This case has to do with devices for holding shoes in shape while in nonuse, the idea being to keep the shoe substantially in the shape produced by wearing, and to accomplish this through means creating outward and extension pressure.

Although, upon hearing below, the validity of the plaintiff’s patent, known as the Legg patent, was not drawn directly in question, it is quite apparent that the view of the District Court was that it was difficult to find anything patentable and new in the combination which the patentee described; yet that court was not called upon to do so, *532and did not undertake to pass upon the question of the validity of the plaintiff’s patent.

Leaving the question of patentable invention undecided, was entirely consistent with the theory of the defense, which was, in view of the state of the art, thát the Legg patent should be construed as confining itself to the device which the patentee described, with the provisional contention that, if the Legg claims were given the breadth of scope claimed by the plaintiff, the patent would be void. The District Court reached the conclusion that the claims of the Legg patent, from 4 to 7, inclusive, which were the only ones in issue, should be limited to the particular combination described, and, being so limited, that the defendant’s device did not infringe; and, as a consequence, all questions of the validity of the Legg patent became entirely immaterial.

The question of infringement thus becoming the only question in issue, it depended largely, if not altogether, upon the construction of the claims in the Legg patent, and the question of construction was reasonably and necessarily influenced by the prior state of the art.

It is very clear that the Legg patent did not hold such a relation to the idea of preserving the shape of shoes in nonuse as, under the rules of liberal interpretation, would justify a broad construction of its claims. In short, it was not in any reasonable or substantial sense a pioneer patent, because there were other patents and devices which had in view the idea of holding shoes in such shape or form as had been created by the wearer. The District Court refers to the earlier patents of Tyler and Thurell, with the observation that both described shoe forms with mechanical adjustments and means for automatic ■expansion.

At most, the patentee in the Legg patent, as he explains it in his specification, relies upon novel features of his adjustable shoe form as improvements, and he particularly describes his mechanical means for creating and guiding the expansive and contracting movement.

The learned judge presiding in the District Court considered and ■elaborated the state of the art, and made a careful analysis of the elements of both the plaintiff’s device and that of the defendant’s alleged infringing form and combination, with the result of finding and holding, in effect, that the defendant’s means for securing flexible and expansive connection between the two parts of his form: — which were ■combined in accordance with the Reinhardt patent of November 24, 1914 — differed no less substantially from those in the patent than from the means used in devices prior to both the Legg and Reinhardt patents. That court’s appreciation of the prior art is so clearly expressed, and the elements mechanically combined and arranged in both the device of the plaintiff and that of the defendant are so carefully analyzed and stated by that court, that we need not cover such ground in detail at the necessary expense of reiteration; and this is so because, if the state of the art was such as to justify a construction limiting Legg to the combination which he described, and we think it was, the conclusion plainly and unmistakably results from *533an examination of the two devices that the defendant’s combination does not infringe.

It is our conclusion that the result reached in the court below was right; and—

The decree of the District Court is affirmed, with costs of this court.

(dissenting). The problem was to make a shoe form which would support the shoe throughout the entire length, which could be easily inserted into the shoe by bending and compressing without unduly stretching the shoe, and which, having been inserted, held the shoe in shape under a slight tension. The art ■had advanced to a point where forms were best made hollow, so that it was necessary to provide the qualities above named in a hollow form. This had never been done prior to Degg’s invention.

Only three prior patents are referred to. As far back as 1885, Rogers had made a hollow shoe form having toe and heel pieces which were hinged together. Apparently it was inadequate and never went into extensive use. It had to be forced into place, and it had no capacity to adjust itself longitudinally to the shoe. Thurell, in 1900, with the Rogers device before him, and with the same problem in mind, did not combine heel and toe pieces. His form consists only of a toe piece kept in place by a wire bent to conform to the inside of the heel; it has no heel piece at all in the ordinary meaning of the words, and seems to have had no practical value. Two years later, in 1902, Tyler got up a wooden form, having sliding hinges and a separate spring between them for forcing apart the heel and toe pieces. Tyler’s hinges and spring were inserted in recesses in the wood of the heel and toe pieces. His construction is wholly inapplicable to a hollow form, and his mechanism is radically different from that of the patentee. He evidently saw the need, but was unablé to supply it in a commercial form.

This was, so far as appears, the entire development of the art, when, in 1907, Degg made the invention here in question, in which he united hollow heel and toe pieces by hinges of simple and practical construction which allowed the two parts of the form to be bent and compressed, and which were so arranged as to force them apart by spring tension when the form had been placed in the shoe. There is no evidence of any earlier hinge combining flexibility and extensibility, nor of any shoe form in which such a hinge had been used, nor of any flexible and extensible shoe form of commercial value. The Degg patent admittedly describes the first commercially successful article of its particular kind. Degg made the advance which achieved that result, and he made it where others had failed.

Degg’s device was apparently just what the trade was waiting for. The evidence of prompt adoption and use by the public is usually strong and convincing. Evidence of commercial value is, of course, often exaggerated, and patentees are apt to puff their inventions in arguing infringement cases. At the same time, when the facts of un*534successful prior efforts and of prompt and widespread public adoption of the patented device are satisfactorily proved, they constitute weighty evidence of invention. I do not think that evidence is overthrown by other facts in this case.

In the circumstances, I think the Legg patent entitled to a more liberal construction than that given to , it by the majority opinion. Reinhardt, who had been employed by the complainant, adopted Legg’s idea and proceeded to embody it in a structure which is clearly within the specification and claims of the Legg patent, and is, in my opinion, nothing but a mechanical equivalent for the Legg device. To say thát Reinhardt’s structure, which the defendant is making, differs no more from Legg’s than Legg’s did from those preceding it, is, it seems to me, to lose sight of what the, Legg invention really was.

For these reasons I am unable to concur in the opinion of the court.