(dissenting).
T do not find the bottle glass art so barren of invention as the court indicates in its opinion. Between the time of man-blowing methods and the patent in suit there wore at least fifteen patents covering a glass bath in which, a reciprocating plunger operated to accelerate and retard the flow of molten glass through an orifice and, in some cases, to form a gob suspending from the orifice, then to be cut off and transferred to a bottle mold. These elements constitute the main structure of the apparatus of the patent and embody its primary function. In adopting and combining them Peiler, so far, did nothing even remotely inventive. He simply took them and used them as he had found them.
Besides these inventions there were many more, as is shown by the fact that it is admitted or conclusively proved that all elements of the patented apparatus were old with the possible exception of means for varying the speed of the reciprocating plunger in its descent. This variation in the stroke of the plunger, effected by an adjustable *414cam arrangement, is what gives pulsations to the flow of glass through the orifice, which in turn, by proper timing, give a selected shape to the gob, the final function of the appa.ratus and method. This variation in the stroke of the plunger and in - the discharge of "molten glass resulting, as the variation is pre-arranged, in a gob of any desired shape, is the pith and marrow of the invention. Even tMs was not adjudged patentably novel by the Chancery Division of the High Court of Justice in construing and holding invalid the claims of Peileris British Patent. British Hartford-Fairmont Syndicate, Limited, v. Jackson Bros. (Knottingley) Limited, decided January 21, 1932. Assuming however, contrary to the English decision, that the element of a plunger, variously named in the claims, is broad enough to include a plunger with a stroke of variable speed which thereby extrudes glass through the orifice in varying mass and gives it a selected shape while suspended, and assuming also that this was new and for that reason the Tyhole apparatus or method is an invention, it is certain that the alleged infringing, apparatus of the defendant, also having a prior art plunger, does not operate with the Peiler graduated plunger stroke and, in consequence, does not selectively shape or pre-form the gob at the orifice. It has the old plunger stroke of one speed, regulated as before with reference to the weight of the gob, not to its shape, except, of course, that it be small enough to pass into the mold. The patent makes no claim of regulating size apart from shape.
The only shaping of the gob by the defendant’s machine is that effected by a false ring, positioned many inches below the orifice and shears, through which the'gob after it has been'severed from the orifice drops on its way to the mold. This shaping, such as it may be, is by an altogether different means in an altogether different place from the shaping means and place of the patent.
Regarding as undisputed the evidence on the different ways in which, as briefly stated, the plungers of the two apparatus operate, it follows that the straight stroke plunger of the defendant’s machine does not, and cannot, give to a gob the shape which a plunger with a variable stroke will give it, and therefore does not infringe. If this is not true, then it is because the advantages and functions of the new variable stroke of the plaintiff’s prior art plunger do not exist; or, if existing, they are equally present in the old straight stroke of the defendant’s prior art plunger^ and therefore the claims are invalid. So, in my view of the case, the ' claims are either invalid or not infringed. There is no other choice. Finding against infringement and approving the decree dismissing the bill [39 F.(2d) 111], I am constrained to dissent.