Opinion
No. 3854.
August 31, 1926.
Jones, Addington, Ames Seibold, of Chicago, Ill., Charles F. Perkins, of Boston, Mass., and A.A. Olson, of Chicago, Ill., for plaintiffs.
George E. Mueller, of Chicago, Ill., for defendant.
In Equity. Suit by James A. Hewes and another, partners as Hewes Potter, against Deiches Co., for infringement of patents Nos. 1,419,137 and 1,481,837, for neckties, both issued to James A. Hewes, the first June 13, 1922, and the second January 29, 1924, and by him assigned to Hewes Potter. Bill dismissed.
After carefully considering the evidence and argument of respective counsel, the court is of the opinion that the patents in suit are invalid for want of invention, and that the product of plaintiff made in pursuance thereof represents merely the ordinary skill of the experienced worker in the art in making improvements, within the meaning of those words as defined in repeated decisions of the courts.
Judge Thomas reached a different conclusion in Hewes v. Gay et al. (D.C.) 11 F.2d 165, but it seems manifest to the court, that, had the evidence as to the prior art there presented been of the full and complete character of that in the present record, he would have reached the same conclusion as that here announced. Consequently, following the rules governing comity as announced in Mast, Foos Co. v. Stover Mfg. Co., 177 U.S. 485, 20 S. Ct. 708, 44 L. Ed. 856, this court should not disregard the record here, in order to reach the result arrived at upon a different state of facts, in a case where the parties were not the same as those now before the court.
There will be a decree dismissing the plaintiff's bill for want of equity, at plaintiff's costs.