
    I. B. KLEINERT RUBBER CO. v. POLKASE MFG. CO. et al.
    (District Court, S. D. New York.
    March 25, 1925.)
    Patents <§=>328 — 1,314,799, for moisture-proof garment for infants, held invalid.
    Guinzburg patent, No. 1,314,799, for moisture-proof garment for infants, held invalid.
    In Equity. Patent infringement suit by the I. B. Kleinert Rubber Company against the Polkase Manufaeturirig Company and another.
    Bill dismissed.
    Decree affirmed 10 F.(2d) 400.
    Joseph L. Levy, of New York City (O. Ellery Edwards, of New York City, of counsel), for complainant.
    Schechter & Lotsch, of New York City (J. Schechter and John L. Lotsch, both of New York City, of counsel), for defendants.
   AUGUSTUS N. HAND, District Judge.

This is a suit fpr infringement of United States letters patent No. 1,314,799, to George K. Guinzburg, for a moisture-proof garment worn by infants over the ordinary absorbent diaper. The original claims were rejected in the Patent Office on the patents No. 36,125 to Higgins, No. 462,965 to Darby, and No. 833,849 to Sehiff. They were then amended so as to provide that the elastic strip surrounding the leg and waist openings should be unshirred. As thus amended, the claims were twice rejected upon the former referenees, but finally, for reasons which do not appear, were allowed.

Now, there can be no doubt that the garment has met with a very considerable commercial success. There has been ample advertising, and there have been on the market other rubber garments made for similar use, Exhibits B, M, and N, not within the terms of the claims of the patent in suit. The question may well arise whether the success is not due to the popularity of rubber garments, which are light, cleanly, and readily washed, rather than to the peculiar features of the Guinzburg garment.

The leg bands (4) of the Darby patent, No. 462,965, show flat elastic bands in contact with the legs used for a similar purpose. There is no shirring, and the full surface of the band is not apparently stitched on the inner face of the leg of the garment, as shown in the patent in suit.

In the patent to Sehiff, No. 833,849, the elastic thigh bands (16) are “disposed in pockets formed for the purpose, * * * in order to avoid injury when the garment is washed,” but they serve a similar purpose to those of the Guinzburg garment.

In the patent No. 36,125 to Higgins; the elastic bands are said to “fit sufficiently close to the- child’s thighs to prevent water from running over its own clothes or the dress of its nurse.” This patent is a very close reference, and contemplates a garment of “thin India rubber cloth,” though it is not clear that the bands are on the inner face of the leg or the waist openings. Indeed, the leg bands'are apparently designed to be inserted in a sort of pocket. As the specification says, the elastic of the bands of the legs is stitched to the garment; “the fullness of the material being properly gathered around the band.”

In the earlier Guinzburg patent, No. 1,-033,097, drawing strings are used to- tighten up the edges of the waist and leg openings, instead of the elastic band with a shirred backing. These drawing strings, rather than elastic bands at the openings, are the main differences between the earlier .and later patent of Guinzburg. It is to be noted that the patent in suit is not limited to a rubber garment, and only claim 6 specifically calls for such material. Rubber is preferred. So it was by Higgins.

The question seems to be whether the application of the flat elastic band of the Darby patent to the inner face of the leg of the garment disclosed in the Higgins patent is a critical matter of sufficient importance to involve invention. The' patent in suit got through the Patent Office with difficulty, and apparently only succeeded because a flat band was used to line the shirred openings. I can see no reason to believe such a matter is of great importance, or that the Higgins model, with a flat band inside a rubber pocket, would not have been as safe and useful as that of Guinzburg. Exhibits B, M, and N, now on the market, seem to be practical models, and they have the rubber pocket of the Higgins model. But if Guinzburg’s garment is slightly better, because a shirred pocket would chafe the body of the child, the change to a smooth flat band was an obvious step for any who desired to take it and involved no invention.

The bill is dismissed, with costs.  