machine. In the operation of the machine, the card is placed against the guides. When the telephone is put in use, the platen is depressed, making an impression showing the hour dial and the zero or initial graduation, with the pointer in juxtaposition thereto. It also shows the final, or three minutes, graduation, and also the hour hand. At the close of the period of the use of the telephone the card is again replaced, and the platen again depressed, resulting in a second impression of the hour dial, and in a second impression of the pointer. The initial and the three minutes graduations are also imprinted. The hour hand is also again printed, but, as nearly all the telephone messages are less than three minutes in duration, the change in the position of the hour pointer is usually very slight. It will be seen that the impressions of the rotating graduations and pointer are made very close to the graduations of the hour dial; and so the period of use can be determined by simply counting the graduations on the hour dial occurring between the two impressions of the pointer. It can also be determined at a glance whether or not the initial period has been exceeded by noticing whether or not the two horseshoe impressions formed by the zero and three minutes graduations and the pointer overlap. If they overlap, it is evident that the telephone was in use less than the initial period, and that there are no excess minutes to be charged for. If the two horseshoe impressions are separated from each other, it will be seen at a glance that the initial period was exceeded. The amount of excess time can be determined by counting the graduations on the hour dial, either between the two impressions of the pointer, or between the first impression of the three minutes graduation and the second impression of the pointer.

The defendant urges that his machine is merely an adaptation of the time stamp of the Emerson patent, and that it involves nothing new when compared with that patent. We have already discussed the Emerson patent in our former opinion, and have stated the material elements in the time stamps which were brought before us in considering the prior art. The Emerson machine was not intended automatically to record elapsed time Upon a careful examination and study of the new machine, we are satisfied that the defendant has added new elements to the Emerson patent, and has brought his device within the range of infringement. In coming to this conclusion we have given full weight to the very elaborate, ingenious, and able argument of the learned counsel for the defendant. The Emerson patent was not an anticipation of the patents at issue in this case. His machine was not a device for automatically recording elapsed time. The defendant appears to have taken the Emerson stamp as his basis, but he has added elements to it which have made it a device for automatically recording elapsed time. He has made use of the transverse end of the pointer or arrow, which appears, as it seems to us, to be by chance in the form of a horseshoe. This he has modified and applied in such a way as to make it capable of showing at a glance a three-minutes interval of time. He has thus made two graduations out of the two ends of the horseshoe device, and made these two graduations to show at a glance whether the initial period has been exceeded. It will be noted, also, that the time in minutes within the grasp of the horseshoe, or outside of it, can be deter

mined by counting the graduations on the hour dial, which may be conveniently used for that purpose, and is evidently intended for such use. The new machine also shows guides which were not in the original Emerson patent, but which are necessary for effecting an accurate second impression and for automatically recording elapsed time. He has effected what he assumes to be a great improvement over the timometer, or the calculagraph, in that the horseshoe device shows at a glance whether or not a conversation has extended beyond the limit of initial time. The series of two graduations made by his horseshoe device seems to be an equivalent in its purpose, function, and method of performance of the semicircle of graduations of the Hamilton. patent.

Comparing the defendant's construction now brought before us with the first claim of the Hamilton patent, we are of the opinion that this device is not, in practice, different from the minutes dies of the timomeThe evident purpose of the series of two graduations which the horseshoe device presents is to enable the operator to ascertain automatically the interval of elapsed time. As such, we think it is an equivalent of the series of progressive numerals in the Hamilton patent. We come to this conclusion after giving the doctrine of equivalents the same scope that we applied in discussing the timometer in our former opinion. Comparing the device now brought before us with the first claim of the Abbott patent, we think that the new Wilson machine is an offending device within the terms of this claim. This machine is especially adapted for measuring a space of three minutes elapsed time. To do this it has two graduations, which take the place of the more numerous graduations of the timometer. But this machine, as well as the timometer, is a device for printing a record of intervals and for printing the time of day. The clockwork which drives the shaft in this machine is a "single motor for driving the dies." This machine, as well as the timometer, has a lever adapted by alternate movements to cause impressions to be made from the dies. The machine before us appears to be the equivalent of a combination found in the timometer to infringe the first claim of the Abbott patent. The defendant lays great stress on the fact that infringement of the Abbott patent by the timometer was found by the court because of the additional seconds dial having the two-part platen, whereas this seconds dial and its platen are wholly lacking in the device now brought before the court. Defendant argues from this fact that he has escaped infringement of the first claim of the Abbott patent; but the modification of the seconds elapsed time dies of the timometer, by incorporating into them features of the minutes dies of the timometer, does not in any way eliminate the principles of the inventive thought which forms the subject of this claim of the Abbott patent. It makes no difference in principle whether the seconds dies are taken as the method of printing the record of intervals or whether the minutes dies are so taken. The two sets of dies must be held to be equivalents. It does not avoid infringement to substitute one equivalent for the other, with a corresponding change of the operating lever.

It is not necessary in passing upon the matter of contempt to go into the details of infringement. We are satisfied that the new machine is not in principle different from the timometer in its relation to the first claim

of the Hamilton patent, nor in relation to the first claim of the Abbott patent; we think it is an infringement of the first claim of both patents. We are of the opinion that both machines perform the same function in substantially the same way to effect the same result. The whole testimony brought before us in the affidavits tends to persuade the court that the defendant, in producing this device, was endeavoring to avoid infringement, and at the same time to imitate as closely as possible the devices which we have passed upon in our former decision. That he did this under the advice of counsel is no defense. The attempt to see how near one can come to an infringement and escape it involves great danger, and is not looked upon with favor by courts. We are of the opinion that in making his new machine the defendant has violated the preliminary injunction in this case; and that, by offering the machine for sale and furnishing it to others to use, he has violated both the preliminary and the final injunction. We will not now pass upon the question of penalty, but leave it for a future decree. Let the decree therefore be entered:

Defendant adjudged to be in contempt of both the preliminary and the final injunction in this case.

CROWN CORK & SEAL CO. OF BALTIMORE CITY v. STANDARD STOPPER CO. et al.

(Circuit Court, S. D. New York. October 25, 1904.)

1. PATENTS-NOVELTY-SUFFICIENCY OF DESCRIPTION IN PRIOR PUBLICATION. A prior publication in a paper, patent, or otherwise, will not negative the novelty of an invention unless it describes a complete and operative invention capable of being put into practical operation, or contains such a disclosure of the invention that any omission would ordinarily be supplied by one skilled in the art.

2. SAME-INFRINGEMENT-IMPERFECT CONSTRUCTION OF INFRINGING ARTICLE. Infringement cannot be avoided by simply constructing the patented thing so imperfectly that its utility is diminished, but such a colorable variation or change is merely evidence of an attempt at evasion by narrowing the function of usefulness of the device infringed. 3. SAME-BOTTLE STOPPERS.

The Painter patents, No. 468,258, covering broadly a bottle-sealing device consisting of a flat disk of wood or similar material inclosed in a hard metal cap, preferably of tin plate, having a pendent flange provided with corrugations, and adapted to be bent into locking contact with a shoulder on the neck of the bottle, and No. 582,762, for a specific form of construction of such general invention, were not anticipated nor deprived of patentable invention or novelty by anything in the prior art. Claims 1, 2, and 3 of the first patent and 1 and 2 of the second also held infringed by the device of the Patterson patent, No. 682,995.

In Equity. Suit for infringement.

Wetmore & Jenner and Robert H. Parkinson (John C. Rose, on the brief), for complainant.

Phillip, Sawyer, Rice & Kennedy, for defendants.

TOWNSEND, Circuit Judge. Complainant, by its bill, seeks an injunction and accounting by reason of alleged infringement of its patents No. 468,258, dated February 2, 1892, and No. 582,762, dated

May 18, 1897, both granted to William Painter for improvements in bottle-sealing devices. The object sought and successfully accomplished by the patentee was to provide an inexpensive substitute for the long cork, capable of very swift application and of swift and easy removal by the ordinary user, and free from the objections of injury to liquid from use of a cork or the re-use of the ordinary bail stopper, and so perfect in its sealing qualities that it would withstand an interior pressure of 150 pounds. The means employed comprised a thin, flat disk, composed, preferably, of woody matter and gum or other similar materials, inclosed in a hard metal cap, preferably of tin plate, said cap having a pendent flange, which so encircles the periphery of said disk as to confine it against lateral expansion, said flange being provided with corrugations so as to afford circumferential resiliency, and thus be adapted to be bent by lateral pressure into conformity with an annular engaging shoulder on the neck of a bottle. The lower edge of said flange has a projected edge capable of engagement with a lever, whereby the whole cap may be removed from the bottle.

The construction, in a preferred form, of the patented cap, is shown by the following copy of Fig. 2 of patent No. 468,258:

Fig. 2.

£ a2

The claims in suit of patent No. 468,258 are as follows:

"(1) The combination, substantially as hereinbefore described, of a bottle having on its head an annular engaging shoulder, a sealing-disk, and a metallic sealing-cap which encircles the periphery of the disk and has a flange which is bent into locking contact with said shoulder, and which also has a projected edge to afford a surface with which a bottle-opener may reliably engage for detaching the cap from the bottle.

(2) The combination, with a bottle having on its head an annular lockingshoulder and below said shoulder a projecting surface, of a sealing-disk and a bard metal sealing-cap having a flange which is bent into locking contact with said annular shoulder and has a projecting lower edge for engagement by a bottle-opener lever fulcrumed on the projecting surface of the bottle below said edge.

"(3) The combination, substantially as hereinbefore described, of a bottle having a head provided with an annular engaging shoulder, a sealing-disk, and a hard metal sealing-cap having a flange which encircles the disk and is bent into locking contact with said shoulder and is corrugated in the bent portion in the line of said locking contact."

It was not contended on the argument that the patents in suit were anticipated. But it was contended that, in view of the prior art, no invention was required to construct the patented cap. The arguments in support of this contention will be considered in the order in which they were presented by defendants.

It was first argued that patent No. 468,258, hereafter called the "first patent," does not purport on its face to be a pioneer. It contains four disclaimers, which refer to (1) prior "metallic sealing caps; (2) of tinned sheet iron * flaring pendent flange, the lower edge of flange ornamentally corrugated;

*

(3) of hard metal plate

provided with a flange cut or slotted;

** (4) pendent spring-arms, which were corrugated at their inwardly-bent extreme lower ends to afford strong fingers at their points of contact with an engaging shoulder on the bottle." The patents relied on to illustrate the scope of these disclaimers and to defeat the claim of invention will be discussed in the order in which they appear in defendants' brief.

Painter patent No. 468,226, was not pressed on the argument. Although issued on the same date as the first patent in suit, the application therefor was subsequent to the application for said first patent, and for this and various other reasons it need not be discussed.

The Berthoud French patent of 1877, and the Gedge British patent of 1878, founded on the Berthoud invention, with certain additions, next discussed by the defendants, may be treated together under the head of Berthoud-Gedge. Most of the argument on both sides as to validity is necessarily directed to a discussion of the disclosures of this patent and the history of its devices. The defendants' expert fairly states the invention of Berthoud as follows:

"A cap of tin [tinned] sheet iron having its flange at right angles to its top is forced down upon a glass vessel, there being a sealing ring or disk interposed between the cap and the vessel, and the cap is then affixed to the glass vessel by bending in the flange of the cap with a rubbing or milling tool, the flange being bent in without shock or jar and far enough to hold the cap in place on the vessel."

Berthoud-Gedge further states that the cap may be removed "by inserting any pointed instrument beneath it"-one of the ways described by Painter in which his cap may be removed. It may be assumed that the edge of the flange of said cap might be sufficiently projected to permit the insertion of such pointed instrument under certain conditions. While Berthoud does not show his cap applied to the specific type of bottle described by Painter, such bottles were old in the art. And inasmuch as the removal either of the Painter or Berthoud cap by a "pointed instrument" is attended with difficulty, and Berthoud subsequently, in his additions, described the use of tearing strips therefor, defendants have shown by Livermore patent of 1866 that it was old in the art to remove caps from receptacles by means of openers which engaged the projected edge of the flange of a cap. It is therefore claimed that:

"The Berthoud contribution to the bottle-sealing art, as it appears on the face of the French patent and on the face of the British patent, is a bottle cap consisting of tinned sheet iron and containing a sealing disk, the cap being locked to a bottle having an annular locking shoulder thereon, by bending the flange of the cap beneath the shoulder, the flange being so bent in that the cap can be removed by inserting a pointed instrument beneath the flange."

And to this may be added the claim that Livermore disclosed a method of removal by a lever such as is shown by Painter. Glass jars containing soup, closed by the Berthoud cap, provided with a tearing tongue, were in use and on sale in this country for several years prior to 1890. The reply to the claim as to the "projected edge" is as follows: The Berthoud-Gedge patents recite that "the closing of the metal on the glass is somewhat dangerous," and propose to remedy this difficulty by the application of gradually applied pressure through