Lindsay v. Stein

• Decision Date: 24 February 1882
• Citation: 10 F. 907
• Parties: LINDSAY v. STEIN. [1]
• Court: U.S. District Court — Southern District of New York

10 F. 907

LINDSAY v. STEIN. ^[1]

United States Circuit Court, S.D. New York.

February 24, 1882

Munson & Phillips, for plaintiff.

J. B Staples, for defendant.

BLATCHFORD C.J.

This suit is brought on letters patent No. 202,735, granted to the plaintiff April 23, 1878, for an 'improvement in sleeve supporters.' Some time in 1873 the plaintiff invented a clasp. He applied for a patent for it on the thirty-first of August, 1874, and obtained a patent for it, (No. 156,429,) November 3, 1874. The specification of that patent speaks of the clasp as one 'for stocking supporters or various other articles of wearing apparel. ' The clasp is composed of two jawed levers, pivoted together, and a spring arranged between them. The tail of each jaw-lever is made concavo-convex in transverse section, the lower lever, with its jaw, being extended within the upper lever and its jaw. At the place of connection of the two levers the lower one is punched inward on its flanks, so as to form two concavo-convex teats or projections. The spring is shaped or made of wire, and has an eye which is slipped upon the two teats, after which the upper jaw-lever is arranged with respect to the spring and the lower jaw-lever in proper position, and then is punched inward on its flanks, so as to enter the two teats, and thus the two levers are connected and pivoted together.

The levers cover and protect the spring, and, as the specification says, prevent it 'from being caught in the stocking or clothing,' and from moving laterally or getting out of place. The specification says that each of the jaws may be notched or provided with teeth in its opposite edges, and that by having the jaws of the lower lever close into the concavity of the jaw of the upper lever a much better hold of the 'material or stocking' will be secured than when the jaws abut together at their edges. The tail of the upper lever has a slotted head, which is projected from the tail in such manner that its flanks, in case the clasp is pressed 'against the leg of the wearer, ' may bring up against it 'in a manner to prevent' the tail of the lower jaw from being accidently moved inward, so as to open the jaws sufficiently to cause them to let go their hold 'on the stocking;' and 'the slotted head is also to enable the clasp to be attached to a strap of a stocking supporter. ' The claim of No. 156,429, is this: 'The clasp composed of the levers provided with the operative spring, pivoted together by means of the indentations, as described, and made with concavo-convex jaws and tails, and with the one jaw to close within the concavity- of the other, all substantially as specified.'

In January or February, 1874, the plaintiff invented the sleeve supporters afterwards patented by No. 202,735. It consisted of two of the clasps described in No. 156,429, one being at each end of a connection either elastic or non-elastic. No 202,735 describes the supporter as one 'for the sleeves of shirts and other garments. ' It is applied to the sleeve in a direction longitudinal with the arm, 'thereby avoiding the compression and consequent interference with the free circulation of the blood incident to that class of supporters which partially or entirely encircle the arm ' One clasp grasps a fold of the lower part of the sleeve to be supported, while the other clasp grasps a fold of the upper or supporting portion of the sleeve; the lower protion of the sleeve being drawn up to the desired distance before attaching the second clasp, the intermediate portion between the two clasps being drawn up into folds by that operation. The specification disclaims 'a garment supporter consisting of an elastic strap and two tongued plates attached to its ends, the tongues being made to enter holes in the garments, and being afterwards clinched down thereon. ' It also says:

'My improved supporter simply grasps the sleeve, and does not go into or through it, and consequently, in detaching the supporter therefrom, it does not require to be pulled lengthwise, and thereby cause undue strain, which tends to tear the sleeve. Nor does my supporter require cuts or holes to be made inthe sleeve to receive it, as is usually the case with garment supporters.'

The claims of No. 202,735 are two, as follows:

'(1) The improved method of supporting or shortening the sleeves of shirts and other garments without compression, to avoid interference of the free circulation of the blood of the wearer incidental to the use of encircling bands by means of a holder, consisting, essentially, of a short piece of elastic or non-elastic webbing, provided at each end, and an automatic clasping device applied to the sleeve in the direction of its length, substantially as described and shown. (2) As a new article of manufacture a sleeve supporter, consisting of the strap, B, provided at its ends with the clamping jaws, AA, all combined and adapted for use substantially as described.'

The plaintiff, after making one of these supporters in January or February, 1874, showed it to other persons and illustrated its use at that time, and used it himself satisfactorily in March or April, 1874. He made a second supporter of the same structure in September, 1874, as a model for an application for a patent. His application was filed in the patent-office, complete, October 28, 1874. The specification was sworn to October 20, 1874. The drawings were substantially the same as those in No. 202,735, and the description was to the same effect. The claim was substantially like claim 2 of No. 202,735. The spring closes the jaws, and they are opened by pushing the tails of the jaws towards each other against the action of the spring, the tail of the lower jaw projecting downward. This application was rejected November 9, 1874, on the ground that it did not involve invention, in view of No. 156,429, and of a patent to Langford and one to Boughton. On December 26, 1874, amendments were filed-- one, to obviate the Boughton patent, disclaimed a supporter consisting of an elastic strap and two hooked plates fixed to its ends, the hooks 'being to enter a garment;' another disclaimed either of the clasps separate from the strap. The amendments were considered, and on January 2, 1875, the application was again rejected, in view of the same references. Nothing more was done till April, 1878.

On the ninth of April, 1878, a new application was filed, complete, with a new petition, oath, specification, drawing, and model, and a new fee. The oath was made April 5, 1878. On the eleventh of April, 1878, the application was rejected as being 'found to be lacking in patentable novelty, in view of the state of the art,' because the clasp was old, as seen in No. 156,429, and because 'suspending straps, composed of an elastic band, with a clasp, buckle, or other adjusting device on each end, are also old, and therefore, in the present instance, the alleged invention is but the mere substitution of one old clasp in the place of another upon the ends of the strap, and is not deemed an invention. ' Reference was made, in the letter of rejection, to patent No. 88,984, to Robbins, and to patents to Gibbons, Church, and Eames, and Philbrook. On the eleventh of April, 1878, after said rejection, amendments were made making the specification and claims exactly as they are in No. 202,735. The application was rejected again on the thirteenth of April, 1878, on the same references, and on a patent to Sanford, but on the same day the patent was ordered to be issued.

It is contended for the defendant that No. 156,429 contains everything that is found in No. 202,735; that there is no invention involved in passing from the clasp to the structure with one of the clasps at each end of it; and that the case is one of mere duplication or double use, or, at least, of merely a new application of the clasp. It is quite apparent, from the evidence, that the clasp was applicable, and was applied for use by being attached to one end of a piece of elastic and then fastened to a stocking to hold it up, the other end of the elastic being fastened by a button or other device to another garment above. Large numbers of the clasps were made and sold and used in that way. The plaintiff, almost simultaneously with his invention of the clasp, capable of such separate use, invented the supporter, consisting of the two clasps and the connecting strap. The latter invention was completed before he applied for a patent for the former. In that application he might have covered the supporter and also claimed the clasp separately, and one patent might have embraced both. The supporter is not merely a new application of the clasp. It is something more. As a structure, the two clasps with the uniting strap will do what one clasp, or one clasp with an attached webbing, cannot do. It is an article complete in itself, capable of use at any place without any appliance except what it contains, and of being moved from one place to another, without any previous special preparation of the garment to receive it. It involved invention beyond what the clasp alone indicated.

The specification of No. 202,735 is criticised as being obscure and as not pointing out what invention is claimed. The first claim is properly to be construed as a claim to using the structure described, consisting of material with the clasp described, or its substantial equivalent, at each end, when such structure is applied to the sleeve in the direction of its length. There is no valid objection to this claim. The article can be used otherwise than lengthwise of the sleeve. The second claim is for the article, irrespective of the manner in which it is used. The first claim may be unnecessary, and there may be little practical difference between the two...