The phonoscope (Nov 1896-Dec 1899)

The Phonoscope (Copyrighted, 1896) A Monthly Journal Devoted to Scientific and Amusement Inventions Appertaining to Sound and Sight Vol. II. NEW YORK, NOVEflBER, 1898 No. II Hmerican (Srapbopbone Company vs. Battonal (Sramopbone Company DECISION AGAINST THE GRAMOPHONE. Text of Judge Lacombe's Opinion Granting Preliminary Injunction. UNITED STATES CIRCUIT COURT, For The Southern District of New York. American Graphophone Co., vs. In [ Equity, National Gramophone Co., & Ano. | Motion for preliminary injunction on U. S. patent to Bell & Tainter for Improvement in Recording and Reproducing Speech, etc. No. 341,214, May 4, 1886. Lacombe, Circuit Judge. Although the notice of motion embraces claims 19 to 23 both inclusive, complainant has addressed its argument solely to claim 21 — the others may be considered as withdrawn from this application. It is difficult to see upon what theory this Court can assume that Judge Shipman in the case of the same plaintiff vs. Leeds (87 Fed. Rep. 873) held the twenty-first claim not to be valid in view of the fact that the decree in that case expressly declares that the patent is valid so far as that claim is concerned. Nor is there anything in the opinion in the Leeds case which would require this Court to read additional elements into claim 21, thereby making it identical with one or more of the other claims which were also sustained. It seems reasonably clear that this Court did not entirely concur with Judge Grosscup. Certainly it held the claim for the loosely mounted reproducer, or gravity reproducer, or floating reproducer; to be valid; and in disposing of the present motion this must be taken as adjudicated — no new evidence of any weight being introduced. The claim reads as follows: "21. The reproducer mounted on a universal joint and held against the record by yielding pressure, substantially as described." Defendants seek to escape infringement upon the theory that the sinuosities' in their record which preserve and reproduce the sound waves are found in the walls of the groove instead of in the bottom ; wherefore, as they contend, the reproducer is not held with a yielding pressure against the record, but is moved positively by the side walls. A careful perusal of the patent, however, indicates that the word "records" is not used to indicate solely that the particular part of the recording groove whereon the sound waves are recorded by elevations and depressions. Thus referring to the operation of the reproducer the specification says : "No special care is necessary to insure its adjustment, for if the reproducer be allowed to rest against the record with the style upon the engraved line, the style will of itself gravitate to the bottom of the groove." And again : "Difficulties on these accounts are avoided by the loose or flexible mounting of the reproducer, the style automatically adjusting itself to the proper place on the record." The earlierart shows a reproducer held rigidly — the "floating reproducer" was adapted to put itself in place and keep itself in place despite the various disarrangements of parts to which machines of this class are liable. And in defendants' machine this same automatic action is secured in the same way. Resting always on the bottom of the groove the reproducer is always in that part of the groove or record — held there by yielding pressure — where it can be acted upon by the irregular surface which preserves the sound waves, and it would seem to make little difference whether that surface was located at the bottom or at the side of the groove — especially in view of the language of the specification : "The reproducing-style mounted as just explained, is specially adapted for use in connection with a record in the form of a groove with sloping walls and this combination is specially claimed; but it may also be usefully employed in connection with other forms of record." There seems to be no special equity in the circumstance that defendants have not heretofore been disturbed by suit; complainant has evidently been diligent in bringing suit against earlier infringers and was under no obligations to sue everyone at the same time. Upon formally withdrawing the motion as to the other claims, complainant may take an order in the usual form as No. 21. After the order is entered, however, its operation will be suspended until January 25, 1S99, in order to give defendants an opportunity to prosecute and argue an appeal if they be so advised. UNITED STATES CIRCUIT COURT, For the Southern District of New York. American Graphophone Company, Complainant, vs. The National Gramophone Company and Frank Seamann. In Equity Defendant's Brief on Motion for Preliminary Injunction. By Mr. Gustav Bissing. May it please the Court : This is a motion for a preliminar}^ injunction against an alleged infringement of the Bell & Tainter Patent No. 341,214, and more especially of Claims 19 to 23 of said patent, which were recently sustained as valid byjudge Shipman in the case of the American Graphophone Company vs. Leeds (87 Federal Reporter, 873 ), and two of which have been held valid by Judge Groscup in the Amet case (76 O. G., 1273 ; 74 F. R., 789). The validity of these claims, as we understand them to have been construed by Judges Shipman and Groscup is not contested for the purposes of this motion. The points urged by the defendant are, on the other hand, first, the fact that the construction which Judges Shipman and Groscup gave to these claims is such as to manifestly free the defendant's device from their control ; second, that the questions necessary to be decided in order to bring the defendant's device within the terms of complainant's claims, if that were possible, have never been considered by any Court ; third, that there is no infringement of complainant's claims, however construed, and, fourth, that under all the circumstances of the case, which will be set out at large, the grant of a preliminary injunction would be inequitable. In order to properly understand the scope of the claims of the patent on which an injunction is asked it will be necessary to consider, briefly, the improvements which these claims are designed to cover, and to do this we have to consider the prior art. The Edison Phonograph, as pointed out in Judge Shipman's decision, embodies a machine which both records and reproduces speech. The record, in this case, was made by indenting it upon the surface of a yielding material, such as paper saturated or coated with something like paraffine and covered by a sheet of tinfoil. The tinfoil received an impression from an indenting point secured to the centre of a rigidly-mounted diaphragm. The difficulty was that the material of the tinfoil was pliable and that the indenting point bent the tinfoil down and around the point ot contact and thus distorted the indentations. Besides, the record is said to have been perishable and easily obliterated and easily injured when removed from the machine, and after a short time the indenting process fell into disuse. Nevertheless, we have in Edison a record adapted for reproducing sound, in which the sound is represented by a groove with an undulating bottom, which undulating bottom gives motion to a sound-reproducing stylus in a direction perpendicular to the face of the record. Bell & Tainter improved this device of Edison into the well-known Graphophone. They did this by discarding the tinfoil and using instead a wax or wax-like material into which the record was engraved or cut by boldly removing chips of the substance of the material, as distinguished from the process of indentation as used by Edison. The wax or wax-like material was, on the one hand, supposed to be soft enough not to offer any undue resistance to the engraving or cutting stylus in the act of recording sound, and was, on the other hand, considered by them so hard that the record should not be readily injured or be readily worn out by the reproducing stylus in the reproducing operation. The sound record on the wax cylinder of Bell & Tainter is found at the bottom of the record groove, just as in Edison. So, too, the vibrations are imparted toastjlus in a direction perpendicular, to. the surface of the record cylinder, just as in Edison. The operation of reproducing sound with Bell and Tainter's wax-like cylinder and with Edison's tinfoil-covered cylinder is precisely the same. Nevertheless, the difference in the material used by Bell and Tainter, wax as against tinfoil, and the difference in the method of cutting the record as distinguished from indenting it, have been held, so far as the question has yet been litigated, to have created such an advance in the art as to entitle the wax cylinder of Bell and Tainter, carrying their engraved sound record, to be regarded as a useful invention. As such it has been sustained by Judge Groscup and by Judge Shipman in the cases above referred to, and by Judge WHEELER in the case of the American Graphophone Company vs. Walcutt, 87 Fed. Rep., 551. ' There was another thing necessary to be done in order to make the Phonograph of Edison successful as a reproducer of speech, and what this was will best appear from a study of 'the shape of the record grooves of Bell and Tainter's wax cylinder as manufactured by the complainant. A photograph on a very much enlarged scale, obtained by a process of micro-photography, is appended to the Lyons affidavit and is marked "Chapman" Microphotograph Graphophone Grooves." This photograph, it is to be understood, shows the appearance of the grooves of the Graphophone wax cylinder as they appear in cross-section, the cut being made not in the direction of the length of the grooves but across a number of consecutive grooves at right angles to the grooves, and in a direction parrallel to the axis of the cylinder. The photograph shows that these grooves are exceedingly shallow and very broad in comparison with their depth. It furthermore shows that there are ridges between the grooves about as well defined as the grooves themselves, the sides of two adjacent grooves, in fact, coalescing into a more or less sharply defined ridge. At this point we wish, once and for all, to insist upon a matter which completely disposes of com