
    WAY v. HYGIENIC FLEECED UNDERWEAR CO.
    (Circuit Court of Appeals, Third Circuit.
    November 26, 1907.)
    No. 19,
    October Term, 1907.
    For opinion,below, see 150 Fed. 374.
    Joseph C. Fraley and Henry N. Paul, for appellant.
    H. F. .Fenton, for appellees.
    Before DALLAS and GRAY, Circuit Judges, find CROSS,’ District Judge.
   DALLAS, Circuit Judge.

This is an appeal from a decree dismissing the bill in a suit which was brought upon the second claim of patent No. 593,954, issued to John Howard Way, for a chest and neck protector. Way v. Hygienic Fleeced Underwear Company (C. C.) 150 Fed. 374., - The first and third claims ,of this, patent were held to be invalid in the case of Way v. McClarin (C. C.) 91 Fed. 663, and (on appeal) 96 Fed. 416, 37 C. C. A. 516. It is true-that in that case the claim now in question was not involved; but we think that the opinions which were delivered, for this court, and by the Circuit Court, are. as applicable to claim 2 as to the claims- which were then actually passed upon. ■ The difference relied on to distinguish that claim from the others is that it alone directs that the collar and depending flap of the protector shall be formed of a single piece, and we have not been convinced that in pro-, viding for this detail the inventive faculty was exerciséd. In the specificatiqn it was said i that “the garment is * ' * * preferably formed with its parts integral,'tñe entire g¿rment being formed from a single piece of knit goods,” and, no doubt, it is desirable that it should be so formed; but we cannot believe that any one skilled in the art would not have recognized this advantage for himself, or would have needed any instruction for its attainment. The substance of the matter, as we view it, is that a seam to connect the collar and -the flap is objectionable, but that its omission-is well within- the réalm Of mere mechanical dexterity. The decree is affirmed.  