Sherman v. Moore Fabrics, Inc.
| Decision Date | 27 November 1959 |
| Docket Number | Civ. A. No. 2431. |
| Parties | Harold F. SHERMAN, Plaintiff, v. MOORE FABRICS, INC., Defendant. |
| Court | U.S. District Court — District of Rhode Island |
Crowe, Hetherington & Chester, Benjamin C. Chester, Pawtucket, R. I., for plaintiff.
W. R. Hulbert and Wm. W. Rymer, of Fish, Richardson & Neave, Boston, Mass., Richard F. Canning, of Letts & Quinn, Providence, R. I., for defendant.
This is an action for infringement of U. S. Letters Patent No. 2,804,099 granted to the plaintiff on August 27, 1957 for an invention relating to "Woven Elastic Fabric or Webbing".
In his complaint the plaintiff alleges in substance that he is the owner of said patent (hereinafter sometimes referred to as "the Sherman patent"), a copy of which is annexed to the complaint; that said patented invention is of great novelty and utility and has gone into widespread use, so that it is of great value; that he has given due notice to the public of his patent rights pursuant to 35 U.S. C.A. § 287; that the defendant has been and still is infringing on said patent by manufacturing, using, selling and actively inducing others to use and sell materials embodying the invention covered by the claims of said patent; that he notified the defendant of its infringement prior to the filing of his complaint and prior to the commission by the defendant of the acts complained of; and that the defendant by the commission of said acts has caused him great damages. The plaintiff demands judgment in the sum of $500,000, treble damages, counsel fees and costs.
In its answer the defendant admits the jurisdiction of this Court; admits the issuance of said patent; admits receipt of said notice from the plaintiff charging it with infringement; denies that said patent was legally issued; and asserts that said patent is wholly invalid and void for want of invention by the plaintiff.
The claims of the Sherman patent read as follows:
Subsequent to the filing of its answer the defendant moved for the entry of summary judgment in its favor under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the Sherman patent is invalid for lack of invention as a matter of law. Annexed to the defendant's motion are affidavits in support thereof, together with numerous exhibits (including pertinent excerpts from the prior art). Counter-affidavits have been duly filed by the plaintiff. Finally, it may be noted that the "file wrapper" of the Sherman patent is also a part of the record before me.
The plaintiff first contends that the summary judgment procedure cannot be used in a patent case when the issue of invention is raised unless the claims of the patentee are obviously frivolous. In my opinion this contention is without merit. In George P. Converse & Co. v. Polaroid Corp., 1 Cir., 1957, 242 F.2d 116, Judge Hartigan, speaking for the Court of Appeals, laid down the rule to be followed in this Circuit at page 120:
To the same effect, see Glagovsky v. Bowcraft Trimming Co., 1959, 1 Cir., 267 F.2d 479, certiorari denied 80 S.Ct. 155; Steigleder v. Eberhard Faber Pencil Co., 1 Cir., 1949, 176 F.2d 604, certiorari denied 1949, 338 U.S. 893, 70 S.Ct. 244, 94 L.Ed. 548; Vulcan Corp. v. International Shoe Machine Corp., D.C.Mass. 1946, 68 F.Supp. 990, affirmed per curiam 1 Cir., 1946, 158 F.2d 520, certiorari denied 1947, 330 U.S. 825, 67 S.Ct. 868, 91 L.Ed. 1275.
The test of invention is clearly stated by the Supreme Court in Cuno Engineering Corp. v. Automatic Services Corp., 1941, 314 U.S. 84, at pages 90-91, 62 S.Ct. 37, 40, 86 L.Ed. 58;
And, as the Supreme Court later stated in the much cited case of Sinclair & Carroll Co. v. Interchemical Corp., 1945, 325 U.S. 327 at page 330, 65 S.Ct. 1143, 1145, 89 L.Ed. 1644:
The Sherman patent relates to a woven elastic fabric or webbing which has a woven elastic base structure formed by rubber and non-elastic threads interwoven with non-elastic threads running in a transverse direction, and having additionally stretchable permanently crimped all-textile threads interwoven with and floated outwardly on said woven elastic base structure at a face thereof and extending in the direction in which said fabric or webbing is to stretch, said permanently crimped float threads being characterized by being in an untwisted state and capable of substantial stretching when the base fabric or webbing...
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