66 F. 765 | 7th Cir. | 1895
after stating the case, delivered the opinion of the court
We are of opinion that the circuit judge did not err in holding Hie patent to be limited to a. conical or cone-shaped cork. That, the inventor so understood when he first claimed the combination of bottle and cork is conceded, and is demonstrated by the explicit language both of the claim and the specification. It is true that the language of the specification and of the claim of the patent is different in this respect from that first used in the application, hut the correspondence contained in the file wrapper discloses no purpose to change ihe character or scope of the invention in this particular. To sky that; the change is immaterial because when in place the stopper necessarily conforms to its seat, and has the same effect as if it had been conical before insertion, is evasive of the
This conclusion does not rest upon an implication, but upon the fair and reasonable construction of the patent. To say that it deprives the patentee of a part of his invention is to beg the question; and it is scarcely better to say that it deprives him of his whole invention because “every one can see, and it is not disputed, that a cylindrical cork will operate as well as a conical one, and is much more easily and cheaply made.” That argument might be pertinent to the question whether or not upon any construction
1. It is urged that the cork of the patent in suit must be inserted in its place under powerful compression by a machine, “so that its original form may be prodigiously distorted, and its available expansive force correspondingly increased”; or, as it is also expressed,- there must be “a bottle neck in combination with a cork to which a prodigious amount of lateral expansion has been given by machine insertion.” That is to say, the cork is to be inserted by machine with such force as to make it tight enough to stay, and, excepting the use of a machine, that is the meaning of Stock-er’s specification. But the use of machines for inserting stoppers in bottles was already so well understood that there could be no novelty in that mode of insertion, and whatever advantage results from it is of degree merely. Besides, we are not able to agree that the claim of the appellant’s patent is limited to a cork inserted by a machine. In response to a demand from the patent office, made presumably for the purpose of eliciting evidence of the practical utility of an invention which required the insertion of a cone-shaped cork larger end foremost, he added to the specification the clause concerning “the corking apparatus”; but we do not suppose that it was, intended, or rightfully could have been required, that he thereby should limit his claim to a combination of bottle and cork effected by machinery, and we do not think that his compliance with the suggestion or demand of the office had that effect.
2. It is said that the receptacle in the neck of Stocker’s bottle was made in the process of blowing’ and for that reaspn is necessarily defective. If the defect be real and more than a matter of degree not affecting the question of patentability, it involved no invention to revert to bottle necks put on by the proee'ss of welding, from which Stocker departed for the sake of economy. If, too, instead of a bottle for sauces, he had- been planning for liquids which are bottled under pressure, he would have been under no necessity to invent, but simply to adhere to .the use of bottle necks put on in the old way, and to insert his corks by means of machines already in use. Indeed, his specification says that, “in order to facilitate the introduction of the cork ring or improved stopper,” he preferred “to expand the lip or upper edge of the part, so as to cause it to assume a slightly bell-moutli form”;v and, if unknown before, that would have been a fair suggestion of-.the use of converging tubes as means for compressing and forcing the corks or stoppers into place.
3. Stocker’s cork, it is said, differs from that of the appellant in that its central portion is made of glass, provided with screw threads and with a roughened or milled glass head; its outer-portion is made of a ring of corkwood, etc., and it is not capabléfof
4. It is said that the stopper of Stocker’s patent is not a solid or one-part stojiper, such as is required by the claim of the patent in suit. Whatever significance there is in that objection is answered by wliat has jnst been said. It required no invention to revert to old and simple forms. We do not perceive, however, that the word “'solid’’ in the claim of appellant's patent requires that the cork shall be of “one part” or one material, “homogeneous throughout.” Thai is not among the definitions of the word, and, if it were, its application to this patent is forbidden by the specification which recognizes it as “evident that some cheaper material, such as pottery, clay, or cheap metal, might be inserted in the central part of the cork to lessen its cost.” If it were conceded that the solid cork means one made of a single homogeneous material, the appellees have not infringed, because their cork, though solid, contains different’substances. If there were nothing else, the presence of the metal ring or staple would be enough, under the definition, to distinguish the stopper of the appellees from that of the appellant. Though the ring is designed mainly to be used in extracting (be cork, yet the end imbedded in the body of cork, it is evident, constitutes a different and nonhomogeneous substance; and, if considerably enlarged, it might, by reason of the cheapness of the metal as compared with caoutchouc, serví; materially to lessen the cost. At the same time, it is manifest that a, cheaper substance within the body of the cork, if the exterior parts be sufficiently thick, will not affect the fitness of the cork for insertion and use in appellant’s combination; and, this being so, it is evident that, unless limited to a conical cork, the combination is fully anticipated by the patent of Parker. It is not material that Parker's invention may have been intended mainly for putting up and preserving fruit. The appellant’s jar is adapted and was designed in part for the same purpose, and the patent, whether considered as related to bottles or jars, contains no fea tun; of construction, unless it be in the cone-shaped cork, nor principle or mode of action, which is not illustrated in the specification and drawings of Parker.
Ho, too, in the patents of Shaw and Baxter, there needs only to be a return to the solid cork, from which they sought to escape, and in each there is a perfect anticipation of De La Vergne’s patent. It is true that the corks of Shaw and Baxter extend above the lips of the bottle, but, if the complainant’s invention be Worthy of the name, it cannot be evaded by making a part; of the cork to
But, without further consideration of the prior art, we deem it sufficient to add that if the De La Vergne claim is not limited to a cork in the form described it necessarily follows that the patent covers any and all kinds of stoppers made of rubber, common cork, or other elastic and pliable material, when inserted in a cone-shaped bottle neck, under such compression as to cause it 'to fit tightly and press with force against the converging sides of the receptacle, no matter what the form before insertion. The art of stoppering bottles had long been too well advanced to admit of a claim so broad; the patentee did not conceive it; and no ingenuity of argumentation or charm of eloquence can justify his efforts to appropriate it. The decree below is affirmed.