(dissenting). This court said, in Damrow Bros. Co. v. Stoelting Bros. Co. (C. C. A.) 295 F. 492:
“While a patent carries with it a prima facie presumption of validity, yet that presumption does not hold if the patent is found to be invalid upon its face.”
In support of this statement, Richards v. Chase Elevator Co., 158 U. S. 299, 301, 15 S. Ct. 831 (39 L. Ed. 991), Sodemann Heat & Power Co. v. Kauffman (C. C. A.) 275 F. 593, 595, and De Vry Corporation v. Acme Motion Picture Projector Co. (C. C. A.) 262 F. 970, are cited. In the last-cited case, other authorities may be found supporting this position.
It seems to me that the Walten patent in suit is manifestly invalid upon its face, and the District Court properly granted the motion to dismiss.
The patent relates to an improvement in tire flaps, an article well described in the majority opinion as being “a strip of material lying between the inner tube and the tire rim so that it covers the channel-like opening in the casing.” A single claim of the patent will suffice to disclose the improvement. Claim 1 reads:
“A tire flap having at an imperforate portion of itself near one end, indicia for aperturing said imperforate portion to make the flap any one of a plurality of sizes.”
All tire flaps, prior to this invention, were provided at one end with an opening and at the other end with several openings, through which the valve stem of the inner tube is placed when in readiness for use upon the rim. The plurality of holes at one end of the flap is to give greater adjustability.
Appellants’ improvement is in supplying “indicia for aperturing said inperforate portion to make the flap any one of a plurality of sizes.” In other words, the flap described in the patent is provided with marks which inform the user where he may cut additional openings in the flap to make it shorter. Clearly it would not constitute invention to mark places in a belt through which holes might be cut to make the belt shorter. This, it seems to me, is all that Walten did.
My associates do not say this constitutes invention, but merely hold that evidence should be received to demonstrate that the problem was so difficult and the results so desirable that, upon a full hearing of the ease, the court might possibly find that invention resided in this simple expedient for shortening the flap.
I cannot believe that there was any patentable novelty which can be ascribed to the use of an expedient so simple and commonly used for shortening the usable portion of a belt, strap, flap, or other similar article. What any 10 year old boy, upon finding his older brother’s belt too large, would do with his jackknife, would hardly be called an inventive discovery.
Likewise the accurate selection of the places of perforation, based on the known relation of diameter to circumference, would involve a mere mathematical computation, rather than evidence the genius of an inventor.