HW Gossard Co. v. JC Penney Company
| Citation | 304 F.2d 515 |
| Decision Date | 22 June 1962 |
| Docket Number | No. 13621.,13621. |
| Parties | The H. W. GOSSARD CO., Plaintiff-Appellant, v. J. C. PENNEY COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Arthur C. Johnson, Edward C. Grelle, Chicago, Ill., Donald Malcolm, New York City, Brown, Jackson, Boettcher & Dienner, Chicago, Ill., of counsel, for appellant.
Samuel W. Kipnis, Chicago, Ill., Armand E. Lackenbach, New York City, for appellee.
Before DUFFY, MAJOR and SWYGERT, Circuit Judges.
This is a suit alleging infringement of Doyle United States Patent No. 2,803,822 for a foundation garment, issued August 27, 1957. The District Court held the patent to be invalid but did not pass upon the question of infringement. The judgment recited the patent "is invalid because it does not disclose invention, and claims 1 to 4, inclusive, of said patent are invalid and void."
Plaintiff is the manufacturer of a line of women's undergarments. Defendant is engaged in wide-spread merchandising activities including the sale of women's undergarments. Crescent Corset Company (Crescent) is the manufacturer of foundation garments which were sold by Penney, and Crescent is conducting the defense in this suit for defendant.
Crescent had plaintiff's commercial foundation garment before it when it designed the garments it furnished to Penney. It is admitted in this case that the accused garment is a copy of plaintiff's commercial garment.
The garment shown in the patent in suit comprises a main body portion or sheath defined by front and back panel sections, each composed preferably of light-weight, two-way stretch elastic material for encircling the body of the wearer from the waist downwardly below the hips. Two arrow-shaped bands are stitched on the inside of the front panel of the garment. These bands are composed of strips of elastic fabric each stretchable in a longitudinal direction only. They are converging strips which meet in an apex like an arrow. One of said bands has its apex adjacent to the center of the front section below the top and its divergent arms extend upwardly and are secured at their ends to the respective sides of the garment adjacent to the top thereof.
The other of the arrow-shaped bands has its apex adjacent to the top of the front section and above the apex of the first band and has its divergent arms extending downwardly across the arms of the first band, and is secured at the ends to the respective sides of the garment below the hip line and in the region adapted to overlie the thighs. The patent calls for the two bands being connected along substantially all of their edges to the front section of the garment.
The patent in suit further discloses a third arrow or V-shaped band composed of one-way stretch material. This band is stitched substantially along the edges of the band to the back portion of the garment.
Plaintiff stresses that the garment of the patent in suit conforms in its mode of operation to the functioning of muscles of the female human torso. No such statement appears anywhere in the patent. However, the patent does state "These one-way stretch lining bands cooperate with the two-way stretch body portion of the garment to lift the abdomen and control the hips and thighs, and the overlapping portions of said bands, being stitched together and thus being non-stretchable where overlapped in the region of the abdomen, exert an additional flattening effect on the uplifted abdomen. * * *"
Plaintiff relies heavily upon commercial success. The proof shows that plaintiff and a fully owned subsidiary, for a period beginning in 1957 and extending through August 25, 1961, sold 2,497,464 garments, having a wholesale value of $16,671,118. The total sales of the patented garment compared with the total sales of all garments regularly sold by plaintiff, amounted to 17.2% in the fiscal year 1957, but increased to 42.6% in the fiscal year 1960; and for the fiscal year 1961, beginning December, 1960, until August 25, 1961, such sales represented 41.7% of the total.
The District Court found that the feature of the claimed invention, which plaintiff insists is an advance over the prior art, is the convergent strips of arrow-shaped bands secured by stitching to the garment sections and which strips were made of elastic material and each stretchable in a longitudinal direction only. The District Court found such bands were well known in the prior art and were specifically disclosed in patents to Levy, No. 2,458,279 and Imershein, Re. 21,595. Neither Levy nor Imershein patents were a patent office reference.
The history of the application of the patent in suit shows there was one official action on February 25, 1957, in which the Examiner rejected all the claims originally submitted as substantially met by Oriano French Patent No. 1,106,002. The attorney prosecuting the application for the patent, presented an amendment cancelling all the claims originally presented, and substituting therefor the four claims which were finally issued in the patent. Each of such claims was limited to defining the strips of the converging strips of fabric as being stretchable in a longitudinal direction only. The attorney argued that the Oriano French Patents 1 and 2 were all "believed to be of two-way stretch elastic."
There is nothing in the Oriano patent which limits the Oriano patents to a two-way stretch elastic. Oriano speaks of elastic fabric rubber bands which ordinarily are stretchable in a longitudinal direction.
Whether or not the Oriano patent was limited to a two-way stretch elastic is not of prime importance. It would seem that if the Patent Examiner had considered along with the Oriano patent, the Levy and the Imershein patents which were limited to bands stretching longitudinally only, it is doubtful that the patent would have issued.
The patentee utilized the common teachings of the prior art, but she did relocate to some extent, the various...
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