ANATOMIK FOOTWEAR CO. v. COWARD

ANATOMIK FOOTWEAR CO. v. COWARD. (Circuit Court of Appeals, Second Circuit. May 2, 1915.) No. 266. Appeal from the District Coifrt of the United States for the Southern District of New York. James H. Griffin, of New York City, for appellant Louis W. Southgate and O. Ellery Edwards, Jr., both of New York City, for appellee. Before COXE, WARD, and ROGERS, Circuit Judges. [MAJORITY — WARD, Circuit Judge.] WARD, Circuit Judge. The opinion of Judge Rose dismissing the bill in this case founded on United States letters patent No. 812,920, issued to- one Cole, for anatomical footwear, will be found at 220 Fed. 342. It may be conceded that Dr. Galloway did not describe in his article published in 1898 the complainant’s shoe, because he used a heel, higher on one side than on the other, and also that Kohn’s patent, being merely for design, shows nothing material and that Tillottson’s patent does not claim the features that Dr. Cole relies on. Still these documents and the proof of prior practice taken together do show that before Dr. Cole applied for his patent it was known that a wide solo and shank and heel, the heel being longer than usual and projecting forwardly on one side, were beneficial, whether the anatomical reasons were appreciated or not. We do not think that what the patentee did under these circumstances amounted to invention. Decree affirmed.