SEELEY'". BRUSHELECTRl:I'fcOO.
419
be true for the purposes ofthis case.
,the porters nor the.assumptioris of theboard'bind the collector or the tary of the treasury, whose decisions, in ,the absenOO:bf any finding either way, will, uuder a well-settled principle of law, be presumed to be correct. Rllrtmv.lIoyt l '4 How. 328. If the collector's deCision that they should paY', the higher duty Can be sustained only on the,theory that the are really woolen cloths, they will be to be snch, unless the contrary is found as a fact. , If an examination of, the goods is a Iiecessary prerequisite to ,(llassification by the secretary 'oftha treasury, i twill be presumed that he made such examination, unlessthe contrary is found as a 'fact. ' The pI:ovhiion in sectio1115 for the taking Of additional evidence 'by a single appraiser, under order of the court, is intended, not to secure additional findings by the board, but to enable the importer or collector to controvert or to sustain the certifications of the board as to the facts iilVolved in the case. The board of general appraisers is by the act constituted the tribunal to decide, in the first instance, "as to the tion of the law and facts respecting the classification of [the imported] merchandise," (section 15;) and issues not raised by the protest and decided by the board should not be brought into the case, for the first time, after it reaches the appellltte tribunal, whose sole function seems to be "to hellr and detennine upon the record [i. e., the returns of the board and the additional evidence, ifany] the questions of law and fact involved in such decision, respecting the classification of such mercha'ndise, and the rate of duty imposed thereon." Section 15. Therefore, unless the board decides a particular issue of fact, involved in the case presented to it, it might be that the importer or collector would be precluded from arguing the same issue in the appellate triuullal. The petitiol1er may take order'Itir a completed' return. '
of
SEELEY
et ai.
'II. BRUSH ELECTRIC
Co. et
at.
(Circuit oourt, N. D. nUnotB. January 5,1891.) P..lTENTS 1I'OB INVENTIONS-INFBINGBMENT-ELECTRIO LIGHTS-FEEDING DBVICES JOOB CARBONS.
Letters patent No. 147,827, Itl'anted January 24,1874 to Matthias Day, for an "improvement in electric lamps, .. were for a device by which the upper and lower carbon hC)lders,of an electric lamp, each arranged to carry two or more carbons. are caused to be fed towards each other in such relations that the arc will be established and burn between one pair of carbons for a short interval and then shift to the other pair, so that the arc shifts from one, pair to the othel,until both areoonsumed; but the carbons carried by each carbon bolder move together. Held, tbat this patent is not infringed by letters patent No. 219,208, granted September 2, 1879, to Charles F. Brush, for a device whereby the upper carbons are separated, dissimultaneously from the lower, whose holder is fixed, so that the arc is established between pair last separated; the upper carbon of which is fed toWards the lowel' until they enth'ely qonsumed, and then the aro is established J;JetweeD t.h", other pair, whioh burns in tbe same way.
420
nDERAL REPORTER,
vol.· 44.
In Eqpity. ,. . George P. Barton and John R. for complainant. M. D. L. L. Leggett, (or defendants. BLODGETT, J. In this case complainants seek an injunction and accounting by reason of the alleged infringement by defendants of patent No. 147.827, granted January 24, 1&74, to Matthias Day, for an "improvementin electric lamps." The patentee states in the opening paragraph of his specifications the difficulties in the art of electric lighting which his deviceisintended tc;> overcome, as follows:
"In the use of electric burners the following difficulties are found: First. Cl,\llsing the carbons or points to approach automatically, with a speed cominensurate to waste by the current. A greater 01' less speed breaks the current and extinguishes the light. Second. The waste of the point connected with the carbon pole of the battery is greater than that of the other, and, from various causes, is irregularly 90. Hence the carbons must approach at unequal, and at consequently speed in order that the point of light may always in the focus of the lens or mirror. Thi1'd. Owing to 'the rapidity of the waste, electric lights have been of short duration, requiring a constant attendant to replace the carbons, during which time the light is of course extinguished." .
He then describes his-device as consisting of an arrangement by which upper and lower electrode, or carbon holders, each arranged to carry two or more carbons, are caused, by the action of the electric current Bnd an intermediate antomatic device, to be fed towards each. other in such relations that the arc will be established arid burn between one pair of carbons for a short. interval and then shift to the other pair of carbons, where1Jy each. pair of carbons, carri.d by the carbon holder, be alternately bUrNed. by shiftitlg the arc from one pair to the other paIr,at short intervals, until the carbons of all the pairs carried in the carbon holders are cO'1sumed. the term "pair of carbons" meaning the upper and lower carbons which are arranged so that their points or ends will meet and form the arc between them. The carbon holders are constructed each with two or more sockets, in which the carbons or electrodes are as th;e sl?ecifications ar;ranged. in parallel, not touchmg each other,and those III the upper socket OppOSIte those in the lower;" that is, ll,ElJ underr>tand the specifications, the sockets of each carbon holdp,r are so arranged as to carry the carbons parallel to other, but the surfaces of the carbons carried by the holder must not come in contact with .each other. An upper and lower carbon holder is shown in the patent, each of which carries two carbons, so that the carbons carried by each carbon holder move together. Infringement is lnsisted upon only as to the first claim of the patent, which is: , "(I) In an light, the combination, with each electrode hohler and one electrical circuit, of two or more electrodes, substantially as and for the purposes set forth."
ThedefenseSsre (1) that the defendants do not infringe; (2) that the patent is void for want of patentable novelty. I d.o not, under the proof,
SEELEY V. BRUSH ELECTRIC CO.
421
however, think it necessary to consider any question but that of infringement. It is conceded that this claim requires that each electrode holder, that is, the upper and lower holder, shall be arranged to carry at least two carbons or electrodes, and it is necessarily a law of the machine that the same movement to establish the arc and feed the carbons towards each other is imparted to all the carbons at once; that is, the two or more lower carbons move together and alike, and the two or more upper carbons move together and alike. 'l'he defendants'lamp, which, complainants contend, infringes their patent, is constructed according to the drawings and specifications of patent No. 219,208, granted September 2,1879, to Charles F. Brush. It is. a double carbon lamp, the distinctive features of which are that the carbons of each pair are dissimultaneously separated to establish the arc between the pair last separated, and the carbons between which the arc is so established are wholly consumed before the other pair of carbons are brought into circuit and lighted, instead of a light which is alternately changing from one pair of carbons to the other, thus burning the caruons of each pair in alternation as in complainant's lamp, and this result in defendants' lamp is secured by a feeding device, actuated by the electric current alone, the lower carbons being stationary, and the feeding device acting only upon the upper carbon of the burning pair, the other pair of carbons being held out of the electric circuit until the pair first lighted is consumed. It will be seen from this brief statement that the result or operation of the two lamps is widely difl'en:nt; that complainant's lamp burns its carbons by alternate arcs between each pair, necessarily producing a light unsteady and unsatisfactory, and varying in intensity, because the increase of distance between the burning carbons causes the light to weaken, and finally to form the arc between the other pair of carbons to repeat the same process of weakening the light until it shifts back to the first pair, and so on, while in defendants' lamp the light burns steadily until the pair of carbons between which it is first produced are wholly consumed, when it shifts to the other. pair and consumes those. This statement of the operation of the two lamps would seem. to sufficiently indicate that their operative parts cannot be identical, and an inspection of their mechanism seemir'toehow that the defendants' lamp does not contain tbe elements of the combination contained in the first claim of complainant's patent. This first claim oithe complainant's patent calls for two electrode holders, that is, a holder for the upper and lower electrodes, and that each holder shall carry two or more electrodes. Complainant's expert contends that the lower holder in complainant's patent includes the sockets for the electrodes, and the means for bringing the electrodes into the electrical current, and for moving the electrodes up and down for the purposes of lighting and feeding. The defendants' lamp shows a lower electrode holder, or carbon holder, with sockets. for two electrodes, but with no capacity for movement up or down, II all the movements for establishing the arc and feeding are confined to the upper carbons or electrodes in defendants' lamp, while upper carbons in the defendants' lamp move independently of each other.
,eJojinot lamp two llliecitrodehoiders, ,bllt!tirlcl tthat:the defends;ntsihave thrp.eeleCtrode holders,andwhile exisa c()nstructiteol' mechanical resemblance' between the defendairtslilowerholrler:andtbt of the complainant when the respect'iveii parts, are at 'rest, ,they ,are functionally so different that this 'physooahe,semblance 'counts for nothing. ' When We come to the upper lfincl fhem each carried by RBeparate ariranged in sllchrelations to the other parts of the .lamp that 'each i carbon has: an independent movement entirely unlike 'that of the carbons in thELcomplainant's npperholder, The effect of this arrangemenUs thilit,iu the defendll htsllump, the upper carbons of the burning pair RJrefeddown as fast as the carbons of that pair are consumed, the ¢arbons of the other pair remaining stationary, and' out of the circuit, during the burning of the first pair, while in the complainant's lamp both the upper and lower carbons or each pair are fed towards each other 8imultaneously, to compensate Jur the consumption by burning, and the arc changes alternately ; and8ltshort intervals, from one pair of carbons fjo,the other, thusproducingaditferent light from that produced by the defendants' ,lamp. ,: .. thecaseof'Brush C.o. v.Pt. Wayne ElectriJ:-Light Co., 40 Fed. Rep.:826, hea.rd"beforethe learhed circuit judge of this circuit, the complainant'spatentwas presented as an antidpation of the defendants"patentnollV claimed to infringe, and in his opinion the circuit judge said: "'iUPatent No. 147.827. issued 'to Matthias Day. Jr., Feuruary 24.1874. is re-
lied on as an anticipation 'of the/Hilt. second. and fourth cla1mn of the patpnt in, Suit. This defense is baseL! 9pon a of theSeC!8ims that gives np effect to the,r concluding, restrictive which construction, we seen. is ,not authorized. The patent in suit describes mechanism which deaignedly and positively effects a llissimultaneous separation of the carbons. &l1d Pr,oressor Barker. the deffindant's tlJ{pert. testified that the Day lalJlp was Dot so constrllcted. and did ,not 'so operate. It Is true that thE:' Day patent de8criues It lamp which contains: two or more pairs of carbons, bllt not such a double C-drbon lamp liS Rrushinvented. * * * Owingto the constant and shiitingof the arc from olle,pair of carbons to the other in this lamp it pr,oduced anlrrf'gular andllnsatlsfactorylight. It was unlib the Brust) lamR both in construction and mode,or
,And, in the' case of BrU8h: ElectriJ: Co. v. Western ElectriJ: kPower Co., 43, Fed. Rep. 533, tried in the northern district of Ohio, before Judges BROWN and RICKS,the learned judge (BROWN) who delivered the opinion said: Day patent upon whicn defendants chiefly rely as an anticipation of tbe:Brush patent. as construed by the complainant's exhibit, is a single carbon :lamp. haVing two carbons. instead of one, attached to each carbon holder. 80 the operation oft:helamp both branchps of the carbon boldf't are While the upper and. lower carbons are the current is, div111lild, between them, but w,hlln, lJeparated to form, tb.l'.arq.thoUgh the b()tb OWing tfHhEl:cUt'ference in relllstanC8C)f the carbons. only a arc is formed. 'Wiben !f;hlil arc has burned fora ifewmin utes. the arc wiUi shift to the other Bofar consumed as to require
t. HOTCHKISS
CO.
tional feeding, when the arc is shifted back tQtheftrst pair, and they caused to burn alternately, instead of in the Brush. This alternation is, of course, owing to the fact ,that both, sets of carbolls' are separated simultaneously, and not In succession, as in the Brush patent. in which one is held in reserve nntil the tirst pair is wholly cODsumed.The Day lamp, however. not only lacks the non-coincidence in the separation of the carbons. wbich is the prominent feature of the Brush patent, but in practice it never seems to have been a success...
The functions of the electrode holders of the two lamps are so and the results of their actions 80 different, that I do notthink theelec.< trode holders of the defendants' lamp can be said to, be the same, iQ fwiction or result, as those of the complainant's combination. 1 therefere do not find that the defendants are guilty of infringing the complaihant's patent. The bill is therefore dismissed for want of equity.
HASKELL V. HOTCHKISS
&
UPSON
Co. et ale
(Circuit Court, D. Connecticut. ,Peoember 24, 1890.) ioATBNTIl POR INVENTIONS-BcBBW-:M.utING , lfJCIPATION. OJ' ' ' ,
The for letters patent No.12Ij,269, granted April 2, 1872, to James H,' Carpenter for improvements in machin,es for, cutting gimlet-pointed screws, recitethat "the purpose of the present improvement Is' to cut 'the point 'upon the screw by an operation subsequent to ,tilathy which the thread is cut Upon' body, so that the strain of the two operations shall not come upon the screw hlan:k at the same time, " as had previously been the case; and the specifications 'furtllei recite that "my first impl'ovementconllisted in the combination with the dies·whi¢lJ; cut the ho(iy of the screw of a threaded back rest, which * * * holds the screw: after the dies which cut the body have left it, and the pointing tool or tbolsby ,which the t,hread is cut upon t<he point while the screw is supported hy the threaded" rest." :My second improvement consists in, the use of what I call the ·serial C1ltter or tool;' which is made with a series of cutting edges, * * * and its relation" to thllpattern or former * * * is sucb that the several catting edges will,l'6>i move successive shaVings from the point of the blank." The claims are: "(1) Th.o threaded rest as a device to snpport the screw already formed. * * *' and Iii connection, with the screw to act as a l!lader ,to give motion to J2)The serial tool, e, In combination with a former or gUide so related thereto that . * * the several teeth 'will cut successiv6shavings" from the blank.' Beta.; that the second claim could not be construed to Include a threaded rest and screw, with the two elements therein mentioned, hut must be limited to a com biJ;latioD '. the latter; and, as itw8S anticipated as so limited by letters patent 128,307; granted January 30, 1872, to Cyrus B. ll'. Tingley, it was void. . :'.' ·
,In Equity. John
. I i.:;:
Wilmarth H. Thurstan, for plaintiff.. . I. .
and Ohq,rlea E. MitcheU.,f,or defendants. . ·
,SHIPMAN,.J. This is a bilLin equity,which alleges infringement J,y the 'defendants ofletters patent No. 12'5,269, dated April 2, 1872"to improvements in machines for entting gitnlet'" "Thebill was filed in :May, 1885; 'fmd for,ah' pointed acco\}nting. Theplairiti/f,. in his tb.e aec<;md clail)J.. .For U18IlY
1.1 ..'
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