6 F. 897 | U.S. Circuit Court for the District of Southern New York | 1881
This suit is brought on re-issued letters patent granted to Karl Hutter, June 5,1877, for an improvement in bottle-stoppers, the original patent having been granted to Charles De Qnillfeldt, as inventor, January-5, 1875. This is the same re-issue adjudicated upon in the
. 1. The infringing' stopper in this suit, known as Exhibit No. 1, is called the Von Hofe stopper, and is the same as Exhibit No; 11 in the Hollender suit. It is shown in this suit to.be made in accordance with the description in letters patent granted to the defendant August 24, 1875, No. 167,141, for “an improvement in bottle-stoppers,” the application for which was filed July 30, 1875. The application for the original De Quillfeldt patent was filed November 30, 1874. It is-alleged in this' case that the defendant’s stopper infringes thq first and ninth claims of the plaintiffs’ re-issue. In the Hollender suit it was not alleged that the Von Hofe stopper infringed the ninth claim. It was alleged that it infringed the first and second claims. In this suit it is not alleged that it "infringes the second claim. The question as to its infringemant of the first claim was very fully considered in the decision in the Hollender suit, and the stopper was held to be an infringement of that claim. ’ The defendant’s stopper contains all the elements found in the ninth claim of the plaintiffs’ re-issue, combined in substantially the same way and having substantially the same mode of operation. The ninth claim is for “the combination of the pivoted bottle-stopper with the yoke, C, neck-ring, a, and eccentric lever, B, the said yoke and eccentric lever being pivoted together and arranged so that the stopper is forced into the bottle by swinging the handle part of the lever against the side of the bottle, substantially as.herein shown and described.”
The defendant’s stopper has the combination of a pivoted bottle-stopper, composed of a rigid part and an elastic part, a yoke, a neck-ring, and an eccentric lever; the yoke and the eccentric lever being pivoted together and arranged so that the stopper is forced into the bottle by swinging the handle part of the lever against the side of. the bottle. The lever in the two stoppers is eccentric, in the sense of that word as used in the plaintiffs’ specification. That specification says that the pivoted connections of the yoke to the lever are so
2. The defendant has introduced several prior patents on the question of novelty, as well as to affect the construction of the claims of the plaintiffs’ re-issue. There are the following United States patents: Jeannotat, July 17, 1855; Cronk, March 19,1861; Wiegand, September 29,1863; Sehlich, September 5, 1865; Robinson, and Jenkins, December 11, 1866; and Weber, July 2,1867. There are the following English patents : Chalus, full specification filed March 7,1857; Thompson, full specification filed September 28,1867; Michaelis, full specification filed March 11, 1873; and Thompson, full specification filed August 14, 1874. In view of such bottle-stoppers as are described in the foregoing patents, the defendant, by expert testimony, seeks to divide bottle-stoppers which have yokes and levers into classes, — one class having the lever between the bottle neck and the yoke, and thus drawing the yoke down, to which class the Do Quillfeldt is assigned; another class having the lever between the stopper and the
The defendant’s expert is of opinion that the defendant’s stopper does not contain the De Quillfeldt invention because it has projections, and the ends of the lever are not pivoted to the bottle neck, and the yoke is pivoted to the neck wire, and the yoke is not pivoted to the stopper, and the lever is not pivoted to the lower ends of the yoke. These views would have force if the plaintiffs’ re-issue were required by the prior state of the art to be limited to the formal modes of construction described. But De Quillfeldt is shown to have been the first person to combine, by three pivotal connections, the four elements of the first claim of the plaintiffs’ re-issue in a combination having the mode of operation set forth in said claim. The success of his stopper was due to such combination. All prior stoppers failed of the result for want of such combination. The defendant did not make his stopper
3. The defendant-put in evidence two other English patents, — one to Henry, final specification filed October 29,1862, and one to Mennons, final specification filed October 1,1868. No witness for the defendant gives any testimony as to anything in either of these two patents, and therefore they cannot receive much attention. It is apparent, from the testimony of the plaintiffs’ expert, that they do not affect the plaintiffs’ re-issue.
4. It is contended that the defendant anticipated De Quill-feldt by making, in 1869, a stopper like Exhibit P, which he then exhibited to many persons. Only one was then made. It disappeared, and nothing more was done about it till the latter part of 1874, when one was made, modified into a structure like P2, and Eritz Hollender, the defendant in the Hollender suit, made sonm stoppers like P2. In the form of P2, Yon Hofe applied for a patent for it, January 20,1875, and a pat-_ ent for it was issued to him, No. 163,553, May 18,1875. The stopper did not operate well, and then the stopper, Exhibit No. 1, was got up by Yon Hofe, after he had seen the De Quillfeldt stopper. The reason why the stopper P, in the form it had, and in all the modified forms of it made by Yon Hofe, and in the form shown in patent No. 163,553, did not succeed as a stopper, was because of the dificulties in it which were remedied in Exhibit No. 1, and which remedies ■were first applied by De Quillfeldt in his stopper. All of the Yon Hofe stoppers, until Exhibit No. 1, had a slot in the plate of the cam instead of a pivotal connection by a pin in a hole which is not a slot, so that there was a play to the lever besides the turning motion on an axis. -In consequence of that, in closing the stopper in Exhibit P2, it would sometimes fly out, as Eritz Hollender says. He says that in Ex-
5. The only other defence insisted on in this case is tho alleged prior invention of Otto. That has been considered fully in the decision in the Hollander case.
There must be a decree for the plaintiffs on the first and ninth claims of their re-issue, and for a reference in the usual form as to profits and damages, and a perpetual injunction, with costs.
Ante, 882.