Shepard v. Carrigan
| Decision Date | 01 February 1886 |
| Citation | 116 U.S. 593,29 L.Ed. 723,6 S.Ct. 493 |
| Parties | SHEPARD and others v. CARRIGAN, Adm'r, etc. Filed |
| Court | U.S. Supreme Court |
E. N. Dickerson, for appellants.
B. F. Butler and F. P. Fish, for appellee.
This was a suit to restrain the infringement of letters patent for an 'improvement in dress protectors,' granted to Helen M. Macdonald, the intestate of the defendant in error, dated September 29, 1874, upon an application filed May 10, 1873. The specification of the patent described the invention as follows:
Both the figures referred to in the specification represented skirt protectors made with plaited or fluted bands. The claim was as follows: 'As a new article of manufacture, a skirt facing or protector, having a fluted or plaited border, bound with or composed of enameled cloth or water-proof material, substantially as and for the purpose set forth.'
On November 9, 1874, the patentee filed in the patent-office a disclaimer by which she struck out from her claim the words 'facing or,' leaving the claim to cover only a skirt protector. The answer of the defendants denied infringement, and denied that Macdonald was the first and original inventor of the improvement described in her patent. Upon final hearing the circuit court found the issues were for the plaintiff, and entered a decree in her favor against the defendants for profits and damages, and restrained the latter from selling to be used protectors embracing said patented improvement, or any substantial part thereof. From this decree the defendants appealed. After the appeal Macdonald died, and Carrigan, who had been appointed her administrator, was made appellee in her stead.
The evidence shows that skirt protectors are made isolated, and are sold as distinct articles of manufacture, and not as a part of the dress to which they are to be attached. They are kept in shops for sale singly or by the dozen, and the purchasers use them by sewing them on the inside of the trains of long dresses near the lower edge. They can be easily detached when worn out and new ones substituted. It is admitted that the defendants sell skirt protectors made under the patent issued to Theodore D. Day, March 23, 1875, for an 'improvement in skirt protectors.' The improvement of Day is that described in the specification of his patent: 'I use a strip of India rubber that is made with longitudinal ribs, of sufficient size to withstand the wear to which it is subjected, and between these ribs there is a groove that makes the strip light and flexible, and the web of rubber between the ribs receives a line of stitching, by which the protector strip is united to a strip of rubber cloth, muslin, or other suitable material that is to be attached to the inside of the dress at or near the lower edge.' The skirt protectors made under this patent are not made with a fluted or plaited band or border. The defendants insist that by reason of this fact they are essentially different from the improvement described in the Macdonald patent, and therefore do not infringe that patent. On the other hand, the plaintiff insists that the fluted or plaited border mentioned in the Macdonald patent is a matter of descriptive form merely, and not an essential part of the invention covered by the patent; and that the use of skirt protectors without a fluted or plaited border, but in other respects substantially like the protectors described in the Macdonald patent, is an infringement of that patent. Upon this issue we think the defendants are right. It appears from the file-wrapper and contents in the matter of letters patent granted to Helen M. Macdonald that in the first application for her patent, dated May 6, 1873, the specification described her patent as follows: 'My invention consists of a strip of enameled muslin from two to four inches wide, which may be covered with any dress material, such as silk, cashmere, alpaca, armure, or tamise cloth; it is then formed in...
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...be given the allowed claims which would revive the claims which were abandoned in order to obtain the patent. Shepard v. Carrigan, 116 U.S. 593, 597, 6 S.Ct. 493, 29 L.Ed. 723; Roemer v. Peddie, 132 U.S. 313, 317, 10 S.Ct. 98, 33 L.Ed. 382; Royer v. Coupe, 146 U.S. 524, 532, 13 S.Ct. 166, 3......
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