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a rubbing tool, so that by a process of spinning or rubbing the edge of the metal might be bent down gradually, or, as the patentee says, "without any shock.” This operation would naturally also result in a close-fitting flange edge. In the original Berthoud patent no means of removal was suggested. But in its additions and in Gedge are described the tearing strip or tongue, already referred to, projecting beyond the circumference of the disk, which, being raised, “may be grasped with the handle of a knife, a key, the end of a corkscrew, or any article which will permit the fingers to get a good grip of it. Then, without any great force, the tin may be torn from part or the whole of the surface of the lid or cover so as to produce a section dividing it."

The necessity of this opening appliance and the impracticability of removing the cap with a pointed instrument is emphasized by Gedge, who says, referring to the projected lip, “For without it there would be great difficulty, and even danger, in opening a glass bottle," etc. Berthoud says:

"This arrangement for opening the seal is of as great importance as the seal itself, for, without it it was difficult, and even dangerous, to open a flask which does not have the large base of a tin. The tool used might slip, and thereby wound the person attempting to open the flask.”

This cap, therefore, was confessedly by the statements of the patentees capable of application only by a gradual operation, such as that of spinning, and incapable of practical or quick or safe removal by a "pointed instrument.” Nor could it be removed by the Livermore opener without material modifications, because the upward movement of its engaging lip would break the Berthoud-Gedge bead, as it would the Painter shoulder. And it is at least doubtful, in view of the conflicting testimony of the experts as to their experiments, whether the Livermore opener, even with the modifications made by defendants, could be practically used with the Berthoud or Painter cap. It would seem, therefore, to be established by the foregoing facts, in connection with the Berthoud drawings, that its spun, uncorrugated, close-fitting flange did not present any such projected edge as that of the first or second claims of Painter, or any edge which could be readily engaged with any opening lever of the prior art. But even if it could be so removed by a pointed instrument or engaged by a lever, the result is totally different in its effect upon the two caps. Painter's cap is not necessarily injured by removal, because only the folds of its corrugations are spread apart, and it may be replaced for temporary use, Berthoud-Gedge, being without corrugations, and therefore having been spun on and fastened necessarily by consequent molecular change in the metal, could ordinarily be removed only by a process of destruction similar to that described by the patentee in the use of his tearing device. There is no evidence that said cap was ever actually removed by an opener engaging the edge of the flange.

The foregoing statement is made upon reasoning from the proved facts, and without reference to the testimony of experts, on the one side, to the effect that the removal of the caps was quickly effected and without injury by the Livermore opener, and of one expert on the other side that in his strenuous efforts, using his "best intelligence to find the most favorable point of attack on the cap by the so-called Liverniore

opener (the modified form introduced by defendants),

after exerting my utmost strength several times, I failed to produce any useful effect whatever in removing the cap, but did produce a contusion of my hand”; and of another expert that he exerted himself to his apparent utmost without budging the cap, and that he contused his hand also. Berthoud had neither the corrugated flange of Painter nor its equivalent. And herein is found the crucial test whereby BerthoudGedge is differentiated from Painter. Berthoud, recognizing "that the operation of setting (resistant metal] upon glass is somewhat hazardous,” conceived the idea of subjecting a plain cap "with a right-angle bend" to the action of "a rubbing tool,

and to bend down the edge of the metal without any shock," and by means of said gradual rotating pressure effecting a molecular change "the setting of the metal around the neck of the bottle is produced.” Painter conceived the idea of providing corrugations in his flange so as to afford "the circumferential resiliency, which is a characteristic feature.” This resiliency permitted instantaneous outward lateral circumferential pressure, because the outer folds of the corrugations not only acted as a cushion to prevent shock, but served to transmit such pressure to the inner folds of the corrugations, and effect their hermetical closure with the neck of the bottle. Berthoud constructed a plain metal capsule adapted to be gradually spun onto the bottle neck. Painter constructed a cushioned metal capsule adapted to be instantaneously forced against the bottle neck. Thus the two devices were radically different in conception, construction, function, and result. This and the other fundamental differences previously discussed, in the whole plan of the two structures, indicates the reason why Berthoud and Gedge later suggested the tearing strip as the only practicable means for removal, and why their cap was finally abandoned, and why neither they nor any other inventor or skilled mechanic during the 13 years which elapsed between the date of said patents and the Painter application ever conceived of the possibility of adapting the Berthoud-Gedge construction, or actually modified it, so as to embody the theory of the Painter invention.

The next alleged anticipation discussed by defendants is Whittlesey patent No. 38,617, dated May 19, 1863, for “a cap for fruit jars.” The specification states that:

"The nature of this improvement consists in striking up a flat piece of metal into a cap having a flat top, slightly tapering sides, and corrugated flange edge, the object of which is to produce a cheaper, more durable, useful, and ornamental article for sealing cans, jars, etc., air-tight."

The "corrugated flange edge” of this cap, if sufficiently extended, might be bent in so as to grip a shoulder of a bottle neck, and it is claimed that such bending could have been effected by the Berthoud spinning machine. There is no proof of any prior use by Whittlesey in any way like that of the patent in suit, and no statement in the specification of any proposed mode of application of said edge. Whether the corrugations were intended to afford a projected edge to facilitate removal, or to be bent in, as above suggested, or were merely the element specified, which made such a top "a more ornamental article,” is not indicated in the patent. The construction specified and claimed of “slightly tapering sides,” shown in the drawing as flaring in a downward direction, would seem to indicate that the sloping sides of the cap were to be pressed down against the side of the cap or jar until a tight fit was effected. Whittlesey shows no sealing disk, no shoulder, no engagement.

Counsel for defendants, in his argument in support of noninfringement, referring to defendants' modified Whittlesey cap, admits “that in applying such a cap as this one to a bottle

there is nothing but plain metal opposite the locking shoulder on the line of its greatest circumference, which is obviously the line where the greatest pressure is brought to bear by the applying tool," and "that the cap could not be forced down onto such a bottle far enough to compress the sealing disk, if at all, without absolutely stretching the metal, which is precisely what the patentee is endeavoring to avoid, and what his invention was devised to prevent.” If Whittlesey disclosed a construction either capable of modification, without the exercise of invention, so as to accomplish the result of Painter, or one which could have been combined by a skillful mechanic with Berthoud-Gedge so as to produce the Painter cap, the question arises why was it subjected to the obscurity of a paper patent for nearly 30 years, when the whole commercial world of bottlers were calling for some substitute for the ancient long cork and bail stopper? It is thought that by reason of the imperfect disclosures of this brief and indefinite patent and its history of obscurity it falls within the general rule that a prior publication will not negative the novelty of an invention unless it describes “a complete and operative invention capable of being put into practical operation” (Sey. mour v. Osborne, 11 Wall. 516, 555, 20 L. Ed. 33), or contains such a disclosure of the invention that any omission would ordinarily be supplied by one skilled in the art (Chase v. Fillebrown (C. C.] 58 Fed. 374; Downton v. Yeager Milling Co., 108 U. S. 466, 3 Sup. Ct. 10, 27 L. Ed. 789).

In Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658, the Supreme Court says:

“Their device evidently approached very near the idea of an equalizer ; but this idea did not apparently dawn upon them, nor was there anything in their patent which would have suggested it to a mechanic of ordinary intelligence, unless he were examining it for that purpose. It is not sufficient, to constitute an anticipation, that the device relied upon might, by modification, be made to accomplish the functions performed by the patent in question, if it were not designed by its maker, nor adapted, nor actually used, for the performance of such functions."

The situation herein is aptly stated in Robinson on Patents, § 335, as follows:

“So when the inventor of the patented invention has included in the art or instrument some act or part without perceiving its significance, and thus, in patenting it, fails to specifically describe such part or act, although, if his invention had been practically employed, such act or part might have become known to the public, his patent does not place it in their reach."

See discussion by Judge Putnam in Chase v. Fillebrown (C. C.) 58 Fed. 374, 377, 378.

Butler patent, No. 128,849, of 1872, shows a metal cap stamped down in the center so as to create an “annular depression around its rim


on the under side," and a flange with slitted edges. The cover is secured to the jar by means of melted wax, and by “simply turning in the lower slitted edge of the flange E,

gives a neat finish to the jar or bottle, but all danger of the packing wasting out or of the top coming off by accident is entirely and successfully avoided." It is claimed by complainant that the drawings of the Norton patent, No. 98,474, referred to by Butler, show that the edge of the flange is to be turned in under the wax to prevent it from running out and to house or protect the rim of the flange. But, irrespective of this question, a cap constructed to be sealed by hot wax and removed by melting the wax, with the edge of its flange turned in so as not to project and be knocked off, and which has no corrugations and could not use the Painter corrugations because the wax would run out and between them, is so foreign to the Painter construction that it will not be further discussed

The Drummond patent of 1861, for a paint can, Bellerjean patent of 1868, next discussed in defendants' brief, were not pressed on the argument, and need not be here discussed.

Taylor patert of 1885 is for a self-sealing fruit jar of the ordinary well-known type, except that its circular stopper is fastened down on a shoulder inside the neck of the jar by spring hooks extending downwardly and laterally pressed so as to spring into a recess below the neck of the jar

The hooks are not bent into conformity with the neck or shoulder; there is no cushioning operation; the bottle is closed and opened by springing the side arms in and out by virtue of their elasticity.

The Goulding patent, next reached in defendants' brief, was not pressed on the argument.

Thompson British patent of 1885 is discussed in defendants' brief and upon the argument to show that it was old in the art to provide "a construction in which a projected edge on a cap is used for the purpose of detaching the cap from the receptacle, the edge of the cap being engaged by a suitable opener, the cap being pried or wrenched from the bottle thereby." Thompson is for a metal box with a groove near its top and a conical lid provided with a rim which may be pressed into the groove, and which, the patentee says, may be pried off by a lever. It is very doubtful whether this removal could be thus effected. But if the sole contention of defendants concerning it in this connection, quoted above, be admitted, it is so remote from the Painter and BerthoudGedge problem as not to require discussion.

Defendants' cap is manufactured under Patterson patent, No. 682,995, issued in 1901. Its construction is shown by the following copy of Fig. 5 of the drawings of said patent:



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The cap, 3, is provided with a downwardly extending flange, 4, which is so slotted, as shown in the drawing, as to provide pendent extensions, which are bent into horizontal folds, shown at 7,"preferably so arranged as to be forced into engagement with the shoulder on the container by bending the leg to which it is connected inward. The fastening device may be readily unlocked by pressing upwardly and outwardly against the fingerhold” at 11.

In support of the defense of noninfringement of claims 1 and 2 of the first patent it is argued as follows:

"(1) The defendants' cap does not have the projected edge' feature of these claims, as this projected edge' must be defined in view of the language and statements in the specification of the patent.

"(2) Any interpretation of the term projected edge' which would cause it to cover the construction of the defendants' cap causes it also to cover numerous constructions of the prior art, as well as a construction specifically stated by the patentee not to have the projected edge.'

"(3) The defendants' cap does not have the 'flange bent into locking contact' with the bottle shoulder called for by these claims."

That defendants' flange has a "projected edge to afford a surface with which a bottle opener may reliably engage for detaching the cap from the bottle” (claim 1), or "a projecting lower edge for engagement by a bottle opener lever fulcrumed on the projecting surface of the bottle below said edge” (claim 2), is shown by the drawings of defendants' patent, by an inspection of their caps, and by the undisputed fact that defendants' caps are ordinarily removed by complainant's openers.

The previous discussion disposes of the second contention as to the prior art.

The contention as to "a construction specifically stated by the patentee not to have the projected edge” is founded upon the following language in the specification:

“In some instances it is desirable that the edge of the flange be so thoroughly housed within the recess below the engaging shoulder as to practically eliminate the projecting edge feature, and to thereby secure specially high resisting power—as, for instance, with some kinds of malt liquors bottled for shipment to tropical countries—and then either the loops described in my said other application may be relied upon for opening purposes, or the central perforation for receiving a corkscrew, and it will be obvious that, while all of the corrugated caps shown will afford a well-defined, stiff, and strong projecting edge, either of them, on being well compressed on the line of the middle of the recess in the bottle head, will have the entire lower portion of the flange made substantially flush with and merging with the surface of the bottle head below the recess."

Defendants have caused drawings to be made of this Painter construction and of their construction, from which it appears that the effective projection of the lower edge of their fange extensions is less than that of Painter. Hence it is argued that they do not have Painter's projected edge, but one "so housed as to practically eliminate the projecting edge feature.” How far the rights. of the patentee should be affected, if at all, by the foregoing statement, is a doubtful question. This statement cannot work an estoppel against the rights of the patentee in this case, for this suggested construction is not involved in the claims in suit. It would seem that it should not be construed as such an admission as would deprive him of the right to proceed against the

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