Wright v. Fitz Bros Co.

• Decision Date: 18 November 1904
• Docket Number: 517.
• Citation: 133 F. 394
• Parties: WRIGHT et al. v. FITZ BROS. CO.
• Court: U.S. Court of Appeals — First Circuit

133 F. 394

WRIGHT et al. v. FITZ BROS. CO.

No. 517.

United States Court of Appeals, First Circuit.

November 18, 1904

Appeal from the Circuit Court of the United States for the District of Massachusetts.

Edward S. Beach (George H. Maxwell, on the brief), for appellants.

Elgin C. Verrill (Clifford, Verrill & Clifford, on the brief), for appellee.

Before PUTNAM, Circuit Judge, and ALDRICH and BROWN, District Judges.

ALDRICH District Judge.

The defendant, as successor of the Amos G. Fitz and Ira W. Fitz copartnership, holds a license from the Clark Relasting &amp Shoe-Treeing Company, which gives it the right to make lasts in accordance with what is known as the 'Clark invention,' described in letters patent No. 388,830 under which it is bound to pay a royalty on all lasts made in accordance with the patent and the license thereunder; and the complainants have succeeded to the rights of the licensor in respect to protection and an accounting. It was stipulated below, in effect, that the accounts stated in the defendant's answer include all lasts made by the defendant covered by the Clark patent and the license referred to, unless lasts like the Amos G. Fitz last, so called, are within the license, and should rightfully be included in the account. We therefore have only to deal first, with the question whether the Fitz last infringes the Clark patent, and, secondly, whether it violates the contract or the rights of the complainants under the license.

It is apparent that the two lasts have the same general purpose-- that of stretching and shaping the shoe under pressure-- but our conclusion is that the means of accomplishing that purpose are substantially different in the two devices. It is not necessary for us to consider which is the better means or which is the most successful device. Clark's leading idea was to have a last in two parts, so arranged that the shoe in the process of shaping should be suitably stretched or spread, and this result was to be accomplished, and he intended that this result should be accomplished, through a last divided into two pieces by a vertical cut across the shank, so that he should have a heel portion and a fore part without any physical connection, each to have a hole to receive a pin or tool 'adapted to spread or separate the said parts one from the other by any suitable spreading device. ' It is clear that the idea of complete separation of the parts was in the mind of the patentee, for he points out in his specification that the heel portion may be removed at any time desired, and the fore part remain in the boot or shoe, thereby rendering the heel portion superfluous at certain stages of the manufacture, and that the fore part may be inserted independently of the other part of the last.

In practical operation, after the Clark last, consisting of two parts, is placed in the shoe, each part thereof having a hole designed to receive a pin or tool attached to a suitable spreading device, it...