275 F. 444 | W.D. Mich. | 1920
Lead Opinion
This suit is for infringement of two patents, No. 814,786 and No. 814,848, both issued March 13, 1906, to the plaintiff as the assignee of the inventor, Eldridge R. Johnson, also president of the plaintiff company. The original application was filed
“42. A talking machine, comprising a tapering sound conveyer, means for attaching sound-reproducing means to the small end thereof, and horn-coupling and supporting moans with which the other end of said conveyer is movably connected.”
“7. An amplifying horn, comprising a continuously^ tapering tube having a joint to allow a movement of one end of said horn in relation to Hie other, said horn being supported at said joint.”
“11. An amplifying horn, comprising a tapering curved tube, said tube being pivoted on a substantially vertical axis to allow a horizontal movement of the smaller end of said tube, the curved portion of said horn connecting sections thereof lying in substantially parallel planes, said axis passing through or adjacent said curved portion.”
The defenses relied upon are: (1) That the claims declared upon are invalid for want of invention; (2) noniuirLigement; and (3) laches.
2. Infringement.—Qaim 42 reads definitely, specifically, and literally upon defendant’s talking machine. The “tone arm” or “sound conveyer” of defendant’s machine is tapering, its small end is attached to
It is also clear that claim 11 is not infringed. This claim calls for “a tapering curved tube, * * * the curved portion of said hom connecting sections thereof lying in substantially parallel planes.” The connecting portion of the tube of defendant’s machine is not tapered and is not curved. The lower turn or bend of the tube is at the junction of two straight sections and is abrupt and forms a right angle. There is no evidence tending to indicate the adoption 'of this form of sound conveying tube for the purpose of avoiding infringement. The designer of defendant’s machine, who is both a noted and accomplished musician and has had long experience in the construe
If the question of infringement of claims 7 and 11 were otherwise doubtful, all doubt is removed by an examination of the specifications of the patents in suit, from which it appears that the curvature and continuous taper of the sound-conveying tube of the amplifying horn are prominent and basic features and elements of the invention. The patentee says:
“By locating the small end of the horn in this manner so that the sound-conducting tube or horn flares outwardly practically from the sound box, I. have found that it allows the sound waves to advance with a 'regular, steady, and natural increase in their wave fronts in a manner somewhat similar to that of the ordinary musical instruments, thus obviating the well-known disadvantages due to long passages of small and practically constant diameter. It is also desirable to avoid abrupt turns in the sound-conducting tube or passage.
“It is therefore tho object of my invention to provide a talking machine with a-i amplifying horn meeting’ these requirements. ’'s ° ®
“It is further to be noted that I have avoided to the greatest degree any abrupt turns. s' '' I have produced, in effect, a sectional horn tapering from end to end.”
“The object of this form of my invention is to provide an amplifying horn 0 of such a character that the same will have all the material advantages of a single horn connected directly to tho sound box, but without having the disadvantages due to long passages of small and practically constant diameter, to the weight of the bell portion of tho amplifying horn, and to abrupt turns in connecting tubes.”
“The fact that all portions of the conducting tube or horn are tapered allows the sound waves to advance with, a regalar and natural increase in their wave fronts in a, maimer similar to that of ordinary musical instruments, obviating the disadvantages due to long passages of small and practically constant diameter having abrupt turns.”
A decree will be entered finding claims 7 and 11 of patent No. 814,848 valid, but not infringed, and claim 42 of patent No. 814,-786 valid and infringed, granting an injunction; directing an accounting, and referring the case to John S. Lawrence, master in chancery, for such accounting. Neither party will recover costs.
Rehearing
On Rehearing.
Cannevel’s invention,. as indicated hy the title, illustrated by the drawings, 'described in the specification and defined in the single claim of his French patent, No. 307,593, resided in and related to the “sound box,” and not to any part of the amplifying horn of a talking machine. So far as appears, he had no conception of Johnson’s two-part, U-shaped, tapering amplifying horn and its resultant advantages. His sole consideration was the avoidance of restriction or choking in the “neck” or short connection between the diaphragm and the straight megaphone horn of the prior art. At most, his device corresponded to the single element of the combination of claim 42 of patent No. 814,786 described as “means for attaching sound reproducing means to the small end” of the tapering tone arm part of the amplifying horn,
The former decree in this case will stand as the decree upon rehearing. .