R 307, it was decided that a party who held stock of the
bankrupt, with a power of sale, &s collateral security for &. .certain debt which was overdue at the commencemen'G of the proceedings in ba,nkruptcy, if he exercised his power of sale the bankruptcy, had a right to retain the surplus by way .of set·oft on another claim which he had against the bankrupt. Is not the equity of Ira F. Brainard as clear 8S that of the .creditor In re Dow 1 It seems to me tha,t it is clearer, and that to deny him the right of set·off would be sheer injustice. And now. November 23, 1880, the exceptions filed by Ira. F. Brainard to the register's report are sustained; and it is adjudged and decreed that the set-off claimed by said Brainard be allowed.
SHONEBEBGJllB and another.
(Oircuit Oourt, 8. D. NlM York. - - , 18BO.) 1. RE·I88UE No. 2,386, granted October 80,1866, for ali Improvement In bottle stoppers, held, not infringed.. 2. PATENT No. 44,684, granted October 11,1[,64, for an iinprovedmethod of stopping bottles, held, not irifringea.
CLAIM-CONSTRUCTloN.-Every claim of a patent is to be construed as though it in terms in referred to the descriptive part of the ipecitication.
4. 8AME.....:SUIE.-A claim for inserting a stopper through the mouth of a bottle, and then passing it upwards till it is closed tight against a seat inside, must be limited to the mechanism described, having the mode of operation 6. SAME-SAME.-A claim to a function of mechanism, aside from the structure of such mechanism, is not valid.
inventor, August 26, 1862. This patent ha.sexpired .. The specification says: "This invention in a stopper ,which ,always remains in the bottle, and which readily permit.s the introduction of any. fluid.into the bottle, and at the same time effectually prevents any discharge of it except when desired, and which is particularly adapted to bottles containing soda-water, wines, and all fluids having a generatil1g fixed air, as the greater the pressure from such cause the (lloser and tighter is the stopper. An important feature of the inventiell, which distinguishes it from all previouslyapplied stoppel's whioh remain in the bottle, is tha't it is inserted into the bottle through the neck without ' requiring the use'ofaseparate or larger opening, or detachable cap, to permit its introduction. - · - The stopper represented · · · consists of 8 small metallic or other stem, A, upon the lower end of which is fixed 8 rigid button or disk, B, which is made of such a size as just to pass through the smallest part of the mouth or neck of the bottle. Close above the button or disk is secured to the stem, A, a smaller rigid ring or disk, C. Between these two disks is placed and held fast a disk or diaphragm of India rubber, felt, leather, or cloth, D, or any yielding substance, which should be somewhat larger in its external diameter than the disk, B,-say generally of a diameter about as large again, and larger than the lower part of the interior of the neck of the bOttle. To ai stop or shoulder on the upper part of the stem, A, which is long enough to project above the mouth of the bottle or vessel when the valve is in contact with its seat, there is attached or applied a helical wire spring, E, which covers the stem, A, for some little distance, and which need only be stiff enough to hold up firmly the stem, A, and cause the rubber or other diaphragm, D, to fit closely against the inside neck of the bottle. " '1'he specification then describes two ways of supporting the spring at its bottom. One is to enlarge the mouth ot neck of the bottle from the bottom of the spring upward 80 as to form an edge or shoulder sufficient to support the spriug. The other is not to enlarge the neck. but to olasp over the top
·of the neok two or three metallic strips, whiohextend down within the neck as far as the spring is to reach, an,d have their bottoms turned over the lower coil of the spring and thus give it a sufficient support. The specification proceeds: "The stopper is plaoed in the bottle by simply inserting it in the neck and pressing the spring, E, until or flexible disk or diaphragm, D, has passed below the narrowest part or place,a, of the neck. As the ring or disk C is considerably smaller than the disk 13, the flexible disk or diaphragm D will fold up and around C as the stem, A, is passed down through the neck, and the stopper will thus easily P8!ss :into the. bottle. But, when once the stopper has been so placed in the bottle, as the disk 13 is of nearly the size of. the opening in the neck, any effort of the spring, E, or of any kind, to draw or push up the standard, A, presses the flexible disk D between the bottle and the bottom,B, and effectually prevents its ooming out; aud the greater the pressure from within against the bottom of the stopper, the closer will the contaot be of the parts 13 and D against the sides of bottle. When it is desired to open the bottle to disoharge its oontents, a bent instrument, suoh as is shown in Fig. 2, or anyone fitted to accomplish the same purpose, pressing down the stopper, may be made use of." The first two claims qf the patent are as follows : .. Fir8t, a stopper whioh is inserted thropgh the mouth of the bottle, or other vessel, and which, when inserted, is closed perfectly tight against a seat found within the bottle itself by pressure in an upward direction; second, a prolongation of such stopper by means of a central stem, rod, or other extension of the stopper in an outward direction, beyond the seat of the valve, for the purpose of affording facility for opening the stopper, or that of receiving the upward pressure of a spring, or other means of drawing the valve to its seat, substantially as herein specified." The stopper and bottle used by the defendants is that shown in "Codd No.2." It is not proved that they used any other. In the defendants' arrangement, the stopper is a sphere of glass in a. receptacle at the base of the neck of the bottle,
which receptacle communicates with the body of the bottle below, by an orifice which is to small to allow the sphere to pass down. The mouth of the bottle above the sphere is too small to allow the sphere to pass out above. The sphere is loose, and there is no spring. In the inside of the mouth is an annular groove, in which a ring of India rubber is inserted, with which the sphere, whenit is to act as a stopper, comes in contact, and against which, as a seat, it is pressed to make a tight joint by the upward action of the gas in the liquid below. The receptacle referred to is of greater diameter than the neck above it, and of less diameter than the bottle below it. The bottle is opened by inserting the finger or some pushing instrument in themouth, and pressing the sphere downward, causing it to leave its seat, and allowing the liquid to be poured out. The sphere, when the bottle is emptied, rests on the bottom of the receptacle referred tOt over the orifice which leads into the body of the bottle. It is alleged that the first and second claims of this patent are infringed by Codd No.9. As the sphere in the bottle cannot pass out through the mouth, and as it is not inserted through the mouth of the finished bottle, it is put in before the bottle is finished. The bottle is made with the receptacle and the neck, and then the sphere is put in through the neck, and then a ring of melted glass is put on the outer end of the neck to form the finished mouth. The first claim of the re-issue does not contain the words "substantially as specified," but it must be construed as if those words were in it. Every claim of a patent has reference to the descriptive part of the specification. In the plaintiff's bottle, the stopper can pass in through the smallest part of the mouth of the finished bottle. This is dwelt on in the specification as "an important feature of the invention," and is made an integral part of the first claim. This feature does not exist in Codd No.2. The stopper in that cannot pass in through the mouth of the finished bottle. The first claim is not a claim to any mechanism; but, if not a claim to a function, is a claim to a mode of operation. It amounts to a claim to inserting a stopper through the mouth of a bottle, and then pressing it upwards
IfATTBEWS 'V. SHONEBEBGEB.
till it is closed tight against a: seat inside.·' It seems to be intended to cover every form of stopper and' any form of mouth, and any means of pressure, and ally' arrangement of seat. As a claim thus broad it cannot be sustained. It must beJimited to the mechanism described, having the mode of operation described. The stopper, to infringe, must be inserted through the mouth of the finished bottle substantially as the plaintiff's is, and the pressure upward must be made by mechanism and not by the gas in the liquid. The first claim is not infringed by Codd No.2. As to the second claim the specification says: "r am aware that an internal flap, valve, or door, acted upon by a spring float or counterweight, has been used to close the orifice of vessels. as an ink-holder or oil vessel, to keep out dust, etc., but intended to give way on a very slight pressure. Such arrangement, howevel', could not make a stopper which would "be air-tight." This statement shows that it was not new to .press from without an internal valve closing orifice of a vessel, such closing taking place by the action of a spring, and such pressure being made against the outer face of the valve to open the orifice. This being so, the second claim of the re-issue must be limited to substantially such a form of stopper as the specification shows, with substantially such a prolongation or extension in an outward direction, if, indeed, the claim can be made at all, in respect to the facility afforded for opening the stopper, in view of the admitted prior arrangement. Under this construction of the second claim it is not infringed by Codd No.2. The second patent sued on is No. 44,684, granted October 11, 1864, to J. N. McIntire, on the invention of Albert Albertson, for an improved method of stopping bottles. The specification says: "Previous to my invention several methods of stopping bottles have been suggested and patented, all having for a. main object to dispense with the employment of ordinary corks, (which have to be renewed at each filling of the bottles. and are expensive,) and avoid the labor involved in the use of them, especially in bottling gaseous liquids, where the cork
has to be tied or .otherwise secured in the mouth the bottle. Among the inventions suggested heretofore, having for their object the great desideratum of dispensing with the expensive and laborious system of corks and fastenings, the best method to my knowledge is that shown and described in letters patent granted to me on the twenty-sixth day of August, 1862. But experience and thorough practical tests have shown that in the method patented to me there are serious objections when, put into general use; as, for instance, the liability of the mechanism to clog up, the necessity of an instrument for the purpose of readily opening the mouth of the bottle to empty it of its contents, and the liability of the necks of the bottles, from their necessarily weak form, to break during transportation or handling. These objections, and others, I propose to effectually overcome by my present invention, which has for a further object to produce a more economical, durable, and desirable method of stopping bottles than any heretofore known; and, to these ends my invention consists in the employment of a stopper which may be inserted through the neck of the bottle, and so constructed that it can be brought into close contact with a suitable bearing surface or seat on the interior or neck of the bottle to close it, and be depressed or pushed down into the bottle to open it, as will be hereinafter more fully explained. And my invention consists further in so constructing the stopper and forming the seat or bearing surface in the neck of the bottle, that, while the stopper may be readily forced into the bottle, any tendency to force it out will only tighten the joint between the stopper and the seat in the bottle neck, as will be presently more fully explained. And my invention further consists in making the entire stopper of a length exceeding the diameter of the bottle in which it is to be used, so that the stopper, while resting in the body of the bottle, cannot turn round, but must always present itself right end foremost to the mouth of the bottle, as will be more fully described hereinafter. - · · "Figure 1 is a vertical or longitudinal section of a bottle, with the stopper represented in the position in which it closes or stops the mouth of the bottle. Figure 2 is an elevation
of the same, (with the lower portion of the bottle broken out,) showing the position o( the, stopper after openiug or ping the bottle to empty it. · · A is the bottle, (of any shape or design,) on the interior of the neck of which I. propose to form a shoulder, as seen at x. The stopper is fprmed of a stem or rod, b, having a. suitable knob portion, B, having secured (or formed) on it a. gutta percha or other elastic or yielding valve or cork, c. I have represented the stem, b, as made of metal, and with a thimble or .cover, e, of soft material, such as gutta percha, at its lower end, the object of which is to avoid any possibility of injuring the bot. tle by the sudden contact with the glass of the hard stem, when the latter is forced or drops down into the bottle in ·opening.' The valve portion, c, I have shown secured to the stem, b, by means of a band or collar, d, and an annular depression in. the stem, b, into which the yielding stock of c isforced and held by the encircling collar, d J but, in lieu of this mode of construction, the entire stopper may be formed, if found practicable and expedient, of rubber; the stem portion 'hard,' with its lower end 'soft,' and the conical valve portion, c, of the proper flexibility. The position of the valve portion, c, on the stem, b, is such as to allow the knob or upper end of the stopper to protrude a short distance' beyond the mouth of the bottle when the valve, c, is in its seatthat is, when the bottle is closed-in order that the stopper may be readily forced down into the bottle by pressure or a blow with the hand, to open the bottle. The entire length of the stopper (its stem) is such that, when resting in the empty bottle, as shown at figure 2, it cannot turn over and get wrong end towards the mouth of the bottle. At figure 2 I have shown in dotted lines position of the projecting end of stopper before the Dottle is unclosed. I prefer to make the valve, c, as shown, conical, with upper end hollow, and provide the interior of the neck with a shoulder, x; for in this form of valve and seat the stopper is readily forced down through the neck, but, in being forced up against its seat or shoulder, the valve, c, will be bulged or upset, and cannot be forced out, which is a desideratum where the contents of the v.4,no.7-41
bottle embrace gas or fixed air,--:"as, for instance, when soda water is contained,-but other forms of valve may be used iqithout destroying the advantages of my invention. The valve, e, and neck of the bottle should, however, be so shaped, even when the shoulder, x, is employed, that the former will be compressed in the taper portion of the neck before it comes against the shoulder, in order to create friction sufficient to ' prevent the falling of the stopper when still liquors are containedin the bottle; as, for instance, a valve slightly conical on the upper end, and fitting into the neck of the bottle, shaped correspondingly, and without any shoulder. The operation of my new stopper for bottles, etc., may be thus explained: , ' "1 may remark first, however, that the manipulation, in closing 'a bottle with my invention, is different somewhat when different liquors are to be bottled; that is, those which Me bottled under pressure, such as soda-water, and those which are still liquors, or without gas or pressure. In all instances, however, the stopper is formed as shown, and is forced into the bottle as seen at figure 2. To bottle sodawater and other gaseous liquids, under pressure, I take the bottle, thus provided with its stopper, and place it in the filling machine, in which the given quantity of water and gas is to the bottle, the stopper remaining, as seen at figure 2. 1 then invert the bottle while it is yet attached to the supply tube, which must for this purpose be flexible and have its cock arranged so as to admit of the bottle, while attached to the tube, being thus turned over, when the stopper falls into the neck of the bottle, the valve, e, resting' in its seat, and in this position 1 disconnect the bottle from the filling machine, when the pressure within the bottle retains the valve, e, against its seat and keeps the bottle effectually closed. When it is desired to empty the bottle a slight blow or pressure on top of the knob, b, will cause the stopper to descend to the bottom of the bottle, as seen at figure 2, and the liquid is poured out. The stopper being of a much greater specific gravity than the liquid, and being so long, will not impede the flow of the liquid from the bottle if it is gradually poured
MATTHEWS V. BHONEBEB,GEB.
out. In bottling still liquids, such as cider, porter, etc., which make more or less gas after being closed up, 1 take .the bottle provided with its stopper, as before mentioned, and pour in the liquor in the usual manner; then, quickly inverting the bottle, cause the valve, c, to drop into its seat partially, and, taking hold of the protruding end or knob, b, I pull the valve, c, tight into its seat, when the mouth of the bottle will be effectually closed, and the compression of the valve, c, of elastic material, in the tapering portion of the neck, will insure the retention of the stopper; then the bot. tIe is turned up again. The mode of unclosing is the same in all cases. · · · "Wishing to be understood as not limiting my claims of invention to any particular materials or precise forms of the parts so long as they embody the characteristic features of form, and the mode of operation involved in my invention, what I claim as new and desire to secure by letters patent is-Firstly, the employment in combination with a bottle, having the interior of its neck suitably formed to receive it, of a stopper constructed to operate in and unclosing the bottle, substantially as described; secondly, I claim so constructing the valve, c, and the mouth of the bottle, that the former may be readily forced through the latter in one direction, and incapable of easy passage tlirough it in the opposite direction, as herein before described, for the purpose set forth; thirdly, I claim making the entire stopper of such a length that it cannot tum over in the body of the bottle, as and forthe purpose set forth." It is important to see what is the proper construction of the first claim of this patent. The specification describes the, stopper as having a valve on it which is to be elastic or yield.. ing. It is indispensable that this valve shall be The stopper with the valve on it is described as a thing from the bearing surface or seat on the interior of the neck of the bottle with which the valve comes in contact to close the bottle. By the terms of the first claim the stopper is to be "constructed to operate in closing and unclosing the bottle substantially as
· I'lilDERAL· REPORTED.
des6ribed." The claim is to mechanism, to a phystcal structure;"t6 the combination of a bottle which has a neck, and lias: the interior of its neck suitably formed to receive the stopper, with Ii. stopper constructed as stated ill the claim. This means a stopper constructed as described, and which, by reason of its construction, operates as described, in connection with the neck of the bottle, in closing and unclosing the bottle. The claim is not to the employment in a bottle of a given mode of operation, resulting from any structure of -stopper. Such a claim would not be a claim to a process; it would be a claim to a function of mechanism aside from the structure of such mechanism. It would not be a valid claim. The proper construction of the claim is that it is a claim to the employment, in combination with a bottle having the interior oIits neck suitably formed to receive such stopper, of a stopper constructed substantially as described. Of course, fI, stopper constructed as described will, in combination with a bottle so arranged, operate in a definite way,-in the way described in closing and unclosing the bottle. The claim, then, is, in effect, one to the structure of the stopper, so far as its parts are brought into use in the closing and unclosing of the bottle. . In Codd No.2 the stopper is a stopper ofa different structure from the plaintiff's stopper, and it does not have the features of construction or operation which the specification of No. 44,684 states to be, or which are, the characteristic features of the plaintiff's stopper, so far as those features are not also characteristic of the stopper shown in the Albertson patent of August 26, 1862. In Codd No.2 the stopper cannot be inserted through the neck of the bottle, and is not of a length exceeding the diameter of the bottle, or receptacle in which it is placed; although it can be brought in close contact with a suitable bearing surface or seat on the interior of the neck of the bottle to close it, and be depressed or pushed down into the bottle to open it, and although any tendency to force it out only tightens the joint between the stopper and the seat. These features all of them existed in the patent of August 26, 1862, in reference to the stopper there
l'ETERSON V. 'rH:E ()HANDOS.
, : :. ·1 , " ,
or rod, no knob projecting beyond the mouth of the bottle when the sphere is at its q).,oaing place, no elastio yielding or iblevalve on the stopper. It is true that the stopper in Codd No.2 is of agreaterspecifl.\l g!avity than the liquid, so that it will fall in,to the seat by gravity when the bottle is inverted, and then be held there by the, pressure of gas in the liquid. But this is not enough ta make an infringement of the first claim. The construction 'of ihestopper in Codd. No, 2 80 essential,ly different in particulars above pointedout from that of the plaintiff's stopper, so far as such construction is involved in the first claim, that itoannot be held to infringe that claim. The second claim is not infringed because in Codd No.2 there is no valve, C, on the stem, and no valve capable of being forced through the mouth of the bottle irom without it. The third claim is not in question. i· The bill is dismissed. with costs.
in Codd No.
THECHANDOS AND MASTER.
(.District Oo:urt, .D. Orqjop,. November 9, 1880.)
LINE.-The primary purpose of a crane line is to the backstays, and in blustery weather it is very apt to chafe and wear out where it is fastened to'thestays; and, therefore, it ought not to be used as a foot-rope without caution,' and the aid of the stays.
weather being wet and the night d:ll,k, and the wind strong, the libellant was ordered to go aloft and castoff the stop on the foretop-gallant halliards, which he did by going up the rigging and out on the crane line to the space between the topmast and topgallant stay, and there untying the stop with both hands while he sat upon the crane line, without any other hold or security, and, just as the stop was cast off, the line parted near the top-gallant stay,and the libellant was precipitated'to the deck and seriously injured. Held, that the injury was caused by the negligence of the libellant In going on the crane line without an opportunity of examining its. condition, and without holding to the stays by his arms or legs, or both, while casting off the stop; and that if, by reason of the negligence or misconduct of .the mate, the crane line was insufticient,stiIl the libellant could not recover damages for the injury, because even then his own negligence substantially contributed to the result.