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 of its neck suitably formed to receive such stopper, of a stopper constructed substantially as described."

It was held, therefore, in Matthews v. Shoenberger, that an internal gravitating bottle stopper, consisting of a glass marble working inside the neck of the bottle, precisely after the manner of the glass plug in the Kelly bottle, and seating against a rubber ring in the neck by the upward pressure of the gas in the liquid, is not an infringement of either of the plaintiff's patents.

It seems to me the construction which Judge Blatchford has given to the plaintiff's patents is the only one consistent with their validity; for, unless limited to the exact construction of the devices they show, I do not see how it is possible to save the patents at all, in view of the prior state of the art. An internal closing stopper for bottles was by no means a new thing at the time of Albertson's earlier invention. This clearly appears from the patents in evidence, to a few of which a brief reference will be made.

Thus, Blyth's English patent of 1857 shows an internal stopper for bottles which is inserted through the mouth of the bottle, and is closed against a seat within the bottle by the upward pressure of a helical spring, which is situated beneath the lower end of a movable vertical stem, which acts. beneath the center of the closing valve; and the stopper is opened by outward pressure upon the valve.

The Zouf French patent of 1844 shows a stopper which is inserted through the mouth of the bottle, and which, when inserted, is closed tightly against a seat, which is within the

bottle, by upward pressure of a spiral spring working around an upwardly projecting stem; and the stopper is opened by pressure applied to the top of the stem. And an internal bottle stopper, having substantially the same arrangement and method of operation, is shown by the Nouvean English patent of 1858. If it be true that in the patents just referred to the valve does not close against a seat formed in the substance of the bottle itself, it is equally true that in the Christin and Kelly bottles the plug does not seat against the substance of the bottle, but against an elastic packing or detachable rubber seat enclosed in a recess within the neck of the bottle. As bearing more particularly upon the claims of the plaintiff's second patent, the McCallum English patent of 1862 is worthy of especial observation. The specification, after stating that the invention is "peculiarly suitable for aerated liquids," describes the bottle as "formed with a construction in the neck, A, presenting internally a kind of valve seat, B." This valve seat does not differ from the plaintiff's shoulder, x, and is for the identical pnrpose; for it is stated that after the bottle is filled, and the stopper drawn “into its place against the seat, B, in the neck, A, of the bottle, the internal pressure keeps the stopper securely

in its place."

The stopper is described as “a kind of valve," consisting "of a washer made of a flexible material, such as leather, or caoutchouc, and fixed on a short spindle or center in such a way, that, on being pushed into the bottle in one direction, the washer bends inwards towards or against the upper part of the center or spindle, and passes easily, whilst on being moved in the other direction the washer expands and cannot be forced or drawn through the contracted neck of the bottle." In closing the bottle the stopper is grasped and drawn into its seat by an instrument inserted into the mouth of the bottle for that purpose. The bottle is opened by pushing the stopper inwardly, and the stopper "remains in the bottle, and can be used over again repeatedly."

If it be conceded that the plaintiff's patents were not fully anticipated, it is, nevertheless, clear to my mind that the dif

ferences between his devices and those shown by the earlier patents are less marked and substantial than are the differences between the defendants' devices and those of the plaintiff.

The defendants do not use the mechanism described in the plaintiff's first patent, nor anything that is the equivalent thereof. They do not employ a spiral or any spring, nor a disk valve. Neither in form nor in mode of operation is either of their stoppers at all similar to the stopper described in that patent.

The distinguishing and indispensable features of the plaintiff's second patent are a compressible valve, capable of being forced into the bottle through the mouth, and incapable of easy passage through it in the opposite direction, and a bottle having the interior of its neck so shaped as to present a bearing surface or seat with which the valve is brought into close contact to close the bottle. These characteristics are wholly wanting in the defendants' devices. The defendants use no valve. Their bottles are closed by a simple wooden or glass plug, which easily passes through the neck of the bottle in either direction, but acts as a stopper when pressed or drawn into a rubber ring placed in the neck of the bottle after the plug is inserted in the bottle.

In my judgment the defendants' devices differ essentially from, and in point of simplicity and utility are vastly superior to, those of the plaintiff. It is true that the defendants' stopper is of sufficient length to prevent it from turning over in the bottle, and therefore it is contended infringes the third claim of the second patent. But to provide a valve with a stem of such length as to prevent it from turning over in its chamber, so that it shall always present itself right to the orifice it is to close, was certainly an old and wellknown expedient. In view of this fact, and looking to the terms of the claim, it must, I think, be restricted to the form of stopper shown by the specification. "In all instances, however, the stopper is formed as shown, and is forced into the bottle as seen in figure 2," is the language of the specification; and the language of the claim is, "making the entire v.6, no.9-56

stopper of such a length," etc. Manifestly the specified length is but a single feature of the stopper. The claim, therefore, is not to be read as embracing all manner of internal bottle stoppers having the specified length, irrespective of other distinguishable characteristics and modes of operation. Construed so broadly, the claim could not be sustained. Matthews v. Shoenberger, supra.

I am of opinion that no infringement of either of the plaintiff's patents has been shown.

Let a decree be drawn dismissing his bill, with costs.

PUTNAM and another v. HOLLENDER and another.

(Circuit Court, 8. D. New York. February 10, 1881.)

1. PLEADING-JOINT AND SEPARATE INFRINGEMENT-PROOF.

In a suit for infringement the bill alleged that the defendants had "jointly and collectively, and also separately," used and sold bottlestoppers containing the patented invention. Held, (although no joint sale or use was shown,) as the bill was framed to recover for separate infringements, and was not demurred to on that ground, and the case had gone on under that issue, that the plaintiff could maintain the suit as a suit against each defendant separately.

2. COMBINATION-TRANSPOSITION OF PARTS-INFRINGEMENT—IMPROVE

MENT IN BOTTLE-STOPPERS.

Re-issued letters patent granted to Karl Hutter, June 5, 1877, for an improvement in bottle-stoppers, claimed, inter alia: "(1) The combination, substantially as before set forth, of the compound stopper, the yoke, the lever, and the supporting device on the bottle, by means of three pivotal connections, upon which the said members can be turned relatively to each other without disconnecting either one from the other." Held, that the mere transposition of the places of the yoke and the lever did not constitute such a substantial difference in respect to the invention, or the mode of operating the combination, as would avoid infringement.

3. LICENSE-CONSTRUCTION.

A patentee authorized a licensee to use and manufacture his invention "for his own proper business," to a specified amount per annum. Held, in the absence of affirmative authority, that a sublicense was not authorized by such agreement.

4. PRIOR INVENTION-BURDEN OF PROOF.

Where prior invention is set up as a defence in a suit for infringement, the burden of proof rests upon the defendant, and every reasonable doubt should be resolved against him.

5. SAME EVIDENCE.

The invention or discovery relied upon as a defence must have been compléte, and capable of producing the result sought to be accomplished; and this must be shown by the defendant.-[ED.

Arthur v. Briesen, for plaintiffs.

George W. Yeaman, for defendants.

BLATCHFORD, C. J. 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 Quillfeldt, as inventor, January 5, 1875. The specification of the re-issue says:

"The object of this invention is to permit bottle mouths to be readily and securely closed and readily opened, without disconnecting the stopping devices from the bottle. To this end my invention consists of a certain new elastic stopple, and of certain new combinations of devices, of which the following are the principles, viz.: A compound stopper composed of a rigid annular member adapted to withstand the strains incident to closing the bottle, and an elastic disk intervening between the said rigid member and the bottle mouth so as to prevent the contact of the rigid member with the glass of the bottle, and to close the bottle mouth tightly, the disk having an upwardly projecting stem which extends through the rigid member; an elastic and flexible disk-stopper of small thickness compared with its diameter, and provided with a stem, said stem serving to connect said elastic diskstopper to a yoke or frame by which the same is attached to the bottle; a yoke or bail adapted to straddle the bottle mouth and constitute one of the devices by means of which the elastic stopper is connected with or linked to the bottle, so that said stopper remains connected with the bottle although the bottle mouth is open; a lever which is connected with said yoke or bail, and by means of which the elastic stopper can be forced downward and compressed to close the bottle mouth tightly. The lever constitutes one of the de