Barrel Fitting & S. Corp. v. American Flange & Mfg. Co.

• Decision Date: 05 January 1935
• Docket Number: No. 5261.,5261.
• Parties: BARREL FITTING & SEAL CORPORATION OF AMERICA v. AMERICAN FLANGE & MFG. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

74 F.2d 569 (1935)

BARREL FITTING & SEAL CORPORATION OF AMERICA v. AMERICAN FLANGE & MFG. CO.

No. 5261.

Circuit Court of Appeals, Seventh Circuit.

January 5, 1935.

Thorley von Holst, Sidney Neuman, and Joseph F. Devereux, Jr., all of Chicago, Ill., for appellant.

Frank Parker Davis and Harry W. Lindsey, Jr., both of Chicago, Ill., for appellee.

Before EVANS and FITZHENRY, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Were claims 8 and 10 of Patent No. 1,838,042, issued to Henry Schwartz, covering a "Bushing Structure and Sealing Means Therefor" infringed by appellee? The District Court found they were not infringed. Appellee also argues that both claims are invalid for want of patentable novelty. The claims are set forth verbatim in the margin.^*

The issue of infringement turns upon the construction of the claims in the light of the explanation which the applicant made to the Examiner in the Patent Office. In his specifications the applicant said that his invention had special reference to a structure such as is used as a bung for metallic barrels and other containers usually employed in storing or shipping oils or other liquids; that the bung or plug was so constructed as to prevent a leakage of the liquid from the container during the shipping or storage thereof and also a means for preventing access to the bung or plug in order to guard against an unauthorized opening of the barrel or container. The plug or bung is cast with the usual tool engaging formations on the outer end portion thereof and is externally threaded to engage an internally threaded bushing of the barrel or container. In lieu of the usual sealing gasket between the bung and the bushing or between the bung and the wall of the container, a peripheral groove is cast or otherwise formed on the upper portion of the bung in which groove is cast a material which is softer than either the material of the bung or of the bushing. The cast material in the groove is initially unthreaded and the peripheral contour thereof is coextensive with the external threads of the bung. When the bung is threaded in the bushing, the latter forms threads in the cast material, thereby providing a leakproof joint therebetween.

Describing appellee's structure, the District Court said:

"Each of defendant's plugs, complained of in this suit, employs the usual sealing gasket formed of rubber. In defendant's structures * * * the rubber gasket on the plug may be forced down into one or more threads of the bushing but the gasket is not susceptible of repeated reuse as in screwing the plug `home' the gasket is cut and destroyed. In defendant's structure * * * the gasket is compressed around the circumference at the middle between the top of the bushing and the flange on the bung. In defendant's structure * * * the gasket enters the top thread of the bushing only approximately at the point where the thread begins."

When applicant met with opposition in the Patent Office he sought to distinguish his invention from that shown by one Sleight who had obtained a patent on a somewhat similar structure. He said,

"By referring to the latter reference it will be noted that the sealing means thereof are not in engagement with the threads of the body portion. Sleight merely provides a rabbeted seat for the reception of a gasket of rubber or like material. This is a form of an ordinary gasket and is placed in the usual position of gaskets between the flange of the stopper and the wall surrounding the opening in the container, the gasket lying adjacent the thread connecting portions but not in engagement with the threads."

He further said when his claims were amended and restricted.

"The gist...