Weil-Kalter Mfg. Co. v. Sel-Mor Garment Co.

• Decision Date: 29 June 1953
• Docket Number: No. 14608.,14608.
• Citation: 205 F.2d 535
• Parties: WEIL-KALTER MFG. CO. v. SEL-MOR GARMENT CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

205 F.2d 535 (1953)

WEIL-KALTER MFG. CO. v. SEL-MOR GARMENT CO. et al.

No. 14608.

United States Court of Appeals Eighth Circuit.

June 29, 1953.

Lawrence C. Kingsland, St. Louis, Mo. (Edmund C. Rogers, Estill E. Ezell, and Kingsland, Rogers & Ezell, St. Louis, Mo., on the brief), for appellant.

Lawrence H. Cohn, St. Louis, Mo. (Milton Yawitz, Robert B. Terry, Rassieur, Long & Yawitz and Terry & Cohn, St. Louis, Mo., on the brief), for appellees.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The Weil-Kalter Manufacturing Company, of St. Louis, Missouri, a manufacturer of women's garments, brought this action against the Sel-Mor Garment Company, a competitor, and Herman C. Seldin, its President, upon the claim that the defendants (appellees) had, by making and selling a certain type of women's undergarment, infringed United States Patent No. 2,327,662, issued to the plaintiff (appellant), as assignee of Loretta Novy, on August 24, 1943, upon an application filed by her November 26, 1942. The usual defenses were asserted, — anticipation, want of patentable invention, and noninfringement. The issues were tried to the District Court. It determined that the patent was invalid for want of invention. This appeal followed.

The determination of the trial court that the patent was void for want of invention is binding upon this Court unless "clearly erroneous." Warden v. City of St. Louis, Mo., 8 Cir., 140 F.2d 615; Miller v. Tilley, 8 Cir., 178 F.2d 526; Trico Products Corporation v. Delman Corporation, 8 Cir., 180 F.2d 529, 530 and cases cited; Willis v. Town, 8 Cir., 182 F.2d 892, 894; Smith v. Dravo Corp., 7 Cir., 203 F.2d 369, 380.

The patent in suit relates to "improvements in women's garments, and more particularly to an undergarment referred to as a slip." The patent has only one claim, which reads as follows:

"In a slip or like garment, a skirt portion and an upper portion, comprising a front skirt panel having a lower edge, lateral edges and an upper edge, the panel being narrower at its upper part than at its lower part, and having a width to extend around the sides of the garment into the rear thereof, to dispose its lateral edges at the rear of the garment, the upper edge of the front skirt panel extending at least as high as the waist of the garment, and at its front middle portion extending upwardly above the waist toward the top of the garment and converging into substantially a point, the front panel being cut on the straight at its middle front part, a rear skirt panel cut on the bias, said rear skirt panel having lateral edges joined to the lateral edges of the front skirt panel, and an upper edge extending upwardly at least as high as the waist of the garment, a pair of rear upper sections joined together at the middle of the back and each extending laterally from the junction, and disposed on the bias, the said rear upper panels being secured at their bottom edges to the upper edge of the skirt portion, and having outer lateral edges extending upwardly therefrom, a pair of breast panels cut on the bias, each breast panel being secured to the outer lateral edge of a corresponding rear upper panel, and to the upper edge of the front panel including the converging portion thereof."

What the patent covers is a form-fitting slip which will stretch sufficiently to be pulled on and off over the head of the wearer, but which has an inelastic front to the skirt to prevent its riding up when the wearer is seated. It might perhaps be characterized as a pull-over, form-fitting, streamlined, nonclimbing slip. The necessary stretchability is obtained by using at the rear of the skirt a panel of material cut on the bias, and by making the panels of the upper portion or the bodice of the slip of material also cut on the bias. As a result of the arrangement of the panels, the bodice is stretchable, the rear panel of the skirt is stretchable, and the front and sides of the skirt are nonstretchable.

The Novy slip is unquestionably a good undergarment. It has met with public acceptance, and in the hands of the plaintiff has achieved great commercial success. However, the women's undergarment art, including that which pertained to form-fitting slips, was, as one reasonably might suspect, an old and crowded art. Novy did not discover that material if cut on the bias was elastic and if cut on the straight was inelastic. In designing her slip she used means well known in the art, in order to make a useful and acceptable garment.

At the time Novy designed the slip described in her application for a patent, she was connected with the plaintiff as a garment designer, and was regarded...