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Miller v. Swarttz

September 21, 1931

MILLER
v.
SWARTTZ ET AL.



Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Author: Woolley

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

The plaintiff appeals from a decree dismissing his infringement bill based on the single claim of a patent to Elston, No. 1,690,776, for woven material. The District Court held the claim invalid for want of invention. As the structure and general appearance of the defendants' material were those of the patented product except as to certain strand embellishments, the patent, if valid, is clearly infringed. The sole question, therefore, is invention.

The defendants, doubtless speaking for the industry at large, maintain, and the trial court held, that the woven material of the patent was nothing more than a result of a common practice of the art, involving nothing new in structure and little, if anything, new in appearance. They also urge that the patent, if sustained, would greatly disturb that practice and play havoc with the art. There is enough in these contentions to cause us, treading warily in this field, to distinguish the invention from the practice by stating the practice and defining the invention precisely.

The weaving art is a large one. Its members are constantly engaged in developing new and attractive fabrics. On that depends business success. A pleasing effect depends on the design, and the design on the strand structure, that is, the number and color of strands in the warp and weft and their underlying and overlying relation to one another. Designs are therefore infinite in number and appearance. When one proves to be attractive it is made up and sold, and if it sells well, competitors, picking it apart, discover the structure and produce and market the same material.

As we are not concerned with the ethics of such conduct, it will be enough to say that it is universal in the industry and that the plaintiff himself engages in it.

The legal justification for one man thus appropriating the work of another is, the defendants contend, that the product is merely that of skilled workers and does not, and in truth cannot, involve invention and therefore the originator has no exclusive right to make and sell it.The defendants claim that the development of an attractive design from an arrangement of strands, accidentally hit upon, is all the patentee did in this case and that in consequence the patent awarded him for his work is invalid for want of invention.

We recognize the general trade practice, the dearth of opportunity for the display of inventive faculties and the danger of awarding patents in that field. If Elston did nothing more than make a new design having an attractive appearance and proving to be readily saleable, we would not sustain his patent.

But Elston did something more than obtain a happy result from a common practice.

Twisted yarns -- yarns made from two or more strands of different colors twisted into one strand -- were old. When thus made, the different colors are visible alternately along the yarn. The effect of twisted yarns when woven into a fabric was long known. When used in certain structures they produced a mottled effect, that is, patches of different colors irregularly placed. Knowing this, the plaintiff instructed Elston, his designer, to make a pattern of single strands of different colors which he had on hand and produce, if possible, the effect of double or twisted strands. That, seemingly, was a new idea. If practicable it would save money, for single strands of solid colors are cheaper than double strands of mixed colors.

Elston worked on the idea for several weeks and eventually developed a fabric structure with strands of two groups; one group consisting of two strands of one color and three of another, and the other group consisting of one strand of one color and two of another, the whole constituting a repeat of weave of sixteen strands in each direction and having the mottled appearance produced by twisted yarn.

The fabric was an instant success, was sold in large quantities and was at once copied by the industry. Elston was then awarded the ...


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