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. III. NEW YORK, FEBRUARY, i899 No. 2 Bmerican (Brapbopbone Company vs. national Gramophone Company UNITED STATES CIRCUIT COURT, For the Southern District of New York. American Graphophone Com ) PANY, Complainant, B VS. > Equity The National Gramophone Com V pany and Frank Seamann. \ Defendant's Brief on Motion for Preliminary Injunction. By Mr. Gustav Bissing. (Continued) Section 2. We are now in a position to ask upon what theory the complainants hope to succeed with their motion for preliminary injunction. The answer is plain. The complainants have lost sight of the principle of law to which we called attention at the close of the last section of our brief. The affiants of complainants, in fact, take substantially this position. They say, here are certain claims, six in number, which Judge Shipman has sustained. These claims, when broadly construed are, they assert, broad enough to cover the Berliner Gramophone. Therefore they say the Gramophone is an infringement of the Bell and Tainter Patent. The answer to this contention is that all this might be very well at final hearing, at which the complainants are, perhaps, not barred from trying to obtain a broader construction of their claims than any they have heretofore succeeded in obtaining, provided they can succeed in so doing against the defendants' opposition and in view of all that the defendants may show as to the state of the art. But for the present purpose, we again insist that the only construction of their claims which the complainants are entitled to assume is that given to them by Judges Shipman and Groscup, and under such construction it is clear beyond the shadow of a doubt that the defendants do not infringe. Without taking up the affidavits of the complainants' experts seriatim and without analyzing their various statements, point by point, we may say in brief that they attempt to establish the following facts : first, that the groove of the Berliner Gramophone record is V-shaped and that the stylus is laterally adjusted therewithin ; second, that the stylus of the Berliner Gramophone bears with a yielding pressure against the record; and, third, that the lateral motion of the mounting of the stylus in the Gramophone permits of its adjustment against any lateral inequalities which might be due to a departure from a truly mathematical construction of the machine, and that the vertical motion of the mounting for the reproducing stylus for the Gramophone permits of an adjustment for the warping of the hard-rubber record plates, in case they should not be rotating in a mathematical plane. Now, as to the first of these alleged facts we beg again to say that the Berliner Gramophone record has no V-shaped grooves, and certainly no V-shaped grooves in the sense in which this word would have to be used as applied to the Bell & Tainter Graphophone. The form of the Gramophone^grooves in cross-section is U-shaped, if anything, having very steep walls, which cannot be called sloping walls in any functional sense ; furthermore, these grooves are so narrow and their sides so precipitous that there is no question of adjusting the stylus laterally within the groove, but simply a question of letting the stylus drop into the place it belongs, which is one "place and only one place. We cannot insist too frequently that the cup-shape or pit-shape character of the cross-section of the Gramophone grooves and the corresponding shape of the stylus and the steep walls of the grooves make it impossible to talk of any lateral adjustment of the stylus within a groove. It would be just as possible for a man to talk about automatically adjusting an apple to his side coat pocket when he dropped the apple into his pocket. On the other hand, there is a very definite meaning when we talk about the adjustment of the Graphophone stylus within the Graphophone groove, for here, if we have not V-shaped groove, we yet have a groove with two straight sides meeting at a very obtuse angle, the side walls being, in consequence, of an exceedingly gentle slope, so that the Graphophone stylus has many places at which the friction will hold it at rest, unless it be tapped or jarred by the movement of the cylinder so that gravity will carry it down to the bottom of the groove. There is no place on the steep side walls of the Gramophone record where friction could have any effect in holding the stylus in place. Going to the second alleged fact — the alleged yielding pressure of the Gramophone stylus against the record — we' need only say that since the record in the Gramophone is found on the side walls of ths grooves, and since the weight of the mounting is carried by the point of the stylus resting in the bottom of the groove, which bottom is even and not undulating, that there is no pressure exerted between the side walls of the record groove and the side faces of the stylus — that is, no pressure between the stylus and the actual record. The only way this could be brought about would be by using a blunt-pointed stylus which did not loosely fit the record groove, but which jammed therein. Just in so far as this is done, however, just in so far will Gramophone sound reproduction be prevented. The conditions in the Gramophone — those which are aimed at and those which are obtained with substantial perfection in the machines on the market— are conditions in which there is no pressure between that portion of the stylus which is in touch with the laterally undulating record and the laterally undulating record itself. There is no difficulty in attaining this result, in practice, because it is merely necessary to have a stylus which shall loosely fit the record groove. This condition being obtained, the stylus is vibrated by the side walls of the record groove in exact accordance with the undulations on these side walls, positively in both directions. There is, under such conditions, no departure from a true correspondence between the undulations on the record and the motion of the stylus which would be caused if the friction due to an initial pressure between the sides of the stylus and the side walls of the record groove had to be overcome. In other words, the very feature which it is aimed to remove and which is removed in the Gramophone reproducer, namely, the initial pressure between the undulating record and the stylus is the feature which is absolutely necessary for the operation of the Graphophone in which the stylus rests by yielding gravity pressure against the undulating bottom of the record groove, and in which sound is reproduced by reason of this pressure. This initial pressure or gravity pressure between stylus and record, which is absent in the Gramophone, is the point of the Graphophone which, in combination with the wax -like record, is covered in the complainant's claims now under consideration, for they state, for instance, that there is a "rubbing" style employed, meaning a style which has an initial frictional pressure against the record. As to the third alleged fact, we may merely say that if the Gramophone reproducer of Berliner utilizes the lateral and vertical adjustment of the mounting for its reproducer arm to overcome or to adjust for any departure from a strictly mathematical construction of the various parts of the reproducing machines, such, for instance, as a warping in the plate, that we know of no claim of Bell & Tainter which can prevent this. The idea of using a lost motion device for overcoming departures from an exact mathematical construction of machinery is so old and common in the art that no one can obtain a monopoly for its use. It is one thing to say that Bell & Tainter have a claim which covers a flexible or lost motion mounting for a stylus, which co-operates in an especial way with an especial shape of the sound record groove for a definite purpose to adjust the stylus automatically to the bottom of the groove, and it is an entirely different thing to say that these patentees have a claim that will prevent builders of sound reproducing machinery from employing a lost motion device, not to effect this specific purpose but to effect the ordinary and old purpose of lost motion devices, namely, to overcome departures from exact mathematical constructions inherit in commercial machines. One thing is certain, Bell & Tainter have never yet established their right to such a claim in any Court, and if they should attempt to establish such a claim in the present suit at final hearing, they will find that they will have to overcome a prior art very different to that they have heretofore had to overcome in establishing their claims to their peculiar kind of a lost motion connection for effecting the peculiar adjustment repeatedly pointed out, when used in combination with their peculiar shaped record grooves. We maintain that their claims are not capable of such broad construction. We protest against assuming in advance that they will succeed in establishing any such broad construction for their claims. We insist that they have as yet established