fastening member to be a hook. Claim 4 is for the combination of the stud covered in claims 1, 2 and 3 with an ornament dangling from the fastening member of the stud. Claim 5 is for the combination described in claim 4 attached to "an article of wearing apparel." Although not so limited, the patented device was designed and is primarily intended for attachment to the uppers of women's shoes.
On the basis of affidavits, depositions and prior patents introduced as exhibits at the taking of the depositions, the District Court concluded that it was "unable to perceive invention" and therefore granted the defendants' motion for summary judgment and denied the plaintiff's.
The prior art and the patent claims are so simple that they can be readily understood by any normally intelligent person without the aid of expert testimony. There was, therefore, no error below in disposing of the plaintiff's suit on the motions for summary judgment and their supporting affidavits, depositions and exhibits. George P. Converse & Co. v. Polaroid Corp., 1 Cir., 1957, 242 F.2d 116, 120, and cases cited.
The defendants' infringement is freely admitted. Thus the only issue presented is whether the District Court's finding of invalidity for lack of invention can stand. We think that it certainly can.
The plaintiff-appellant invites us to reconsider our statement in Wasserman v. Burgess & Blacher Co., 1 Cir., 1954, 217 F.2d 402, 404,1 that § 103 of the Patent Act of 1952, 35 U.S.C. § 103, quoted in material part in the margin2 "merely codified the existing decisional law," and now hold that the section interpreted in its setting in the Act as a whole and in the light of its legislative history was intended by Congress to lower the standard of invention and put an end to its strict application as evidence in numerous decisions handed down in recent years. We decline the invitation for we do not find this case an appropriate vehicle for the undertaking. Glagovsky's device impresses us as so lacking in invention that the claims of his patent cannot be sustained even by applying the now statutory standard as liberally and as generously to the patentee as the wording of the statute permits.
There is some question as to the "art" to which the subject matter of the patented device pertains. Does it lie in the art of wearing apparel generally, or in the shoemaking art? Or does it belong in the art of personal adornment or in the narrower art of pendant personal adornments? It has a certain affinity with objects in each of the above "arts" without fitting definitely and exclusively into any one of them. We need not classify it in a particular art, however, for viewed against the background of any pertinent art it still does not seem to us to exhibit "that elusive something known as invention." Hawley Products Co. v. United States Trunk Co., 1 Cir., 1958, 259 F.2d 69, 72.
The plaintiff does not claim a plain or ornamental nail head stud with peripheral prongs for...
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