247 F. 323 | 2d Cir. | 1917
(after stating the facts as above),
Welin’s patent, 713,089, is even more obviously subject to the same' criticism, and it therefore appears that the art prior to Brown had not devised any internal mechanical player which operated directly upon the manual action without the addition of something permanently affixed to the “abstract.” This was an obvious disadvantage, because, in a mechanism so fixed in form and so delicate in adjustment as a piano action, it was a matter of no small consequence that it should be left without any added weight whatever. How far such weights as the angle levers of Brown and Wright and the movable levers of Welin actually affected the playing mechanism may perhaps be open to some question; but that it might be regarded ’by the owners of the piano themselves as a disadvantage, even though it could not be shown to be such, is quite obvious. Moreover, even if this were not the case, the adjustment of those levers was a complicated and laborious device.
The defendant is correct in saying that it has done no more than adapt the patent of Courville, 755,764, so that it shall be contained witliin the case. Its argument is that in so doing it did no more than to reduce the size of Courville, and that a mere reduction of size cannot he the basis of a patent, any more than any othfcr new use of Courville’s instrument can be deemed such. More could be said for this contention, were Courville adaptable as it stood by a mere reduction of size to a mechanical player contained in the case; hut in some details at any rate this is not true. The finger levers, N2, of Courville, operated upon the notes, while the defendant’s “strikers” operate upon the “wippeu.” The finger levers had to be eliminated before Courville could be used, and such a mechanical change at least forbids the defendant’s player from being considered literally as a new use of Courville. The change, taken by itself, is undoubtedly a small one; but it requires a consideration of how far one part of the art was at once readily transferable to the other.
Mechanical players had been in existence since 1880, the application date of Needham & Fowler’s first patent, 238,145, and in their first forms were permanently fixed within the instrument itself. This method continued for some time, but they required to be specially built into the pianos for the purpose, and the player might: be thought to affect the action. It was concededly an advance to devise removable players, and, when the art. attempted it, it created both the movable cabinets and the players within the case at about the same time, Parker & White, 592,641; Brown. 581,390. Yet the cabinet player was in every sense less desirable than one contained in the case, and must be accepted as a concession to the difficulties of a removable case player, especially as it has disappeared in the face of Danquard’s patent We think it quite safe, therefore, to say that Courville was not obviously adaptable into a case player and that the subsequent attempt of the defendant to make it available as sue!) depended upon suggestions which it. obtained altogether from Danquard. The history of the art forbids any ready assumption that the change was within the scope of an ordinary artisan before Danquard appeared.
The issue of infringement is verbal; it turns upon whether the defendant uses a pivoted “striker.” Literally it does not, and the issue becomes one of equivalents. The “striker” performs its duty only at its free or movable end. Under the impulse of the “abstract” this end is pushed up against the “wippen” and falls of its own weight when the “abstract” is released. The pivot is simply to keep the “striker” in its lateral position; the small arc through which its end moves being of .no consequence practically. A guide to keep the “striker” in its position precisely answers the purpose of the pivot, for it allows a free vertical motion of the operating end of the “striker,” and at the same time keeps it from displacement as a whole. It would be, we think, a mere evasion of the claims to confine the patentee to the exact words which he used.
The decree is affirmed, with costs.