Eleven months after the patent in suit, No. 1,612,788, had, on December 28, 1926, been granted for an improved tire flap, this suit was begun, and a month later it was dismissed on appellee’s motion, charging that the patent was void on its face because of lack of patentable novelty and invention.
This ease is quite unusual, in that the specification sets out the state of the art at the time the inventor (Walten) entered the field, and the difference between the flaps in the prior art and the one covered by the patent. The motion admits that infringement speedily followed the issuing of the patent.
The flap, a strip of material lying between the inner tube and the tire rim, so that it covers the channel-like opening in the casing, as formerly made, had a perforation to fit over the valve stem, and that was far enough from the end so that the part of the flap behind the perforation was long enough to underlie the three perforations in the other end of the flap, through one of which, for proper adjustment, the valve stem was also placed. Because there were five sizes of tires, it was the practice, and, so far as known prior to Walten,'necessary, to manufacture, and the dealer had to carry, a supply of flaps in each of the five lengths. What *160Walten sought to do was to make one flap that could be easily altered by any one so that it would not be necessary to manufacture or carry in stock the five sizes theretofore made and carried. Some of the difficulties to be overcome in accomplishing his purpose are pointed out in the application. Whether the many millions of automobiles, which we know as a matter of common knowledge have been manufactured during the last thirty years, used with each of their four wheels a tire flap, we do not know, but the number that must have used them is so large that the desirability of reducing the number of tire flaps to be carried in stock we think is apparent. The haste with which appellee adopted Walten’s flap is some evidence that the trade approved such a change.
What Walten did was to make a flap of the maximum length required. In'one end he made the perforation that is first placed over the valve stem, and on the other end he stamped upon the flap figures and marks showing where the perforations are to be made to adjust the flap over the valve stem for the different sized tires. Whether that amounted to invention, we do not determine, but are of opinion that, on the face of the patent, so much that is new and useful appears that it was error to determine without a hearing whether’ there is patentable novelty.
The decree is reversed, and the cause remanded to the District Court, with direction to deny the motion to dismiss the bill.