The talking machine world (Jan-Dec 1908)

THE TALKING MACHINE WORLD. AN IMPORTANT DECISION Handed Down by Judge Hough in the U. S. Circuit Court in the Suit of the Victor Tall<ing iVIachine Co. Against W. J. Hoschke and the Sonora Chime Co. in Which Some Novel Points Are Emphasized. As a number of new points were raised in connection with the suit of the Victor Talliing Machine Co., Camden, N. J., against Wm. J. Hoschke (Sonora Chime Co.), New York, once more charging infringement of the Berliner patent, the full text of the decision is herewith published. The hearing was before Judge Hough, United States Circuit Court, southern district of New York, the opinion being handed down December 27, and is as follows: "The patent in suit is No. 5.34,543, granted to Berliner ; and the infringement asserted is of Claims 5 and 35 — so frequently before the courts of this circuit. The rulings which are the foundation of the decision is Victor Talking Machine Co. against Leeds & Catlin Co., and the contempt proceeding following affirmance of that decree are about to be reviewed in the Supreme Court. "Careful examination of the voluminous record here submitted strengthens the impression, formed at hearing, that this is an endeavor to escape the necessary effect of the decisions of the Circuit Court of Appeals above referred to. While recognizing fully the gravity of the questions now awaiting decision in the highest court, and the novelty in that court of at least two of the questions involved, I am not authorized to indulge in speculations of my own regarding them, but am bound to follow and apply the decisions controlling in the courts of this circuit. It is admitted that these courts have declared the Berliner patent not to have been anticipated nor abandoned, to be patentable and not invalidated by prior use, and not to have expired with the expiration of numerous foreign patents. "The present assertions are : First, that evidence is now offered for the first time tending to show that the Suess Canadian patent (No. 41,901) absolutely expired six years from the granting thereof, whereby the patent in suit also expired ; and, second, that while this circuit has decreed the validity of the Berliner patent, it has never been called upon to interpret its scope. The evidence regarding the Suess patent as a defense is the affidavit of Mr. Walljer of the Canadian bar declaring that In his opinion the effect of not paying the second partial fee provided for by the Canadian Patent Act is to absolutely terminate the patent at the expiration of six years. . It is admitted that this has never been the subject of a decision by the Canadian courts. "It may well be that this is the universal opinion of the Canadian bar, but it does not meet the ruling of Judge Townsend, who held that the duration of the United States patent is limited by the duration of the legal term of the foreign patent and is not limited by any lapse or forfeiture of any portion of said term by means of any condition subsequent. The non-payment of the second partial fee under the Canadian act is clearly a condition subsequent, and the legal term of a Canadian patent is not six, but eighteen, years. It may be that such legal term absolutely ends when the second partial fee is not paid, and that the words 'lapse' or 'forfeiture' would not be used by Canadian lawyers, and a lease may by its language end for nonpayment of rent or other breach of condition ; but such termination does not change the original 'legal term' either of the patent or the lease. Judge Townsend's declaration of the law is not a construction of the Canadian I'atent Act or a declaration of what the Canadian law on that subject may be, but a statement of the law of this country as affected by a Canadian statute, and there is no intimation in his ruling that the result would have been different had the Canadian practice appeared to be as it is now declared to be by the affidavit of Mr. Walker. "As to defendant's second contention, I do not think it true that the courts of this circuit have not interpreted the scope of the Berliner patent. Judge Hazel declared that the lateral undulations in (complainant's) record automatically guide or propel the stylus and diaphragm in its course over the disc, from its outer circumference toward the center, and the stylus travels in an apparently direct radial path, while at tne same instant of time it is pulsated or incited by the sound waves. This is a description of the method of operation of complainant's talking machine. "The principal of operation of complainant's machine, as declared in the same decision, is the 'l9.teral vibration of the stylus point and the propelling of the same over the surface of the record without mechanical assistance and through the means of the groove alone' ; such is said to be the primary object of the inventor ; and again, it is stated that tne 'principle of Berliner's invention rests upon the practicability of propelling the stylus in the groove across the surface of the record without a feed screw or other mechanism.' "It has been thus definitely held that Berliner's invention covers the reproduction of sound by means of a vibrating reproducing stylus, shaped for engagement with the laterally undulated groove of a sound record, and free to be vibrated and propelled by the revolving record itself, without the assistance or guidance of a feed screw or other mechanism. The stylus of the patent being engaged with the spirally shaved groove of a horizontally revolving record, is compelled by such revolution to move in a radial path toward the center of disc and spiral, while its contemporaneous contact with the sides of the disc groove causes a pulsation of the diaphragm and reproduction of the sound recorded by indentations or undulations of the groove walls. "Defendant's machine in every material feature is complainant's, and so is the disc obtained from defendant for use with that machine. The only difference between the two machines is, that complainant's has within its free arm a spring tending to press the stylus against the inner wall of any groove with which it may be engaged, and causing arm and stylus, when disengaged from any groove, to pass the stylus point through the arc of a circle whose radius is the free arm. This is the distinction upon which defendant relies. That it is not a feed screw or other equivalent mechanism seems to me plain. "If a record be constructed with a groove so wide that it is not possible for an absolutely free stylus to engage-jjoth slues of the groove by merely rotating the groovai' disc, it is shown that complainant's machine will not reproduce articulate sound, while the defendant's will reproduce the same provided that the sound record is entirely upon that side of the groove with which the spring aforesaid compels engagement. And the result is the same if the disc be constructed with a wall formed by lowering the plane of the outer edge of the disc ; such wall is in effect the inner side of a groove. In other words, the spring enables a stylus otherwise free to reproduce articulate or musical sound recorded upon one wall instead of two. "But it is also true that the spring of defendant's machine is not strong enough, and evidently not intended to be strong enough, to prevent its use with a disc record of narrow grooving bearing sound markings or indentations on both sides of the groove, and with such records the presence or absence of the spring in defendant's machine makes no difference, as has been demonstrated in the presence of counsel. Were defendant selling a machine containing this spring, together witli wide grooves or wall records with reproducing indentations only upon the side against which the spring presses the stylus, it may be that no infringement would be found ; but when defendant's machine is used in the same way, with the said disc, and produces the same effect by the same means, as does complainant's machine, it is an infringement notwithstanding the spring ; and this is what defendant has done, according to the proof. "It seems clear, therefore, that defendant has infringed complainant's patented combination, and the fact that one element in the combination (i. e., the machine) may be used in combination with articles bearing no resemblance to the other elements of the combination as patented cannot make any difference ; this litigation is not concerned with what defendant might do, but what he has done. He might perhaps have avoided infringement by varying his combination ; so might the defendants in the last case concerning this patent. An injunction may issue as prayed for." Horace Pettit appeared for the complainant and Waldo G. Morse for the defense. When seen by The World, Wm. G. Hoschke, proprietor of the Sonora Chime Co., said: "I am satisfied with the order of the court and will pursue the matter no further. In other words, I propose to drop the case absolutely. Years ago Mr. Hoschke 33 was associated with Mr. Paillard, a manufacturer of music boxes. Paillard made the talking machines at issue and they were imported from Switzerland. TRADE NOTES FROM DETROIT. The Dullness Existing the Closing Months of Last Year Rapidly Disappearing — E. P. Ashton's Views on the Business Situation — Grlnnell Bros.' New Store — Credit Conditions. (Special to The Talking Machine World.) Detroit, Mich., Jan. 7, 1908. The retail talking machine trade was a disappointment in the closing weeks of the year, but even at that was not as much of a disappointment as the less sanguine anticipated. The statement is rather paradoxical, but I believe it conveys the idea. Secretly they looked for a slump, although publicly with all proper spirit they talked otherwise. When they did make the footings at the bottom of the column and found the falling off was less than they expected they were satisfied. All this doesn't mean that business was far behind Decemher of 1906. The merchant looks for a certain percentage of increase every year and that percentage is not up to the mark as far as the retail trade is concerned. One dealer, one of the biggest in the talking machine trade in Detroit, said to-day that the falling off in retail trade was about 20 per cent. Other dealers did not give figures so frankly, but it is fair to assume that the experience of this dealer can be taken as a fair estimate of the business of all. On the contrary the general experience was that there was a very large increase of wholesale trade. The dealer who said there was a twentyper cent, falling off in the retail trade, also stated that the wholesale trade thowed an increase of ninety per cent, over 1906 for the same month. E. P. Ashton, manager of the American Phonograph Co., 106 Woodward avenue, said he believed that retail trade would only "dub along" until after the Presidential election. He said there is nothing unusual in this, as it is the experience every four years. Sometimes the slackening up is only slight, but it is usually felt in some degree. Mr. Ashton stated, however, that the best evidence that the "financial stringency" so called, is not broad in its effect, is that the wholesale business, contributed to by the small towns everywhere, has been steadily increasing. The only flutter seems to have been felt in the cities and even there it has not been so marked but that it might have come at almost any other time without causing great anxiety, except when the country was aroused over developments in the Bast, and prone to attach undue significance to every shortage. Kenneth M. Johns, manager of the Columbia Phonograph Co., 242 Woodward avenue, said that the Christmas business was very satisfactory and that the outlook is good. Good reports of holiday trade also come from the Mazer Phonograph Co., 45 Michigan avenue. One of the features of the Grinnell Bros.' new store building on Woodward avenue, which is nearing completion, is to be a talking machine recital hall, where the puiblic will be invited to listen to all the latest records on the very latest machines. Collections appear to have been satisfactory during the holiday season. Mr. Grinnell said that the money had been coming in -with very little slackening, in spite of the season which is usually bad for collections. Mr. Ashton also stated that the "slow" people had been just a little slower, but that in the main the season did not affect the collections. Mr. Ashton, whose business covers a very large wholesale trade in addition to the big retail business, dwelt at considerable length on the credit conditions in Michigan. "Anyone who is at all clever and wants to beat a man out of his money, can do so with impunity in Michigan," he said. "The law in this state does not effectually protect the dealer. On the retail trade it is all right, because we have the contracts and can get goods back by an inexpensive replevin suit, if the party doesn't pay, but in the wholesale trade, with open accbunts, there is little protection." No. 77 Disc Ca^blnet MR. JOBBER Place your orders for Record Cabinets for next year where you will get the prices and prompt shipments. We keep a large stock on hand at all times and will give you the service you have been looking for. REMEMBER— Not How Cheap— But How Good. See Our Exhibits in January NEW YORK: FURNITURE EXPOSITION BUILDING CHICAGO: Manufacturers' Exhibition Building, 1319 Michigan Avenue The Cady Cabinet Company No. Lansing, Mich.