Victory Belt Co. v. Marshall Field & Co.

• Decision Date: 20 May 1924
• Docket Number: 3222.
• Citation: 300 F. 67
• Parties: VICTORY BELT CO. v. MARSHALL FIELD & CO.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F. 67

VICTORY BELT CO. v. MARSHALL FIELD & CO.

No. 3222.

United States Court of Appeals, Seventh Circuit.

May 20, 1924

Charles Hudson, of Chicago, Ill., for appellant.

James N. Ramsey, of Cincinnati, Ohio, for appellee.

Before ALSCHULER and EVANS, Circuit Judges, and LINDLEY, District judge.

LINDLEY District Judge.

Plaintiff below appeals from a decree of the District Court, dismissing for want of equity its bill brought for injunction against alleged infringement of patent No. 1,177,079, Agrilla, for improvement in belts, and for accounting. The leather belt being sold by appellee, defendant below, is identical in construction with that of plaintiff, claimed to be protected by claim 2 of the patent in suit. Defendant contends that the patent is void for want of invention, and that, if the patent is valid, neither belt is within it. We shall discuss these questions in their order:

Plaintiff's original application made three claims:

(1) 'A chain comprising a series of links, each link consisting of a looped portion and two adjacent ends, said ends having registering slits adjacent the looped portion and adjacent the forward edges of said ends, the looped portion of the second link being passed through and doubled over in the slits nearest the looped portion of the first link and the looped portion of the third link being passed through the slits nearest the forward edges of the first link and also the slits nearest the looped portion of the second link, and so on with each succeeding link to form a continuously reinforced chain, substantially as described.' (2) 'A chain comprising a series of links, each consisting of three integral sections, two of which are provided with slits and are folded over on each other to bring said slits in registration, and a slit adjacent the end of the third section, the looped portion of the second link extending through the registering slits of the first link, and the slits thereof registering with the slits in the third section, and the looped portion of the third link extending through the registering slits of the second link and the slit in the third section of the first link, and so on with each succeeding link to form a continuously reinforced chain substantially as described.' (3) 'A chain comprising a series of links, each consisting of three integral sections, two of which are provided with slits and are folded over on each other to bring said slits in registration, and a slit adjacent the end of the third section, the looped portion of the second link extending through the registering slits of the first link and the slits thereof registering with the slits in the third section, and the looped portion of the third link extending through the registering slits of the second link and the slit in the third section of the first link, and so on with each succeeding link to form a continuously reinforced chain, substantially as described;"

The Examiner ruled that 1 and 3 (now 2) covered the construction shown in Figures 1, 2, and 3, of the drawings, and excluded the construction shown in Figure 4, while claim 2 of the original application included the construction shown in Figure 4 and excluded that in Figures 1, 2, and 3, and said 'Division under rule 42 is therefore required. ' Thereupon applicant canceled said claim 2, renumbered claim 3 as claim 2, and added two new claims, 3 and 4, which, not providing for any connection between links other than with the ones immediately preceding and succeeding, were rejected upon Rump, 216,533. The Examiner said:

'It is believed that claims 1 and 2 cover all novelty that exists in the application.'

The essential element of plaintiff's invention is the link and its manner of connection with other links. The link consists of a piece of leather slightly narrowed in the center where it is designed to loop over, double, so as to form a link. This central portion of the leather is correctly designated by plaintiff 'looped portion.' On each side of the looped portion and equally distant from the center is a transverse slit, both of which slits, when the link is doubled or looped, register or correspond and through which the preceding link loops. Claim 1 evidently referred to links that had, not only these two transverse slits, but also two others of similar character, nearer the respective ends of the link, which also registered when the link was doubled, and through which the link secondly preceding looped. In this manner both end portions of each link were looped to the secondly preceding link, while the slits nearer the looped or central portion furnished connection with the first preceding link. Thus each link was doubly connected with the two preceding links, thereby strengthening and reinforcing the belt. In the belt in suit, however, one end of the link is cut off a short distance beyond the first slit, so that when the loop portion is doubled, the two slits nearest the looped portion register just as in the first mentioned construction, but only the slit in the long end reaches the second preceding link, and connects with it. Thus the connection with the first preceding link is, in each construction, double, and with the second preceding link in the first described construction double, but, in the belt in suit, single. This is a difference of degree only, not of kind; and if either constitutes invention, so also does the other. In our opinion either is within claim 2 as it now stands. That claim is broad enough to cover a belt constructed under claim 1 as well as one constructed like those in suit.

In support of alleged invalidity and anticipation, defendant cites the prior art of Rump, No. 216,533, Frothingham, No 594,201, Weaver, No. 665,043, and Losh, British, ...