The Federal Reporter with Key-Number Annotations, Volume 281: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, September-October, 1922. Page: 6
xvi, 1023 p. ; 23 cm.View a full description of this legislative document.
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b 81 .FEDERAL REPORTBB
After motion by the defendant for particulars, a stipulation was
filed in which it was agreed that certain attached heels (Plaintiff's Ex-
hibits 1 and 2, Defendant's Heels, Series A and B) were sold by the
defendant in the District of Massachusetts between January 11, 1916,
the date of the letters patent in suit, and the date when the complaint
in the cause was filed, and that the acts of infringement relied on by
the plaintiff were based on sales made by the defendant of heel lifts
the same as the heel lifts which formed Plaintiff's Exhibits Nos. 1 and
2, Defendant's Heels, Series A and B, or other heels exactly like them,
except as to size and color, and that the advertisements appearing upon
pages 29 and 30 of the record were issued and published under the au-
thority of the defendant, on or about the dates of their publication,
April 1, 1918, and July, 1920. The defendant thereupon moved to dis-
miss the complaint, on the ground that it appeared from the record thus
made that there was no infringement.
The case was treated in the court below as though the plaintiff had
set up 'in its bill that the defendant had been guilty of infringement by
selling the attached heels, and the defendant had demurred to the bill
on the ground that it appeared therefrom that the alleged infringing
structures were not infringements, and a decree dismissing the bill for
this reason was entered, from which this appeal is taken.
The questions presented by' the assignments of error, and here ar-
gued, are that the court erred (1) in holding that the claims in issue were
not infringed; and (2) in holding that the defendant was not estopped
from denying infringement, due to certain allegations in the bill of
complaint, in which the plaintiff claimed that the defendant had partic-
ipated in certain suits in the Sixth Circuit, brought by the plaintiff
against dealers to whom the defendant had sold heels exactly like Plain-
tiff's Exhibit No. 1, Defendant's Heels, in which decrees pro confesso
had been entered.
The theory upon which the court below proceeded in dealing with
the case was that it was its duty to grant the motion to dismiss, unless
it appeared that the heels in question were or could be found to be an
infringement of the plaintiff's patent, but that, if expert testimony or
other extraneous evidence was needed "to assist in the construction of
the patent, or to determine whether the defendant's products infringe,
the case must stand for hearing."
For the purpose of determining the questions raised by the motion,
the defendant concedes that the patent is valid, and that there is noth-
ing in the prior art, except as stated in the patent itself, and nothing in
the file wrapper, which should limit the plain terms of the patent.
The claims in issue read as follows:
"5. A heel lift of substantially nonmetallic resilient material, having its
body portion of concavo-coh'ez form on every line of cross section, the con-
cave upper face lying entirely below a plane passing through the rear upper
edge and the breast corners of the lift.
"6. A heel lift of substantially resilient material, having its body portion
of concavo-convex form on every line of cross section, the concave upper face
lying entirely - below a' plane passing -through the rear upper edge and the
breast corners of the lift, said lift being provided with nail-receiving openings
located near the center thereof.
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The Federal Reporter with Key-Number Annotations, Volume 281: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, September-October, 1922., legislative document, 1922; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38852/m1/22/: accessed April 20, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.