138 F. 903 | U.S. Circuit Court for the District of Southern New York | 1905
The patent in suit relates to that kind of music boxes in which discs or rotary note plates are used to operate the vibrating tongues. It consists of a mechanism designed to facilitate the removing and putting in place of these discs. This frequent removal is necessary to change the tunes. This mechanism also drives or rotates these discs by means of small openings or depressions in the discs near the outer edge or periphery thereof, which engage with a sprocket wheel. There is also a hinged rod having friction wheels at short distances apart, which, when the rod is in position, press gently upon the revolving disc, which is turned or revolved by the said sprocket wheel, and thereby (such pressure) keep the disc evenly upon the vibrating tongues placed in line from near the center to the circumference of said disc, and beneath same, and also under the said rod. There is a central pin or pivot about which the disc revolves, and from this the disc is easily removed by lifting it up after the rod spoken of is raised. There is an adjustable sleeve on this pin or pivot beneath the disc, when in place, which supports the disc. The rod spoken of is hinged outside the outer edge of the disc, and may be swung completely over, so as to point away from the pin or pivot; but, when in position for use, such rod, with its friction wheels, has the free or unhinged end attached to the central pivot and fastened by a latch. Unhitch the latch, throw back the rod, and lift off the disc; place another disc in the same position, engaging one of the openings with the sprocket wheel, bring the rod back into place, and fasten it with the catch. These are the movements for removing and replacing the discs. The. disc, as stated, is turned by the revolving sprocket wheel
The following quotation from the specifications points out the defects or difficulties claimed to exist in the prior art, and which this alleged invention described in the patent in suit was designed to remedy or overcome:
“Our Invention relates to that class of music boxes wherein discs or rotary-note plates are used to operate the vibrating tongues, and consists in the novel arrangement and combination of parts hereinafter described, and specifically pointed out in the claims. Heretofore in this class of instruments rotary note plates or discs have been driven from a shaft located in the central portion thereof, which shaft was operated by suitable mechanism. This was objectionable for many reasons. The motion imparted by the shaft located as above described was jerky and unsteady, which is a serious disadvantage in this character of devices. It required, in music boxes built upon a large scale, that the power for.rotating the disc be very great, and it was found difficult to operate the disc to the slight degree often required. The object of our invention is to provide a simple device, which, with comparatively little power, will rotate the disc in a steady, positive manner, and to the smallest degree when necessary.”
It seems clear that these specifications allege (1) that in the prior art the music discs-were rotated by means of a revolving shaft at the central portion of the disc (the shaft, however, not being integral with such disc), which shaft was operated or turned by suitable mechanism; (2) that the rotating of the music disc by means of this centrally located revolving shaft gave to such disc an uneven, jerky, unsteady motion, and necessarily interfered with the musical sounds produced, and perhaps with the contact of the disc with the vibrating tongues; (3) the movement of the disc by this means, when the machine was operating, required great force, and it was difficult to impart slight, even motion. The purpose or object of the invention was to overcome these alleged defects or difficulties.
The claims of the patent are as follows:
“(1) In a music box, the combination of the disc, A, having apertures, b, near the outer edge, and having playing edges, i, with the sprocket wheel, c, adapted to engage in said apertures, b, and means substantially as described for holding the disc down by pressure from above, substantially as and for 'the purpose specified.
“(2) The combination of the disc, A, means substantially as described for rotating said disc from the outer part thereof, rod, d, and friction wheels, e, mounted thereon, and adapted to bear upon the outer face of said disc, a, substantially as described.
“(3) The combination of the disc, A, provided with apertures, b, near the outer edge thereof, sprocket wheel, c, adapted to engage in said apertures, ' central pin, a, and adjustable sleeve, z, for supporting said disc, A, and upper bar, d, having friction wheels, e, all arranged substantially as and for the purposes set forth.
“(4) The combination of the disc, A, provided with apertures, b, near the outer edge, with sprocket wheel, e, adapted to engage in said apertures and rotate the disc, hinged rod, d, friction wheels, e, hung thereon, and adapted to bear upon said disc, A, central pin, a, and latch, g, substantially as described.”
Of these claims, claim 4 is the more specific. It mentions all the elements of the combination referred to in all the others, except the adjustable sleeve for supporting the disc at the center. If these defects and difficulties-existed in the prior art, and had not been met
The elements of the combination described in the patent are: (a) The disc with holes or depressions near the circumference to engage the sprocket wheel, (b) The sprocket wheel so located as to engage these openings or depressions in the disc, (c) The central pivot or pin, on which is a movable or adjustable sleeve. These support the disc at the center, and keep it in place, (d) The hinged rod with friction wheels to keep the disc steady and even, and pressed upon or against the vibrating tongues.
But while there was invention in transferring the power from the center to the circumference, adopting means for steadying the disc, etc., the question is, are the patentees in the patent in suit entitled to the credit? Did they originate this change? Did they make this combination?
The statement in the patent in suit, “Heretofore, in this class of instruments, rotary note plates or discs have been driven from a shaft located in the central portion thereof, which shaft was operated by suitable mechanism,” gives the distinct impression that means for rotating or driving the discs by power applied at or near the periphery of the disc were theretofore unknown, or at least that these discs in such machines had not been rotated in that manner. The other statements already quoted are to the effect that, because driven by power applied at or near the center, the difficulties to be remedied arise. The inventive idea, if there be one, seems to reside in transferring the means for rotating the disc from near the center to near the circumference thereof.
Turning to the prior art, in United States letters patent No. 267,-482, dated November 14, 1882, for music box, issued to Miguil Boom, of Port Au Prince, Hayti, we find a brass or other metal annular disc rigidly mounted on a short vertical shaft journaled in a base, and a top crossbar. The disc is thus adapted to rotate in a horizontal plane. The disc is provided at its edge (circumference) with a projecting flange or ridge which fits into a notched or recessed guide lug attached to the inner side of the frame of the rriusic box, whereby the disc is guided, and vibrations thereof are prevented. A circle of teeth project from the underside of the outer edge of the disc, and these engage a pinion (a cogwheel with teeth) which is mounted on the inner end of a shaft which is turned or revolved by a crank, or any machinery, or by clockwork. The disc
“In musical boxes, a second disc, A, laid upon the note disc so as to cover the same, both discs being held in position by stud, 0, said disc, a, being driven by engagement at its circumference with the driving mechanism, for the purpose specified, substantially as described and shown. (2) In musical boxes, a driving mechanism, T, which is carried in a frame fixed to one of the sides of the musical box so as to be readily removable, for the purpose specified, substantially as described and shown.”
Turning to the drawings which accompany the claims and specifications, we find the music plate or disc adapted to turn or rotate, as in the patent in suit, on a suitable pin or pivot in the center, and removable therefrom. The same is true of the second disc. We have also a sleeve which supports these discs, but it does not appear whether or not it is adjustable. In place of the hinged rod of the patent in suit, we have a second disc, nonmusical, superimposed on the first or musical disc, and which at the circumference extends beyond the m.ain or musical disc, being of greater diameter. Near the center pin or pivot is a stud which holds and carries this second disc on the same spindle or center pin or pivot as the main or musical disc is carried. This second disc lying on top of the musical disc keeps that rigid and steady, and, in a degree, prevents the jerky and unsteady motion referred to in the specifications of the patent in suit, and also maintains even contact with the vibrating tongues below. In this second disc, at its periphery, as in the disc of the patent in suit, are holes, apertures, or depressions which engage with the teeth of a sprocket wheel as in the patent in suit, and which wheel is the same in all essentials, if not exactly the same, as in the patent in suit, and is located in the same place, and acts in the same way to rotate the musical disc, except that in the patent in suit we have the apertures or depressions to engage the sprocket wheel in the circumference of the musical disc, while in the Lochmann application and patent (for it was subsequently patented) we have them in the supplemental disc. The great advantage of this is that with this construction it is only necessary to have apertures,
In the prior art we find United States letters patent No. 374,127, issued to O. P. Lochmann November 29, 18S7, application filed September 8, 1887, for “musical box,” and which “has for its object to provide novel means for rotating the circular note plate [disc] of a music box,” and in which the musical disc is supported at the center by a nipple and threaded bolt (the equivalent of the central pin or pivot of the patent in suit), around which it rotates. It is kept in place by a nut, instead of the end of the pivoted rod with friction wheels, and is supported at the outer edge or periphery. Here, at the outer edge (periphery), is located the power by which the disc is rotated, and here such disc is engaged therewith and ro
“The note plate is conducted in a slot on the nipple, e, but on the upper surface of the nipple. The shaft, f [part of the means for .rotating the disc], is in this case provided with a collar, m, lying with an elastic washer, n, upon the note plate [disc], p. In turning the crank [which revolves the shaft, f, which connects with the cogwheel 'or sprocket wheel that rotates the disc], a pressure is exerted on the shaft, f, which pressure is transmitted by the elastic washer to the note plate, p, so that the latter is conducted between the collar, m, and the nipple, e. Any vibration of the note plate is avoided by this arrangement, which, moreover, has the advantage that the note plate can be more easily put in and changed, as after the removal of the crank the note plate does not find any resistance in its periphery.”
There are found in the prior art, and in substantially the same constructions, means to accomplish the same purposes mentioned in the patent in suit. Everything is done in substantially the same way, except to press the note plate evenly by means of the hinged rod with friction wheels. This, in the patent in suit, acts independently of the other elements. It is hinged at one end, and, when in place, fastened or locked to the center pin or pivot at the other. It simply exerts a pressure on the note plate, and serves to insure its contact with the vibrating tongues. It has no other function, and nothing whatever to do with serving or accomplishing the purposes of the patent. Its action is distinct. It does not coact with the other elements of the combination of the patent. I fail to find invention in adding this element to the prior art. We have no new result by so doing — no improved result from the combination.
Attention should be called to the United States letters patent, No. 425,935, April 15, 1890, to Ehrlich — music sheet for mechanical musical instruments. In this we have an arm answering to, and serving the same purpose as, the pivoted arm in the patent in suit, and that patent says:
“Tbe bar, f, is binged at one end to the chest, p, while at the other end it is secured in such a manner that it may with facility be released and lifted in order to allow the disc, a, to be exchanged.”
It seems to me clear that, in view of the prior art, no patentable invention is disclosed in the combination of the patent in suit. I must so find, having in mind the presumption of validity that attends the complainant’s patent, and the necessity for strict and convincing and satisfactory proof of the prior art.
It has well been said, in substance (Lourie Implement Co. v. Lenhart, 130 Fed. 122, 64 C. C. A. 456):
“A copy of the thing described in a patent, either without variation, or with such variations as are consistent with its being in substance the same thing, is for all the purposes of the patent law the same device as that described in the patent. Burr v. Duryee, 1 Wall. 531, 573, 17 L. Ed. 650. One who claims and secures a patent for a new machine thereby necessarily claims and secures a patent for every mechanical equivalent for that device, because, within the meaning of the patent law, every mechanical equivalent of a device is the same .thing as the device itself. A device which is constructed on the same principle, which has the same mode of operation, and which accomplishes the same result as another by the same means, or by equivalent mechanical means, is the same device, and a claim in a patent of one such device claims and secures the other. Machine Co. v. Murphy, 97 U. S. 120, 125, 24 L. Ed. 935.*909 The sliding, slatted, adjustable plate of the appellant, .with.its thickened, flattened lower edge or foot by the side of, and seven-eighths of an inch distant from, the edge of the share of the plow, involves the same principle, has the same mode of operation, and performs the same function — the regulation of the tilting of the plow. — by mechanical means equivalent to the adjustable sliding plate of Lenhart, with its thin edge bent against the plowshare, so that it may slide under its edge when it is depressed below it. One may not escape infringement by adding to or substracting from a patented device, by changing its form, or by making it more or less efficient, while he retains its principle and mode of operation and attains its result by the use of the same or of equivalent mechanical means. Walker on Patents, §§ 347, 348; Sewall v. Jones, 91 U. S. 171, 183, 23 L. Ed. 275; Coupe v. Weatherhead (C. C.) 16 Fed. 673, 675.”
In the patent in suit I find nothing done that an ordinary mechanic skilled in this art would not have done in the exercise of that skill, having the prior art in mind and before him.
The complainant’s patent is invalid, and'the defendant is entitled to a decree dismissing the bill, with costs.
