
    WAY v. HYGIENIC FLEECED UNDERWEAR CO. et al.
    (Circuit Court, E. D. Pennsylvania.
    January 5, 1906.)
    No. 49.
    Patents — Invention—Chest Pbotector.
    The Way patent, No. 593,954, claim 3, for a chest and neck protector, since the disclaimer of claims 1 and 2, is not so clearly void on its face as to justify its being so declared on demurrer.
    In Equity. Suit for infringement of patent. On demurrer to amended bill.
    Fraley & Paul, for complainant.
    Hector T. Fenton, for respondents.
   J. B. McPHERSON, District Judge.

Notwithstanding the able and earnest argument on behalf of the defendants, I am not prepared to say that the validity of the second claim of the Way patent should be determined upon this demurrer, but in so declaring I am not to be understood as intimating any opinion concerning the goodness of that claim. It is admitted to be narrow, and there may be difficulty in saving it after the disclaimer of claims 1 and 3, which was made necessary by the decision of Judge Dallas in Way v. McClarin (C. C.) 91 Fed. 663, affirmed by the circuit court of appeals in 96 Fed. 416, 37 C. C. A. 516, but the difficulty may not be insurmountable, and, at all events the complainant will have the usual opportunity to support his contention by such proofs as may be available.

Moreover, I am not satisfied as to what weight should be given to the so-called estoppel set up in the bill. The defendants' brief pays little attention to the subject, and I do not feel willing to decide it without a fuller argument, and without feeling sure that all the facts are before the court.

The demurrer is overruled, arid the defendants are directed to answer the amended bill within 20 days.  