William Carter Co. v. Earnshaw Knitting Co.

• Decision Date: 26 April 1928
• Docket Number: No. 2802.,2802.
• Citation: 25 F.2d 981
• Parties: WILLIAM CARTER CO. v. EARNSHAW KNITTING CO.
• Court: U.S. District Court — District of Massachusetts

25 F.2d 981 (1928)

WILLIAM CARTER CO. v. EARNSHAW KNITTING CO.

No. 2802.

District Court, D. Massachusetts.

April 26, 1928.

Emery, Booth, Janney & Varney and Irving U. Townsend, all of Boston, Mass., for plaintiff.

Francis J. V. Dakin, of Boston, Mass., for defendant.

BREWSTER, District Judge.

This is an infringement suit based upon two letters patent of the United States issued to the plaintiff as assignee of Harriet L. Redmond. The patents were numbered and dated, respectively, 1,488,407, March 25, 1924, and 1,495,134, May 20, 1924. The patents purport to relate to improvement in infants' bands, but the alleged invention of each relates to the reinforcement of portions of the band to which would be pinned the infant's diaper. These bands are used on small babies and are generally tubular and seamless in formation. For many years these bands were provided with what has come to be known in the trade as "tabs," which were nothing more than reinforced areas through which the pins would be passed when the diaper was attached. The tabs first adopted were depending tabs. Later they were reversed upon the garment, so that the reinforced area came above the bottom of the band. The earlier bands were provided with front and back tabs, to which the older form of triangular diaper could be pinned, the three corners being brought together at the front and pinned to the front tab, the back portion being pinned usually to the back tab.

The defendant began to manufacture infants' bands in 1912, and as early as 1916 it was putting out bands with the upturned front and back tab. As early as 1912 or 1913 what is known as the "square" or "Swedish" diaper was introduced into hospitals and homes in the far Western states. This form of diaper, rectangular in shape, is folded into generally squared form and, when applied to the infant, the corners are brought together at the infant's side and are there pinned together and to the side of the band. This square diaper was said to possess advantages over the older type, and its use was advocated by nurses and physicians. The result was that manufacturers of infants' bands received requests for a garment that would have the tabs on the sides instead of in front and back. The defendant first manufactured a band with side tabs early in 1921, but had not added it to its regular line prior to April 12, 1921. For a time immediately thereafter, the defendant manufactured and sold two lines of bands, some with front and back upturned tabs and some with side upturned tabs. In 1925 it put on the market what is called the "universal band," or a band with the universal tab. This garment had a relatively wide hem turned up, the upper edge of which was made undulatory, or scalloped, and seamed to the body of the band. The scalloped hem was so cut that, when placed, it brought reinforced areas in front and in back and on either side of the garment, thus adapting the band for use either with the triangular or square-fold diaper. It is this garment that the plaintiff alleges infringes the first claim of patent No. 1,488,407 and the three claims of No. 1,495,134.

The application for the first patent was filed May 2, 1922. The first claim is as follows:

"An infant's shirt or band having an undivided tubular elastic body portion and a continuous relatively narrow flaplike member of substantially the same elasticity as said body portion elastically seamed at its upper edge only upon one face of said body portion at a distance above its lower edge at least equal to the width of said flaplike member, the latter being adapted to receive diaper attaching means at any point or points circumferentially of the band."

It is the plaintiff's contention that the scalloped hem of the defendant's garment comes within the scope of this claim. Attention is called to the fact that, in her application, the applicant stated that the flap may be formed of one or several separate strips of fabric united by seaming their lower edge and that the lower edge of the flaplike member desirably is unattached to the body portion of the garment.

Upon these statements the contention is now based that the monopoly acquired by this first claim extends to every method of reinforcement if the reinforcing means constitutes a continuous ringlike tab, elastically seamed along its upper edge. The inventor was not a pioneer in the discovery of the idea of providing reinforcement for those parts of the band that received the wear and the strain resulting from the pinning of the diaper thereto, and cannot ask for a liberal construction upon her claim. See Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 28 S. Ct. 748, 52 L. Ed. 1122; Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 S. Ct. 521, 47 L. Ed. 689; Shevenell v. Kelly (D. C.) 19 F.(2d) 791, 792.

Enough has already been stated to indicate that various means for such reinforcement had long been known to the practical art. It may here be added that they are also to be found in the prior patented art, for example, the patents granted to Ovenshire in 1905, No. 800,237, and to Royce in 1914, No. 1,110,459. Furthermore, the claim is the measure of the patentee's right, and, while specifications may be used for the purpose of explaining or limiting the claim, they can never be made available to expand it. McClain v. Ortmayer, 141 U. S. 419, 12 S. Ct. 76, 35 L. Ed. 800. Whatever of novelty may be found in the invention must reside in the particular means adopted for receiving the attaching means of the diaper disclosed in the patent. This means is clearly the "flaplike" member described in the claim and shown in Figure 2.

It is reasonably apparent, from a study of the specifications, that the flaplike member was designed primarily to receive the pins which would not necessarily pass through the body of the garment itself; in fact, one of the advantages claimed for the alleged invention is that the narrow flaplike member may be removed and replaced, if worn by constant pinning. It is not possible to find in the defendant's band anything corresponding to this flaplike member as thus described and shown. To extend the scope of the claim to cover reinforcement obtained by turning up and seaming to the body of the garment an undulatory hem is to do violence to the English language. The word "flap," as defined in the dictionaries, necessarily involves the idea of something flexible, that hangs loose and is capable of a flapping motion. Every definition that I have found excludes the idea of a closely seamed hem, which does not, and cannot, hang loosely.

Furthermore, the evidence clearly shows that this patent was never anything more than a paper patent. The...