280 F. 852 | 2d Cir. | 1922
The subject-matter of this litigation is the commercial article known as the tungsten-nitrogen lamp, in making which both the patents in suit are used, as is also the Coolidge patent 1,082,933, lately considered at length and broadly upheld in General Electric Co. v. Independent, etc., Co. (D. C.) 267 Fed. 824. The exhaustive opinion of Mayer, J., resulting in the decree appealed from, is reported in General Electric Co. v. Alexander (D. C.) 277 Fed. 290.
Reported decisions have, we think, rendered unnecessary further discussion of what may be called the history or technical literature of the three patents mentioned. Adhering, as we do, to our previous rulings above referred to, we shall now treat everything but what are called new questions of law, largely by reference to reports.
It is proved, and indeed admitted, that both the individual and cor
The defenses urged against the Just and Hanaman patent are:
(1) That the same patentees obtained German patent, 154,262, valid from April 15, 1903, for substantially the same invention as is revealed by their patent in suit applied for July 6, 1905; wherefore the patent at bar is invalidated under Rev. Stat. § 4887 (Comp. St. § 9431).
(2) There is no infringement, because defendant’s filaments contain an extremely small quantity of thoria, which prevents said filaments being the “pure, coherent, or homogeneous” tungsten filaments of Just and Hanaman. Vide claims, 233 Fed. at 971, 147 C. C. A. 166. In point of fact defendant’s filaments are admittedly made in the manner of Coolidge, and contain thoria for the reasons and purposes set forth in Coolidge’s disclosure. Cf. (D. C.) 277 Fed. 292, 293, and (D. C.) 267 Fed. 839.
The claim of the German patent is for a process, and we agree with the court below (vide 277 Fed. 295-299) that the German process is wholly inoperative, in that it cannot produce the product covered by the patent in suit. The essential reason for this conclusion is that doing what the German patent calls upon one to do will never replace carbon by tungsten. The process rests upon the theory of replacement, and that theory has no substratum of fact.
Defendants further object to the bringing or maintenance of this particular suit. Defendant Alexander and one Fabian were once partners trading as Alpha Electrical Laboratories. This concern sold infringing lamps, whereupon this action was brought against the partners trading as aforesaid. Subsequently plaintiff learned that, before bill filed, the business had been incorporated as Alpha Laboratories, Inc., at which time Alexander had bought out Fabian and become the owner of all the shares in the new company, as well as its president and treasurer. Thereupon by leave of court supplemental bill was filed, bringing in the corporate defendant; and there is proof that the corporation continued to do the same business and make and sell the same infringing lamps as did the partnership. At trial bill was dismissed as to Fabian, and injunction given and accounting ordered against both Alexander and the corporation.
Decree affirmed, with costs.