Scott & Williams, Inc. v. Aristo Hosiery Co., Inc.

• Decision Date: 04 May 1920
• Citation: 266 F. 382
• Parties: SCOTT & WILLIAMS, Inc., v. ARISTO HOSIERY CO., Inc.
• Court: U.S. District Court — Southern District of New York

266 F. 382

SCOTT & WILLIAMS, Inc., v. ARISTO HOSIERY CO., Inc.

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

May 4, 1920

Emery Booth, Janney & Varney, of Boston, Mass. (F. L. Emery, of Boston, Mass., of counsel), for the motion.

Howson & Howson, of New York City (Charles Neave and Hubert Howson both of New York City, of counsel), opposed.

MAYER District Judge.

The motion is to dismiss the bill on the ground that the patent (No. 1,233,714, granted to Scott on July 17, 1917) is void on its face. It is contended that the patent is void (1) for want of invention; (2) for lack of utility; (3) because deceptive on its face.

The specification reads in part:

'My invention relates to circular knit or seamless stockings having therein an imitation of some of the characteristic appearances of straight or flat-fashioned and seamed stockings. The improvements of recent years in the manufacture of circular knit seamless stockings have made them desirable articles of wear, but there still exists in the minds of some conservative purchasers a habit of choice in favor of the type of stocking having a seam at the back of the leg, which prejudice is not based upon any present advantage or merit in the seamed stockings, however great such advantage may have been at past times. Unthinking purchasers still depend upon superficial characteristics of the once superior sort of stocking to indicate to them a desirable article of purchase, without examining the stocking for the other structural features upon which a more intelligent choice might be based. Such persons usually prefer, when they can be induced to make a decision on their respective merits, that type of stocking having no seam at the back, which has manifest advantages as an article of wear. The existence of a large body of prejudice of this sort in the minds of the public unfairly militates against the sale of circular knit articles of hosiery. One purpose of my present invention is to provide in such hosiery an imitation of the superficial appearance of the stockings of the other type, so that circular knit stockings made according to my invention will not be unfairly associated in the minds of such purchasers with a crude and inferior class of goods, but may be taken upon their relative merit as garments. One of the appearances the absence of which leads the uninformed public to believe the stocking is an inferior stocking, is a mark at the back of the leg incidental to making on a flat-fashioning or straight machine, caused by the transfer of loops of one wale to loops of an adjacent wale. In the usual article these marks occur at the back of the leg above the ankle, on either side of the seam marking the back central line of the stocking. When finished for sale, such full-fashioned stockings are folded on the line of the seam, and the mark of these transfers is conspicuous and distinctive.'

The claims are:

'1. A seamless stocking having therein at the back of the leg a structural variation of the knit fabric of which it is composed, imitating the narrowing marks occurring in seamed or other narrowed stockings.

'2. A seamless stocking having a tapered leg having the same number of needle wales therein throughout and separated structural marks occurring in the same needle wale on each side of and near the central back line of the stocking at the tapered portion only thereof.

'3. A seamless stocking having a tapered leg, a mock seam at the back of the leg, and separated marks imitating transferred narrowings at either side of the mock steam in said tapered portion.

'4. A seamless stocking having a tapered leg and tuck-stitch marks separated in the direction of the length of the stocking occurring in the same needle wale on each side of the central back line of the stocking at the tapered portion.'

1. Want of Invention.

A motion to dismiss on the face of letters patent is very much like a motion at law to dispose of a pleading because frivolous. If the motion is really arguable, it must be denied. In Mallinson v. Ryan (D.C.) 242 F. 951, the mere inspection of a design patent was all that was necessary. See, however, Bayley & Sons, Inc., v. Blumberg, 254 F. 696, 166 C.C.A. 194.

The specification here sets forth, inter alia:

'At the back of the leg, and at the location of this taper, and...