232 F. 156 | S.D.N.Y. | 1916
There are four patents here in suit which should be treated separately.
Patent 770,751.
1 therefore find, first, that the disclosure operated upon a different principle from the patent in suit; and, second, that it is invalid in any case, because it did not contribute to the art a practical device.
The next question is of infringement, and this turns, altogether upon whether, in the defendant’s cap, the bead’s “upper and lower inner walls firmly bind against the upper and lower surfaces of a peripheral portion of said ring, and hold squeezed from said groove the other peripheral portion of said ring.” The defendant’s bead, upon their own statement, “holds squeezed from said groove the other peripheral portion of said ring”; the only question is whether “the upper and lower walls firmly bind against the upper and lower surfaces.” If this clause means that it must be only because of the approach vertically of the upper and lower walls that the gasket is extruded from its former position, then I agree that the defendant does not infringe. What makes the gasket move out in their case is that the area of a cross-section of the bead is reduced, not only by the approach of the upper and lower walls, hut by intrusion of the side wall, which is bowed in, in the form of a re-entrant angle. It is true that this re-entrant angle drives before it nearly all of the gasket, but not quite all. All the sections actually made show that the gasket is pinched between the tipper wall and the upper side of the re-entrant angle, and between the lower side of the re-entrant angle and the false wire. In short, the former opening within the bead is made too scant, partly by the approach of the walls, and partly by the toggle action of the side of the bead, and the gasket is driven out by both factors; but the resulting pressure between the bead and the glass makes the gasket fill every part of the space left within the head. The approach of the walls does pinch all of the gasket which the re-entrant angle does not extrude front the bead; all the elements of the plaintiff’s operation are present, and in addition the added element of the toggle-like angle, help
Patent 1,134,067.
. The first question is of the prior use by Weller of the caps of Hull’s patent, 795,284, upon the Phoenix finish bottles. • Weller and Santen tell a straight enough story; they say that the Phoenix finish bottles ran somewhat unevenly, so that the caps would not fit. This led to a number of discards, and to use these up they ordered the caps from the Sure Seal Cap Company. If they did use them on Phoenix finish bottles, they certainly did practice the invention. That they did order and secure the Sure Seal Caps to the number of 330,000 in 1908 and 1909 every one concedes. That they used large numbers of them upon some bottles cannot likewise be disputed. The question then resolves itself into whether they used them upon Crown finish or Phoenix finish bottles, or rather whether they used them only upon Crown finish bottles. Although amply corroborated upon the purchase of the caps, Weller and Santen are not supported as to their use on Phcenix bottles; that rests solely on their memory. On the other hand, Hull says he went to' Cincinnati to install the machine, and that while he was there they capped only Crown finish bottles; more than that he cannot swear. He does say, and Magrane confirms him, that such caps could not have been made to stay on catsup bottles which were pasteurized in an open oven, as they were pasteurizing them. The pressure would have forced off too many tops to make the effort commercially practical.
It does not seem to me that the use is proven beyond a reasonable doubt. Although Weller and Santen were obviously disinterested and honest witnesses, and it seems unlikely that they should have remembered the' use of these caps on Phoenix finish bottles, if it were not so,, it is of course possible that after seven years their memory may be at fault. If the caps were bought only to use on Phcenix finish bottles,' why did not Hull see something of them? My doubt rests chiefly in whether the caps would have stayed fast. The Phcenix finish bottle has a slightly beveled top, and it seems to me most probable that under the pressures said to be generated when curing in an open oven they must have been loosened. Of course, I cannot myself speak of this matter; but the plaintiff’s experts stand uncontradicted in respect of it, and the antecedent probability makes in its favor. If forced to choose upon a mere balance of probabilities, I might say that Weller and Santen were right in their memory; but when forced to apply the extreme test, that there should be no reasonable doubt about it, I cannot find the use proven.
There remains the question of whether the new use of the old patent to a straight-walled vessel is in itself patentable. Stated in that
I do not find it necessary to take up claims 2 and 3 under this patent. Indeed it would probably be necessary to reopen the trial to do so, because I excluded evidence relating to the meaning of the words “formed of excess metal in the beading” — a matter not clear from the mere patent. If the Circuit Court of Appeals should take a different view from mine with respect to claims 4, 5, and 6, it might be necessary that that proof should be taken, but, since all these claims are hi one patent, the duration of the injunction will not be different, whether all or some only be sustained. As enough has been said to dispose of the actual device in suit, it seems hardly worth while to reopen the cause merely upon a chance which may prove to be of only academic interest.
Patent 874,201.
Patent 1,134,065.
The final invention is the locking doors, claims 14, 15, 16. There must be a door to the vacuum chamber, and this must be packed at its edges, and firmly held, or the air will come in. Various forms of door are possible, and the plaintiff has chosen one; that is, carrying the doors upon substantially parallel arms. Such arms were not new in mechanics, though they were new in precisely this situation. The case is close, but I should hardly consider the swinging of a door in such a way a patentable novelty. It seems to me a mechanical detail, on which the general mechanical arts offered several possible alternatives. I shall not, therefore, issue a decree upon these claims, which I think void for nonpatentabiiity.
A decree will go in accordance with the foregoing opinion, without costs.