217 F. 381 | 6th Cir. | 1914
(after stating the facts as above).
“But, when Painter patented the mechanism alleged to bo infringed in this case, the art of bottle-sealing by crowns had already invaded the art of yielding pitman, of which the known forms Were many, and had made an appro*386 priation therefrom. Whatever may be the merits of his invention, we find nothing in his grant which shuts the door of opportunity to some other inventor to go to the yielding plunger art for an old device of this character.”
In the Painter patent in suit we can find no room for a suggestion of inoperativeness or uncertainty which would justify such interpretative treatment. All the 12 other claims of the patent, not selected for this suit, refer to the machine as a whole. One of them expressly includes this secondary or lighter spring as an element, and others contain phrases which might be construed as referring to that spring; but each of these 12 claims is, in other respects, so limited that, very likely, plaintiff was well advised in not bringing suit upon them. In distinction from the other 12, each of the 3 claims sued upon is confined to the “pressure-limiting mechanism” of the machine, and directed only to the pressure-limiting function, apparently with the distinct purpose that these claims might be broad enough to cover Painter’s pressure limiting mechanism, no matter in what general association it was put. The “pressure-limiting function” is finished before this secondary spring begins to operate, and to read the secondary spring into these claims would be to say that a pressure-limiting mechanism, described as consisting of certain parts, included a part which was not named and which had no share in limiting the pressure. This is an impossible conclusion. If this suit were directed against a device which had no such secondary spring, but in which the telescoping cylinders completely collapsed when the dogs were tripped, and in which the table must, each time, be manually raised and reset, we would be compelled to find that infringement of these three claims was not avoided by the omission of this resetting spring. It is not improbable that the patentee and his solicitor regarded this secondary spring as of importance only where there was a series of sealing machines working in very rapid succession, as shown in the specification and as specified in the only claim which names the resetting spring, and that the patentee purposely drafted these three claims so that they would be broad enough to cover a slower device which should be reset by hand. To narrow them now by a limitation which the patentee refused to have would be to trifle with the patent contract. So far as the decree below finds noninfringement of the Painter patent, it must be affirmed.
the comparatively separated chamber, B, it follows that the crowns are not presented to the selecting mechanism in a large mass, or pressed by the weight of those in the hopper, but that comparatively few continually come down and fall over against the rotating side of the cage. This is provided with lifters or wings, which pick up the crowns from the bottom of the chamber, B, and carry them up to a higher position, from which they slide through the opening in the side of the cage into its interior. Here the comparatively few which enter at a time are tumbled, and in the periphery of the tumbling cage are passages or openings such that, whenever a crown is presented in
The contention that the opening on the hopper side of the rotating cage is not central of the cage is not tenable. True, the exact center on this side of the cage is closed by the shaft and its box, and the opening is an annular one surrounding this box or shaft hub; but exactly the same thing is true of the patent in suit, and, in both cases, this opening is relatively central with reference to the extreme diameter of the cage.
First, as to the external chamber: Did anything occur by which the applicant agreed to a definition of this chamber as one on the side of the lower part of the hopper and with a clear and absolute line of demarcation between the two, rather than as merely a suitable passageway leading from the inclined hopper bottom and presenting at its further edge only the bottom of a sloping pile of crowns? The claims which involve this external chamber appeared in the original application as 1 and 2. One of them named this part as “a passage for supplying the crowns from the hopper to the cage” and the other named it as “an auxiliary chamber adapted to receiving the crowns from the hopper.” These claims were rejected on reference to patents to Muslar, Gillette, and Bennett. Thereupon applicant canceled these claims and substituted four others, each of which contained, in some form, as an element, this external chamber, but in no one was there any restriction upon its location, size or shape. Neither did any one of the four claims carry any restriction upon the form or construction of the rotating, selecting cage, excepting that it rotated in the external chamber and was provided with exit passages. The rejection was repeated upon the same references. These claims were canceled, and two new claims were submitted. Each of these included a reference to “a chamber external to the hopper.” These were again rejected. The applicant asked an explanation of the rejection, and the examiner pointed out that:
“Bennett discloses a hopper and chamber external to the hopper, an inclined bottom to the hopper for feeding to the external chamber and a selecting cage in the external chamber, an exterior portion of the cage forming part of the front wall of the chamber.” '
To this statement applicant responded with an argument pointing out the distinctions between his device and Bennett’s. He insisted that Bennett had no selecting cage, in applicant’s use of the phrase, and had only a notched disc which picked up buttons directly from the mass in the bottom of the hopper, and pointed out that in both the references the articles did not pass into a selecting cage to be tumbled, and said:
“In applicant’s case, they pass in a mass into the interior of what is truly termed a rotating cago, and they are selected by passing through the pockets from t.he inside outward. This construction is the gist of applicant’s invention, which enables it to successfully select and fit the crowns. * * * Thus neither Bennett nor Gillett really use a selecting cage. * * * The claims now presented have also the element of a rotating selecting cage, having ono side closed and the other open.”
Accompanying this argument was the claim now in suit, and it was thereupon allowed. It differed from and was more limited than the claims which had been rejected, not at all with reference to the external chamber, which was claimed in the same general language which
This history demonstrates that no limitation upon the form or location of the element, which was sometimes called an external chamber and was sometimes called an intermediate passage, was, at any time, put upon the claim as the result of any rejection. The patent to Bennett is not included in the record. We must, therefore, take at their face value statements regarding it made by the application record. The two other patents cited, Muslar and Gillett, disclose nothing corresponding to the external chamber. However, since it was said to be contained in Bennett, and this was not denied by applicant, we must assume that it was. It follows that there is no patentable novelty in this external chamber alone, considered as a passageway which would present crowns to selecting mechanism in such a way as to prevent clogging; and the same conclusion would seem to follow as to the hopper with inclined bottom in connection with the external chamber or :passageway; but it does not follow that there could be no invention in combining these two elements with a new form of a selecting cage adapted to receive and tumble'and select the closures fed through the hopper and intermediate chamber.
When we trace the rotating cage through the history of' the claim amendments, we find that it was at first named broadly as merely a rotary, selecting cage. Then, in the four claims, it was limited to a selecting cage rotating within the external chamber and containing exit passages. After these claims were rejected, the two next presented tendered a less limited description of the selecting cage, providing only that it should form one wall of the external chamber, but without any limitation upon its interior shape, construction, or operation. Then, when the Office pointed out that Bennett was thought to have a rotating cage responding to these two broadened claims, applicant presented the argument already quoted, insisting that the Bennett device had no rotating, selecting cage in the sense in which the claim used the term, and for greater certainty and better distinction pointing out that the ..rotating cage, which was to be an element of the combination in the patent being solicited, should be centrally open at one side, so that crowns could pass in a mass into its interior and be there tumbled, being kept in by the closed opposite side of the cage and being allowed exit only through suitable peripheral passages. The examiner, representing the government, acquiesced in this view, and a patent issued. Certainly there is, in this course of conduct, nothing limiting the claim that form of central opening in one side of the cage or to that form of closing the opposite side of the cage which the drawings show. The proceeding, as a whole, shows that applicant in the end insisted that it'was new to combine in one structure the hopper with the inclin,ed bottom, the external chamber or intermediate passage leading from the inclined bottom to the selecting cage, and a rotating, selecting cage which had an interior cavity where a comparatively small number of
It is not fully accurate to say that the selecting cage of the patent rotates “in the external chamber,” and this descriptive phrase must be read with reference to the actual structure to which it refers. As the claims are worded in some of the amendments, this rotating cage forms one side of the external chamber. It is not wholly wrong to say that a rotating disc, which forms one side of the chamber, and so is one part of the chamber, rotates in the chamber. The function of the patent consisted in so relating the chamber and the cage that the crowns were passed slowly into the cage, so that it would contain only a few at a time. This was new, and we are not inclined to give the word “in” its most precise meaning; but even if we should, and should say, as defendant argues, that the cage of the patent rotates “in the external chamber” only by means of its vanes or lifters, which project into the chamber so as to contact with the crowns which lie at its extreme edge, and, therefore, that defendant’s cage must be found to project into the chamber in the same way, it would not alter the result. Defendant also has vanes or wings projecting beyond the chamber surface of the cage, and so projecting and rotating in the chamber. The projection is slight, but it is sufficient to reach and affect the adjacent crowns. They are not lifted up and carried over, just as in the patent in suit, but they are pushed along, or agitated, and caused to fall over, with practically the same result.
Construed as we think the claim should be, no one of the distinctions between it and defendant’s structure is material, and there should be the usual decree for injunction and accounting. In this particular, the decree below is reversed, and, for that purpose, the case is remanded, with costs.
“Claim 2. — In an automatic feeding apparatus for bottle-sealing machines, a hopper for the indiscriminate reception Of the crowns or closures, a chamber external to said hopper, an inclined bottom to said hopper adapted to leading the closures to said external chamber, and a receptacle or cage rotating within said external chamber, having one side closed and a central opening in the side adjoining said hopper, adapted to receive the crowns or closures indiscriminately from the hopper, and containing in its periphery suitably-formed passages such that the crowns or closures can pass there-through in one position only, whereby, by the tumbling action of said cage, the crowns or closures are changed in position therein until they present themselves in proper position to pass through said passages to a surrounding channelway, substantially as described.”