5 66 Griffiths v. The Birmingham Stopper and Cycle Components Company. "We do not limit the application of our invention to any particular form or pattern of stopper, but adapt the same with such modifications as may be necessary to the construction of stoppers of varying designs to suit the "particular receptacles for which they are required. 66 "Having now particularly described and ascertained the nature of our said "invention, and in what manner the same is to be performed, we are aware "that lever stoppers have been constructed in two telescoping parts which are "drawn together by a pivoted lever and in which the joint is made by a washer "bulged out when the telescopic parts are drawn together, and we do not claim 10" such construction generally, but we declare that what we claim is :-1. An "improved stopper for jars and like receptacles consisting of an upper part "having a body such as A with a pressure plate C fitted thereto, and a lower "part such as B having lugs or ears B' slotted for the reception of the lever D, "substantially as and for the purposes herein before described and as illustrated 15" in the accompanying drawing. 2. In stoppers for jars and like receptacles, "the combination of an upper part consisting of a flanged ring or body such as "A having a top plate or cap A; with a pressure plate such as C, the body A "having indents or projections as A3, substantially as and for the purposes "herein before described and as illustrated in the accompanying drawings. 66 66 Griffiths v. The Birmingham Stopper and Cycle Components Company. "3. In stoppers for jars and like receptacles, the combination of a base or lower part such as B having ears or lugs as B', with a lever such as D, the ears or lugs having slots or apertures to admit the head or cross piece of the lever, "substantially as and for the purposes herein before described and as illustrated "in the accompanying drawings.' On the 4th of February 1898, the Patentees commenced an action for infringement of the Patent against The Birmingham Stopper and Cycle Components Company, claiming the usual relief. 5 The Plaintiffs, by their Statement of Claim, alleged that they were the Patentees and registered legal owners of the Patent, and that the Defendants 10 had infringed the same. The Particulars of Breaches alleged that the Defendants had infringed the Patent by making, selling, and offering for sale stoppers for jars and other receptacles constructed in accordance with the invention described in the Complete Specification of the Patent, and claimed in the third claiming clause thereof, and alleged a particular sale. 15 The Defendants, by their Defence, denied infringement, and alleged (inter alia) that the Plaintiffs' invention was not new, and that the Plaintiffs' Complete Specification did not distinguish what parts of the alleged invention was new and what old. The Particulars of Objections alleged (1) that the Complete Specification did not distinguish what parts of the alleged invention were new 20 and what parts thereof were old; (2) that the alleged invention was not new at the date of the Patent; (3) that the alleged invention was published within this realm prior to the date of the Patent by the filing at the Patent Office of the following Specifications:-The Specification of N. Thompson, described as A.D. 1865, 4th January, No. 27, for the invention of "Improvements in stoppers 25 "for bottles, jars, vessels, and tubes, also for ordnance and firearms "the Defendants relied upon the whole of this Specification; (4) that the Plaintiffs' alleged invention was published within this realm prior to the date of the Patent by the manufacture and sale of stoppers made in accordance with the Patent mentioned in paragraph 3 thereof, which were similar to the stoppers 30 claimed in the Plaintiffs' Complete Specification, between the years 1865 and 1894 by The Patent Stopper Box and Stamp Company, Icknield Street, Birmingham. 66 66 Thompson's Specification, so far as material for this report, was as follows:"This invention has for its object improvements in stoppers for bottles, jars, 35 "vessels, and tubes, also for ordnance and firearms, and consists in constructing a stopper of a ring of a soft yielding elastic substance placed between two "discs or parts, an upper and a lower one, to one of which is hinged or jointed a lever, which when turned on its hinge or axis is caused to act on the other "part in such manner as to move the two parts towards each other. When the 40 "discs or parts are drawn towards each other by turning the lever they compress "the elastic material between them, and cause it to bulge or protrude outwards "all around the discs or parts, and the lever is so formed as to retain the parts "from again separating until the lever is turned to allow them to do so. "In the drawings hereunto annexed I have shewn examples of stoppers 45 "constructed as above described; but I would have it understood that I do not "confine myself to constructing the stoppers as there shewn, as the parts of "which the stopper is composed may be variously constructed in carrying out my invention. 66 "Figures 19, 20, and 21 shew views of another variation of stopper constructed 50 "according to my invention, Figure 19 being a plan view, and Figure 20 a side "view of the stopper, and Figure 21 a transverse section of the stopper applied "to a bottle. a is the upper and b the lower part of the stopper; each of these "parts is composed of stamped metal, as in the stopper first described. c is the ring of vulcanized india-rubber or other elastic material; and d the lever 55 "hinged to the lower part b of the stopper. 66 Griffiths v. The Birmingham Stopper and Cycle Components Company. "Separate views of the lever d are shewn at Figures 22, from which figures. "it will be seen that the lever is composed of a semicircular flap, having "slots d' through it, by which it is hinged to the part b, and also having two "small projections d', which act on the surface or ring a' of the upper part a 5" of the stopper. 66 10 The action was tried at Birmingham on the 11th of August 1898, by CHANNELL,J. Lewis Edmunds, Q.C., and H. Stubbins (instructed by Lane, Clutterbuck & Co., of Birmingham) appeared for the Plaintiffs; H. A. McCardie (instructed by W. M. Jeffery, of Birmingham) appeared for the Defendants. Messrs. G. C. Marks and H. A. Griffiths gave evidence on behalf of the Plaintiffs, and Messrs. H. Skerrett and H. P. Truman on behalf of the Defendants. CHANNELL, J.-I have had a good deal of doubt upon some points in this case but not upon others. At last I have come to the conclusion, not without 15 some doubt, that the Plaintiffs are right upon Claim 3. It seems to me that Claim 3 relates entirely to the mode which I call-and I dare say not very accurately as regards mechanical terms-the mode of working the lever in connection with the lower plate. It is done by putting the lever into these slots, which slots are, in the Plaintiffs' stopper, turned up as it were from the lower plate. They are slots 20 connected with the lower plate-the lever works in them, and the lever being flat, works by occasionally leaving, between the two, the broad part as it were, the lengthy part of this crosspiece of the lever, and at other times the narrow part that works in a slot which is in this piece attached to the lower plate. The Defendants' way of doing that seems to me identical. There is a slot in 25 something attached to the lower plate. It is true that it is not one simple piece cut out and turned up as the Plaintiffs' is. It goes all round; but when it is cut out like that you see that really there is no mechanical effect in covering it in all round. If the Plaintiffs' invention depends, as I thought at one time it might have done-I mean so far as this attachment is concerned-upon 30 the simple plan which they adopt of cutting a piece out of the lower plate and turning it up, which is very simple and in its way ingenious-if it depended upon that the Defendants would not have taken it because they do not make theirs in that way. They put a covering all round and it is more elaborate; but if the invention depends upon the mode of working the lever in these slots then the 35 process is identical. So that if that part is a good and patentable thing the Defendants seem to me to have infringed it. Griffiths v. The Birmingham Stopper and Cycle Components Company. In Then there comes the question whether the Patent is good, or whether it has been anticipated by what I may call the alternative scheme of Thompson's Patent. Thompson's was the original Patent for stoppers of this description, and he puts in his principal and most elaborate drawings a hook in the middle, and the Patent was worked and constructed in that way and with that hook. But in 5 addition to that, in his Specification he put some figures (19 to 22) which describe an alternative way of working it, and particularly he described an alternative way of working the attachment-if I may call it so to the lower plate. What seems to me a matter of doubt in this case is whether that was an anticipation of the essential parts, so far as the working of the lever 10 and the lower plate together are concerned, in the Plaintiffs' Patent. some respects no doubt it is similar. The drawings are not certainly quite correct. Apparently it was the subordinate part-it was not the thing which Mr. Thompson was going to work, and he was not quite so careful perhaps about his drawings as he might have been; it is clear there are inaccuracies in 15 them. One of the gentlemen who was called here has succeeded in making the thing which he says was obviously intended by that, and I dare say he may be right. I do not think myself that the inaccuracy of the drawings is a matter of much importance, but as regards this being what Mr. Edmunds calls a mere paper anticipation, I doubt whether it comes within the principle of the cases 20 which he tells me exist about the Court not relying much upon mere paper anticipations. I think these cases perhaps refer to instances where somebody had lodged a Specification, and that Specification had remained in the Patent Office and never had been used or noticed by anybody at all. In that case one can quite understand the Courts not desiring to pay more attention to it 25 than they were obliged; but this Patent of Thompson's was rot one of that character at all. The Patent itself was one that was worked, and largely worked, and very successfully worked, and the drawings (19 to 22) are on the same sheet as the drawings that were worked from, and therefore I have not the slightest doubt that what was in that Specification was a matter 30 that was thoroughly well known to engineers and patentees, and I do not think, therefore, it comes within the principle, if there is such a principle, of mere paper anticipation that you are to neglect. I think this was a thing which was very fairly well known, though the part of it which was worked was the other part. 333 35 The real question is-is it really an anticipation of what the Plaintiff's have got? I have come to the conclusion, not without some hesitation, that it is not. The thing there worked is a little different. It is worked by the lever pressing upon the flange in a way altogether different from what the Plaintiffs' lever does and what the Defendants' does. What I call the broad and the thin part of the 40 lever I do not know whether I make myself intelligible-work in the slots which come out. These loops are not in their operation really equivalent to the slots, nor does the lever work in the same way in this thing when one comes to look at it. I am afraid I said at one stage of the case-I hope I have not misled anybody or stopped any argument-that the mechanical operation was 45 the same. So it is, in one sense, but not in another. The mode in which the stopper is worked with the lever and the lower plate together seems to me to be different, both in the Plaintiffs' and Defendants', which are identical, from this thing which is said to be constructed according to Figs. 19 to 22 in Thompson's Specification. On the whole I think that the Plaintiffs' must be considered to be a good Patent, and I think that part of it has been infringed by the Defendants and consequently there must be judgment for the Plaintiffs. A Certificate that the validity of the Patent came in question was given. 50 55 Griffiths v. The Birmingham Stopper and Cycle Components Company. T. Terrell, Q.C., and H. A. McCardie (instructed by Goldberg, Barrett & Co., agents for W. F. Jeffery, Birmingham) appeared for the Appellants; Lewis Edmunds, Q.C., H. Stubbins, and A. J. Walter (instructed by Ward, Bowie & Co., agents for Lane, Clutterbuck & Co., Birmingham) appeared for the 5 Respondents. Terrell, Q.C., for the Appellants. It was held below that the Patent was not anticipated, and that the Defendants had infringed. The object of the invention was to bring the upper and lower plates of the stopper together, so as to compress the india-rubber and to send it out laterally. [The operation and 10 parts were described.] The Defendants are alleged to infringe Claim 3. It is for a combination which does nothing, and is bad. There are four parts in the Plaintiffs' stopper-the bottom plate, the pressure plate, the lever, and the top piece. The Defendants' stopper has a bottom piece, a top piece, a collar, and a cross-lever. Theirs does not operate by the intervention of a pressure plate. If 15 the Plaintiffs' Patent had been original the Defendants would have been out of Court on infringement; but the Plaintiffs are in the dilemma that, if their Patent be construed to cover what the Defendants do, it is anticipated by Thompson's Patent of 1865. A very large number of stoppers have been made and sold under that Patent. The difference between Thompson's invention and the 20 Plaintiffs' invention is that Thompson has no pressure plate; but the Defendants also have no pressure plate. If the Plaintiffs invented anything, the invention was the introduction of that plate. In Claim 3 the top plate is not mentioned. [The judgment of Channell, J., was then read.] Edmunds, Q.C., and Walter, for the Respondents.-Thompson in 1865 intro25 duced the approximation of the upper and lower parts, but there is no evidence that anything according to Figures 19 to 22 has been made. It is a paper Patent as to these. Moreover, the drawings are deficient. They do not shew clearly what it was that was intended, and there is evidence that they are unworkable as shewn. In the third claim of the Plaintiffs' Specification the pressure plate 30 is left out, but the cross-lever and the double lug are claimed; these are important features, and the arrangement has increased strength. The disclaiming clause is drawn so as to differentiate from Thompson. Counsel for the Appellants were not called on to reply. SMITH, L.J.-This is an action brought by Patentees for infringement of a 35 Patent of 1895 for improvements in stoppers for jars against The Birmingham Stopper and Cycle Company. The case was tried before my brother Channell, who gave judgment for the Plaintiffs. He held that the Plaintiffs' Patent of 1895 was a good Patent; that it had been infringed; and had not been anticipated by a Patent taken out for stoppers by Thompson in 1865. 40 We have to consider what is the essential feature of the Plaintiffs' Patent, and when I come to that I turn to the evidence given by one of the Plaintiffs themselves and see what he says is the essential feature and the feature that was the subjectmatter of the Patent. This is what he says:-"I prefer "-this is the Patentee himself" to introduce a pressure plate-essential part of my invention." 45 What is the meaning of that coming from the Patentee? It is that the essential part of his invention was the pressure plate, and it seems to me he is quite right. We have heard it argued this morning that the real feature, if anything, that differentiates the Plaintiffs' Patent from Thompson's is this pressure plate which he introduced, and which he himself says is the essential feature of his 50 invention. What happens upon that? The only evidence that has been given. coincides with my view of the facts of this case. I do not pause to inquire into little matters of detail or variations, which are really not essential and are not subject-matter, but I am only considering whether the Patent has been infringed or not. What is it the Plaintiffs put in their Patent? They have a lever; they have 55 ears; they have a pressure plate; and by means of the combination of these three things they bring about a result which is that an india-rubber rim round the edge |