Jordan Marsh Co. v. Wolff, 3051.

• Decision Date: 27 November 1935
• Docket Number: No. 3051.,3051.
• Citation: 80 F.2d 314
• Parties: JORDAN MARSH CO. v. WOLFF et al.
• Court: U.S. Court of Appeals — First Circuit

80 F.2d 314 (1935)

JORDAN MARSH CO. v. WOLFF et al.^*

No. 3051.

Circuit Court of Appeals, First Circuit.

November 27, 1935.

George N. Goddard, of Boston, Mass., for appellant.

Herbert A. Baker, of Boston, Mass. (Alan B. Bagley, of Boston, Mass., on the brief), for appellees.

Before MORTON, Circuit Judge, and MORRIS and McLELLAN, District Judges.

MORTON, Circuit Judge.

This is a suit for infringement of patent to Wolff No. 1,787,098, dated December 30, 1930, for union suits. The defenses are invalidity and noninfringement. Upon final hearing the District Judge decreed in favor of the plaintiffs that the patent was valid and infringed, with the usual provisions for an injunction and accounting. The defendants have appealed.

The patent relates to a kind of under-clothing in which the body and leg portions are combined into a single garment, called a "union suit." Such garments had been in common use for many years before the Wolff application was filed. They must be so fashioned that, for toilet purposes, the seat portion can be let down or pushed aside. The Wolff patent deals with this part of the garment. In his construction the top of the seat portion is loose at the back of the waist and permanently fastened at the sides, and is given such fullness that it can be pulled down when the wearer goes to the toilet. It is retained in normal position by an elastic tape carried in a hem at the upper edge of it and fastened at the sides of the waist. The stretching of the elastic in connection with the fullness allows the seat portion to be pulled down and the pressure of the elastic returns it into position when the pull is removed. There are no buttons.

The evidence indicates that the Wolff suits at first were not well received commercially, but they have recently achieved marked commercial success. The difficulty with them when they first came out was that the elastic tape then in use did not stand up well under washing. It was a serious objection. Two or three years after the patent was issued a new kind of elastic was developed which lasts much better. It overcame the objection mentioned, and sales of Wolff garments rapidly expanded. The plaintiff's evidence indicates that they may dominate the market for children's wear.

The first question is whether the patent shows invention over the prior art. There was little controversy as to the facts. The oral testimony about the prior art was for the most part uncontradicted, and the prior patents speak for themselves. In very early forms of these union suits, which go back more than a generation, there was a seat flap, held up by buttons at the sides and back of the waist. The buttons were difficult for small children — many persons will remember little folks backing up to them with a request to be "buttoned up" — and it is said gave trouble when the garments were washed. As early as 1914, Greenewald, in a patent on this sort of garment, said: "The center button and button hole may be omitted, if desired, and means provided for drawing the free edge of the flap tight about the waist so it will not gap, the bottom edge 181 of the back section extending a substantial distance below the edge 391 (of the seat portion)." Page 2, lines 54-60, Greenewald patent, May 19, 1914. This apparently refers to the use of an elastic, as something well known for such purposes. In 1916, Kline patented a union suit of which he said: "The object in view is the production of a seat construction which will remain snugly and smoothly closed, without the use of buttons or other fasteners," etc. The Kline garment was made of knitted material, the elasticity of which allowed the seat to be pulled out of the way for toilet purposes and returned it to position when the wearer stood up. The top edge of the seat portion was permanently fastened at the sides and was loose across the back, like Wolff's. The lower part, or "tail," of the body portion extended down inside the seat...