The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action for the alleged infringement of Patent No. 1,580,670 issued by the U.S. Patent Office to Berthold Nagy for Delivery Mechanism for Bottle-Cap-Assembling Machines, granted April 13th, 1926 on an application filed February 10th, 1922.
This action is based upon all the claims of the Patent with the exception of claim 18.
Each of the claims so relied upon, except claim 17, is limited to an intermittently rotatable transfer mechanism. Claim 17 is broad enough to cover structures in which such mechanism moves continuously.
The plaintiff, who is the patentee of the Patent in suit, is suing in person. He is engaged in the manufacture of specialty machinery for use in connection with the manufacture of crowns with a plant located in Brooklyn, New York, within this district.
The defendant is a manufacturer of diversified cork products with a crown manufacturing division with a plant located in Brooklyn, New York, within this district.
During the trial, the plaintiff, with the consent of the defendant, was allowed to amend his complaint to include Mundet Cork Corporation, successor in interest to L. Mundet & Son, Inc., as party defendant.
Caps, mentioned in the Patent in suit, and hereinafter referred to as "crowns", are metallic closure members used principally to seal glass bottles holding carbonated beverages. They consist of a metallic shell with a crimped periphery and containing a cork insert which provides a cushioned seal between the pouring lip or mouth of the bottle and the metal shell when the latter is constricted about the neck of the bottle.
As described by the patentee in the specification of the Patent in suit, the invention is stated to relate as follows:
"My invention relates to delivery mechanisms for bottle-cap-assembling machines, and more particularly to a construction and arrangement of parts which will permit a slow movement of the completely assembled caps adjacent the finishing head of the machine, without reducing the capacity of the machine."
The delivery mechanism of the Patent in suit relates to a sorting table used as an accessory to a machine for assembling cork inserts within the metallic shells to form completed crowns. The crowns proceed, cork side up, from the circular rotating head of the assembly machine, in single file, along a narrow conveyor belt, moving at a speed substantially the same as that of the rotating assembly head, to a point at one end of, and above the end of a wide slowly moving sorting or inspection belt. At that point a seven-bladed intermittent, rotary transfer mechanism, quite similar in appearance to a paddle wheel, which is mounted above the narrow fast moving conveyor belt with its axis along the direction of travel thereof, moves a sufficient distance to wipe or push a row of six or more crowns from the narrow belt on to the wide slow moving belt. The wide slow moving belt being at right angles to the narrow belt, receives the crowns, thus transferred in parallel transverse rows. The transfer mechanism thereafter continues its intermittent rotation, each time the distance of one blade, and repeats its operation of transfer of crowns from the narrow fastly moving conveyor belt to the wide slow moving one. An operator inspects and removes defective crowns from the sorting belt before they reach a receiving bin which is customarily located at the far end of the belt.
Conveyor system sorting tables of this general type were old, as appears from the specification of the Patent in suit, Page 1, Lines 21 to 32.
There is some difficulty in determining from a reading of the Patent, what the Inventor may have considered to be his particular invention. It may have been that he thought the real location of the inspection belt was the basis of the invention.
On the trial, and in his beief, the plaintiff contends that his invention consisted in taking machine elements and combining them in such a way that he obtained a machine for examining or inspecting crown-caps which was more simple and compact than any then available, and then, of far greater importance, he so arranged and adopted the examining apparatus with relation to a machine for assembling crown-caps, that he made it possible for one operator to do the work theretofore done by two.
While there is mention in the specification of the patent in suit, of the fact that one operator may inspect the caps, and be in a position where in an emergency, the machine may be instantly stopped, it does not seem to me that that represents the invention of the Patent in suit.
The claims sued on are all directed to the delivery mechanism alone, and not to a combination of such mechanism and bottle cap assembling machines.
Claim 18, the only claim not sued on, is for a complete assembling machine and sorting table combination, therefore, it does not seem to me that the saving in the number of operators necessary to handle a complete assembling machine and sorting table combination, can be the basis of the invention, as to the claims on which this action is based.
Before disclosing the prior art, attention should be given to the acts of this defendant, as plaintiff has given ...