attachment which, applied to flat or straight full-fashioned knitting machines, and used for the purpose of splicing, reinforcing, etc., accomplishes its purpose in a different manner, and, as applied to the manufacture of hosiery, is a decided advance in the art, performing its function more expeditiously than any contrivance or attachment previously used.
See Diamond Rubber Company v. Consolidated Rubber Tire Company, 220 U.S. 428, 31 S. Ct. 444, 55 L. Ed. 527; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co. (C.C.A. 8) 106 F. 693; Krauth v. Autographic Register Co. (D.C.N.J.) 285 F. 199, 204.
There is a presumption of the validity of a duly issued patent, and an evidence of the advance of the invention of Schletter over the prior art is the popularity of the attachment, the large sales, and the fact that defendant appears to be anxious to use it as an attachment to its flat hosiery knitting machines.
See Kinloch Tel. Co. v. Western Electric Co. (C.C.A. 8) 113 F. 659-665.
What has been said applies also to the contention of defendant as to "complete anticipation." It is impossible in this opinion to analyze all of the patents presented, and about which testimony has been offered; suffice it to say that the court has scrutinized the testimony, carefully read the briefs, and has concluded that none of the prior patents is anticipatory of the claims of plaintiff at issue in this suit.
3. The contentions of defendant because of prior knowledge and use are, as the court views all of the testimony, also disposed of herein.
While the plaintiff's attachment in a degree is evolved from the uses of former and other devices attached to flat knitting full-fashioned machines, the question is the novelty of plaintiff's patent of furnishing, as stated in defendant's brief, "the necessary mechanism for automatically imparting reverse motion to the spindle of the Gotham attachment."
Of course, this included the mechanism which reverses and advances the nuts and stops in a predetermined manner by use of pattern chains, or other automatic mechanical means.
4. The question of abandonment has been raised by defendant and is based upon the assumption that the facts indicate that Schletter intentionally abandoned his invention to the public.
The failure to prosecute the proceedings under the original application for patent appears to have been due entirely to the negligence of the patent attorney.
There is no indication in the evidence that Schletter ever voluntarily intended to abandon his invention.
From the testimony it is evident that Schletter never knew of the letter of rejection until long after it was received by his attorney. The letter was received by the attorney on or about April 18, 1923, and Schletter was not notified until July 28, 1924.
The attorney testified that at a conference held August 5, 1924, with Schletter and others, no suggestion was made by him that the original application had been technically abandoned. After this conference the attorney made no effort to revive the application, and it is apparent that later, Schletter, becoming discouraged because of lack of action, consulted another patent attorney, who, on or about May 20, 1925, wrote to the attorney handling the original application for information.
The filing of the second application was considerably delayed because of the tardiness of the draughtsman.
There seems to have been much uncalled for neglect and delay, but the testimony is quite clear that none of this was chargeable to Schletter personally.
I am convinced that Schletter never, by his actions, abandoned his invention, and the claim of abandonment cannot succeed in denying relief to plaintiff.
I find as facts:
(1) That claims 1, 3, 14, and 15 of the patent in question are valid.
(2) That said claims of patent are not anticipated by patents pleaded and offered in evidence, or voided by prior knowledge or use.
(3) That patentee Schletter did not voluntarily or intentionally abandon the invention as disclosed by the original patent application.
(4) That the defendant Alfred Hofmann, Inc., has infringed the aforesaid claims of the patent.
As to the law, I conclude: That the patent being valid and infringed, the plaintiff is entitled to a decree enjoining defendant Alfred Hofmann, Inc., from the use of the attachment so infringing, and for an accounting for damages and profits
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