Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS and TREANOR, Circuit Judges, and WOODWARD, District Judge.
Appellee charged Loeber's, Inc., with infringement of two patents to Cunningham, numbered respectively 1,859,198 and 1,899,890. They are referred to hereafter as the first and second Cunningham patents.
Shortly thereafter appellants filed a suit in the same District Court to restrain appellee from prosecution of the first suit, or any other patent infringement suit based on the first Cunningham patent. These cases were consolidated for hearing, and the District Court held both patents valid and infringed. The same decree denied the relief sought in the second suit, and from that entire decree this appeal is prosecuted. Infringement is admitted if the claims are valid.
The first patent to Cunningham was issued May 17, 1932, on an application filed August 29, 1930. Claims 3 and 8, inclusive, of this patent are in issue, and claim 3 is typical.*fn1 This alleged invention relates to a combination garment comprising a corset and brassiere designed to confine and mold correctly the busts and abdomen of the wearer with complete comfort, and adapted to fit closely above and below the busts without exerting appreciable pressure thereon.
The garment comprises a corset of inelastic material, having longitudinal side elastic portions and garters. The corset opens at one side and is provided with hooks and eyes for fastening it about the wearer, and has a portion attached to extend above the diaphragm of the wearer intermediate the busts. A gusset is inserted at the top of the back of the corset to give added adjustment, the corset being boned if desired.
The brassiere comprises a front portion of inelastic soft material adapted to cover the body across the busts and is sewed to the upper edge of the corset.End section or flaps are sewed to the front portion of the brassiere and down the sides of the corset to a point adapted to lie below the diaphragm and at about the waistline of the wearer. These flaps are extended rearwardly along the sides to overlie the back of the wearer. Each flap has sewed thereto a pair of elastic straps which terminate in a tab provided with buttonholes adapted to be fastened to buttons on the back of the corset. Shoulder straps are attached to the front portion and to the upper sides of the flaps of the brassiere. It is preferred to use elastic material in the shoulder straps so that the garment when worn with the garters will be kept in position, yet permit freedom of movement to the wearer.
The flaps are adapted to be crossed at the back, and the elastic straps of each pair diverge from their tab so that one strap is adapted to exert a transverse pull on the lower part of its adjacent end section, and across that portion of the corset adapted to cover the diaphragm, while the other strap is adapted to exert a pull on the upper part of the adjacent end section and across the upper part of the front portion of the brassiere. The general construction and arrangement of the end sections is such that they exert a downward pull when they are fastened and placed under tension. As a result of this construction, it is said that the diaphragm of the wearer is held flat, and the brassiere above the busts is held snugly against the body of the wearer without exerting uncomfortable pressure on the busts. The end sections of the brassiere, being crossed at the back and fastened to the corset, tend to exert an upward pull on the front of the brassiere thereby giving the desired uplift form to the figure.
Patent No. 1,833,325 to Kops was not cited by the Examiner in the prosecution of the patents now before us. He disclosed a combination corset and brassiere. With few exceptions, presently to be mentioned, he disclosed every feature of both Cunningham patents. Kops had but one piece of elastic attached to the pointed or free end of one of the flaps. On the free end of this elastic was a button which engaged a buttonhole in the pointed end of the other flap. Each flap in Kops is in the form of a rectangular triangle, with the hypotenuse on the upper side. A separate flap is sewed to each end of the brassiere, and to its respective side of the corset.
The free ends of the Cunningham flaps are not pointed, but are of appreciable width, and each constitutes the base of a triangle of which the elastics, presently described, form the sides. Instead of running each flap to a point in the rear, a piece of elastic is attached to each free corner of each flap, and the two elastics on each flap extend rearwardly and diagonally in such manner as to converge, thus forming a triangle. Extending rearwardly from the point of convergence is a tab which is provided with a buttonhole.
It is obvious that the Kops construction differs from Cunningham only in the fact that the former makes his triangle of cloth, which is the flap itself, to which he attaches one strip of elastic which engages a button on the free end of the other flap, whereas Cunningham constructs her triangle with the elastics, and her tabs which are attached to the respective points of the triangles engage buttons which in turn are attached to the corset. These buttons prevent the flap from working upward, while in Kops the same result is obtained by threading the elastic through a loop which is attached to the corset.
We are unable to discover inventive genius in Cunningham over Kops. Whatever force is applied to the point of the triangle reacts upon the brassiere precisely the same in both. There may be a difference in the degree of force applied, but the principle involved is the same, for whatever force is applied to the apex of a triangle reacts upon all the area between the laterals of the triangle.Concededly the force might act in a different degree, depending upon whether the base was rigid or otherwise, but that difference does not manifest itself here, for in both disclosures the base of the triangle appears to be of the same constituency. In argument, appellee refers to what we designate as the base of the triangle, as a pole or stay. However, neither the claim nor the specification refers to it as a pole, and in both Kops and Cunningham it would seem to comprise multiple plies of the material used. Certainly in both Kops and Cunningham this base is not rigid, for it yields to the contour of the body both laterally and vertically when force is applied.
The District Court was of the opinion that there was a distinction between Kops and Cunningham, in that Kops had no purpose in his invention to apply any appreciable force in uplifting the abdomen or restraining the diaphragm, or even the portion of the body above the breasts. However, Cunningham does not claim any such purpose, for in the specification of both of her patents she states that her object is to provide a garment adapted to correctly confine and mold the busts and the abdomen ...