No. 178.Circuit Court of Appeals, Second Circuit..
January 3, 1944.
Appeal from the District Court of the United States for the Southern District of New York.
Action by the American Pad and Textile Company against Cluff Fabric Products, Inc., for infringement of patents. From a judgment of the District Court for the Southern District of New York, 49 F. Supp. 915, holding invalid Patent No. 1,536,627, issued on May 5, 1925, to Thomas I. Potter, and Patent No. 1,994,189, issued on May 12, 1935, to Frederick Lee Brown, plaintiff appeals.
Walter F. Murray, of Cincinnati, Ohio, for appellant.
David G. Stember, of New York City, for appellee.
Before L. HAND, CHASE and FRANK, Circuit Judges.
Kepler’s patent No. 1,064,743 left no room for invention to Potter, provided the disclosure would in fact accomplish what it professed. On page one, lines 87-89, of the specification occurred the following passage: “The main air chambers of the life preserver being located at the front, the wearer will inevitably be supported face up.” During the prosecution of the application Potter disputed that this jacket would accomplish this result, but upon the trial the defendant introduced testimony that it would. The judge found that “Kepler revealed the principles by which that position could be attained by an unconscious wearer of his device,” which we read as equivalent to saying that the jacket would do what the specifications declared. Be that as it may, the Navy jacket, which long anticipated Potter, operated on the same principle, and as to this the district court found that “anyone who is catapulted into the water, whether in an unconscious or conscious condition, could not do otherwise when he rises to the surface, than find himself in a backwardly reclining position with his head well out of water.” Certainly this finding is unequivocal and there was testimony to support it, though again there was a dispute. We cannot say upon the record before us that either of these findings was “clearly erroneous.”
Brown’s patent was confessedly only an improvement upon Potter’s; and it was an improvement within the compass of any ordinary craftsman.