The Billboard 1907-03-23: Vol 19 Iss 12 (1907-03-23)

6 The Billboard MARCH 23, 1907 Decision in Moving Picture Case. Affects Far-Reaching—Unexpectedness of the Finding by Circuit Court of Appeals Throws the Manufacturers of Moving Picture Films into Consternation.__ The Court’s Finding in Detail. HE victory of The American Mutoscope and Biograph Company in the case decided last week by the United States Circuit Court of Appeals, was also a victory for the Edison Manu facturing Company, appellant in the suit; for while the Mutoscope and Biograph Company is exculpated from the charge of infringement, the court decided that the Warwick Camera is an infringement on the Edison patent. After moving picture makers in the United States are using the Warwick camera, an English invention, The American Mutoscope and Biograph Co, being the only exception. The de cision of ithe court is to the effect that the Warwick machine is an infringement on the Edison patents. This decision is final. There is no appeal from it and under its terms the Edison Co, may proceed against all moving picture makers except The American Mutoscope and Biograph Co. and compel them to make an accounting of all business done by them in which they used the Warwick machine. ‘The ddison Co.‘may, if it so elects, compel all moving picture makers using the Warwick machine or a machine that infringes upon the sprocket device covered by the Edison patents, to cease making moving pictures. Moving picture manufacturers of the United States are fully awake to the meaning of this decision. It is a great surprise to them because they did not anticipate such an outcome of this case. It was the firm belief of every one that the Circuit Court of Appeals would decide that the Warwick machine was not an infringemtnt of the Edison patents, or rather that the Edison patents had no priority over any other moving picture camera. So firm were they in this belief that many of them have gone to great expense in erecting plants for the manufacture of moving pictures and a number of firms have been recently formed, have built factories and purchased machinery in anticipation of a favorable dicision. As things have turned out all this outlay is a dead loss as there are practically but two machines im this country thnt ean be used for making moving pictures and these are controlled by the Edison Mfg. Co. = by The American Mutoscope and Biograph Believing that the Court’s decision will be of interest to The Billboard’s readers, we reproduce it herewith. United States Oircuit Court of Appeals, Sec ond Circuit. Before Wallace, Lacombe and | Coxe, Circuit Judges. Thon nas A. Edison, Complainant—Appellant. | vs. The American Mutoscope and Biograph Company, Defendant—Appellee. This cause comes here upon appeal from decree of the cireuit court, Southern District of New York, dismissing a bill im equity for infringtment of a patent. e patent is Reissue No. 12,087, dated September 30, 1902, original No. 589, 168 (August 31, 1897) to Thomas A. Edison for a kinetoscope. The opinion below will be found in 144 F. R. 121. The original patent was before this court in a suit by the same complainant against the same defendant, reported 114 F. R. The claims of the original patent were “l.—An apparatus for effecting by photography a representation suitable for reproduction of a scene inchiding a moving object or objects, comprising a means for intermittently projecting at such rapid rate as to result in persistence of vision images or successive positions of the object or objects in motion, ag observed from a fixed and single point of view, a sensitized tape-like film and a means for so moving the film as to cause the successive images tto be received thereon separately and in a single-line sequence. “2.—An apparatus for takin otogra: suitable for the exhibition of I ae in = tion, having in combination a Single camera, and means for passing a sensitized tape film at a high rate of speed across the lens of the camera, and for exposing successive portions of a \ in rapid succession, substantially as sett orth. ‘3.—An apparatus for Suitable for exhibition of having in combination a taking photographs obiects in motion. cn single camera, and ans for passing a sensitized tape-fil cross the lens of the Ga ee ae and with an intermittent motion. and for ex posing successive portions of the film during the periods of rest, substantially as set forth. **4.—4An apparatus for taking photographs Suitable for the exhibition of objects in motion having im combination a single camera, and means for passing a sensitized ttepe-film across the lens at a high rate of speed and with an intermittent motion, and for positions of the film during the periods of rest, the periods of rest being greater than the periods of motion, substantially as set forth. ‘S.—An unbroken transparent or translucent tape-like photographic film heaving thereon equidistant photographs of successive positions exposing successive of an object in motion, all taken from the same | point of view, such photographs being arranged in continuous straight-lime sequence, unlimited in number save by the length of film, substantially as described *“6.—An unbroken transparent or tran<hicent tape-like photographic film provided with perforated edges and having thereon equidistant photographs of successive positions of an object in motion, all taken from the same point of view, such photographs being arranged tn a continuous straight-line sequence, unlimited in namber save by the length of the film, substantially ag described.’’ In the prior suit the circuit court sustained claims 1, 2, 3 and 5 and those only came before this court upon the appeal. It was held that the patentee was not entitled to such broad claims, the decree of the cirenit court was reversed and the bill dismissed, Thereupon the patentee applied for and obtained a re issue, in two patents, one for the film as a| first three are as follows: motion, having in combination a camera having tape-film supported longitudinally movable with respect to, the lens, feeding devices engaging mediate section of the film and moving the same across ithe lens of the camera at a high rate of shutter exposing successive portions during the periods of rest, substantially as set apparatus for taking photographs suitable for the exhibition of objects in motion, having in combination a camera having a single stationary lens; a single sensitized tape-film supported on opposite sides of, rotating driving-shaft; vices operated by said shaft engaging such termediate section of the film and moving the rate of speed and with an intermittent motion; and a continuously-rotating shutter operated by said shaft for exposing successive portions the film during the periods of rest, substantially apparatus for teking photographs suitable for the exhibition of objects in motion, having in combination a camera having a single supported on opposite sides of, and longitudinally movable with respect to, the lens, and heving intermediate section crossing retating driving-shaft: vices operated by said shaft-engaging such termediate section same across the lens of the camera mite of speed and with an intermittent motiot; shutter exposing successive portions of film during the periods of rest; with variable speed for thereon after exposure, stantially as set forth.’’ of the reissued patent the fourth chiim of the original. infringing devices, the same device that | before the court in the first suit and is known jas the Biagraph camera; the other alleged ,camera and it is contended infringes also chrim 4. Gifford & Bull for complamant. Upon tthe appeal in the first suit we discussed the prior art and the general character of the eussion; all that was seid in the prier opinien, as embodied herein, hereinafter expressed founded wpon the findings then made and whic was not the inventor of the film He was not the first inventor of apparatus caps ble of producing suitable negatives, practically a single point of view, ~ |} pulley 18 turns the take-up reel means of rotating inventor of apparatus suitable negatives | reans for passing @ sensitized surface across a high rate of speed and lens camera at a | successive portions of the surfaces during per \if it invelved invention as distinguished from camera at a b speed | heme a high rate of speed orgnnization, by which the capacity land moving devices are angmented and lone for reissue umier Sec the | type of apparatus patent was thus which light will be excluded except the feed wheels for positively advancing the film When the film is narrow, it is not essential to use two rows of perforations and two feed wheels, one of such rows and one feed wheel being sufficient. The two feed wheels are carried by a shaft and engage the film on one side of the camera opening. The power is supplied by an electric motor, which drives a rotating shaft carrying the feed wheels through a pulley held in frictional engagement with the feed-wheel shaft. The take-up reel, or the reel which receives the take after pass ing the feed wheels is controlled by a stop shaft through a pulley which ix frictionally mounted upon the reel shaft. The shaft carrying the feed wheels is controlle dby a stop or escapement movement, which is driven positively by another shaft, so that, although the motor tends to drive the feed wheels continuously, they are only permitted to turn with an inter mittent motion by the stop or escapement device, the pulley which drives the feed wheels slipping on the feed wheel shaft, while that shaft is held at rest by the stop or escapement device. A shutter consisting of a rotating disk having an opening in it is mounted directly upon the motor shaft and revolves past the lens, so that the light from the lens is intermittently thrown upon and cut off from the sensitive surface of the film The camera is shown as a single lens, and is arranged to project the image of the scene being photographed upon the film when the openings of the shutter disk are opposite the aperture between the lens and the film In operation the apparatus is first charged with a _ tapefilm several hundred, or even thousands, of feet in length. The specification states that the parts are preferably proportioned so that the film is at rest for nine-tenths of the time, in order to give the sensitized film as long an exposure as practicable, and is moving forward one-tenth of the time, and that the forward movement is made to take place thirty or more times per second, and preferably at least as high as forty-six times per second, although the rapidity of movement or number of times per second may be regulated as desired to give satisfactory results, and there should be at least enough so that the eye of the observer can not distinguish, or, at least, can not clearly or positively distinguish, at a glance, the difference in position occupied by the objects in the successive pictures.’ The securing of intermittent action to the parts which engage the film is effected by cer tain stop devices, the details of which need not be inquired into; they are equally adapted to other uses than those shown in the patent and are the subject of a separate patent to Edison No. 491,993. The important distinctive feature is the manner in which these inter mittently moving parts handle the film In addition to the references in the earlier case, there are a number of patents introduced here of which it is sufficient to say that we concur with the judge who heard the cause at Circuit that the apparatus described in the patent exhibits patentable novelty. Such novelty, however, can not be predicated solely on the cireumstance that the intermittently moving parts operate directly upon the film; the meritorious | feature of the device is that they seize hold of the film firmly, move it positively, regularly, evenly and very rapidly without jarring, jerk ing or slipping. producing a negative, which cen be printed from and reproduced as a whole without re-arrangement te correct imperfect spacing of the successive pictures The specifi jeation states that when the film is clamped in the delivery case “‘the loose pulleys 7 1S sn withowt polling said film along."" and that when the film is released from that clamp ‘‘the pulleys operate to pull the same along."’ Loose and it has been suggested that the phrases quoted imply that such reel is in fact the feeding mechan ism A careful study of the patent has sat isfied us that this is not so. The specification explicitly states that the ‘‘teeth of the wheels 5 enter the holes along the edges of the film for the purpose of positively advancing the film.’’ The organization described shows that the sprocket wheels are adapted to push the film along as they revolve as well as to hold it back when they are at rest The dis tance to be moved for each exposure is so short (an inch that the flim can apparently be moved forward by pushing as well as by pulling since t? guard or guide through which t moves protects t ngainet buckling While the film may at times be practically tense between the intermittently moving sprocket wheels and the take-np reel, it would seem that operation at high speed would soon produce a slack or loop between the sprocket wheels and the delivery reel aml the evi dence of complainant's expert shows that itn practice this is «o The specification states that when the film is narrow, it is mot essential to use two rows of perforations and two feed wheels but at least on sprocket wheel and one row cof perforations are essential to the organization described In snecession each aprocket enters a hole thereby firmly and positively and neither advancing it forward or holding it at rest by a method of engagement which eliminates all chance of slip The engagement between the feed wheels and the film is not frictional; the film ts tinuously held by the interlocking of and a hole ax one sprocket holding the film con a sprocket leaves a hole the next succeeding sprocket enters the next sue ceeding hole Irreapectively entirely of any jaction of the takenp reel the film must ad |} vance as the aprocket wheel moves, and can not vivance when the eprocket wheel Complainant's expert has operated constructed in enhetantial in at rest a camera accordance with the specifications, and from which he had removed | the take-up reel He found that the sprocket | wheels alone moved the Intermediate rection requisite of film acrows the camern at the high rate of speed, and with the intermittent | motion In the defendant's Elograph Camera, there ' ’ 1 reelx ond devices for giving to some parts of the apparatus a continuous to others an intermittent motion The ‘ints mediate section’’ of film is moved across th: lens by two friction rollers located just tx yond the film-guide, these move continuously and draw the film forward. The mechanism for holding the same stationary during exposu is stipulated in the record “Mounted upon the motor shaft N is a grooved cam n imparting movement to an arm n’ (which arm rocks shaft n2) . . Loosely mounted upon the jour neal n& (of the rock shaft) is a tension leaf W. forming part of the film slide or film guide) F The film B passes between th tension leaf and the back plate f of the guile bie nS designates a projection mounted upon the rock shaft n& and co-acting with the ten sion leaf W to throw the same away from the back plate, and, therefore, out of engagement with the film, when a portion of the film has been exposed, and it is desired to again move the film relatively to the lens. The rolls, which draw the film, rotate constantly, and would feed the film past the lens with a continuous motion, were it not that the film is gripped by the tension leaf momentarily to admit ex posure.’’ Figure 5 of the drawings of Defendsut's Biograph machine will facilitate the understanding of this description It will be observed that there is a part marked né@, called a ‘“‘punch,”’’ which might be supposed to have, in part, the function of com plainant’s sprocket, holding back the film by interlocking engagement, This is not s0, as will be seen when the necessity for using a punch is pointed out later on The engagement of defendant's moving parts with the ‘“‘intermediate section’’ of fila s wholly frictional; there is no such interlock ing as will hold the film firmly, advancing it with mathematical accuracy precisely the same distance between exposures, makes its motion absolutely coextensive with that of the sprocket wheel from the beginning of the operation to the end, and thus securing a perfection of spacing of the negatives upon the exposed film It is apparent that in defendant's engage ment there is the possibility of ‘“‘slip;"’ and it might be expected that the likelihood of such action would be increased by the ex tremely high speed at which these machines are run, giving twenty or more exposures per sec ond. his, moreover, is not a matter of con jecture, there is positive proof Marvin. whe has had large experience in operating defend ant’s machines, testified: “Negatives, to my knowledge, are never 1 exhibited in public In order to exhibit «4 picture, it is necessary to print positive repre duction The apparatus in which such pos! tive reproductions are printed can readily arranged so that the pictures upon the positive strip of film are uniformly spaced, although the pictures upon the native strip may be very unevenly spaced As a matter of fact, none of the cameras of our company produce uniformly-spaced negatives. In the manufacture of our mutoscope pictures the positive pictures are printed upon bromide paper and the pap is cut up so that each piece of paper carries an independent picture.”’ It is solely to facilitate this operation that the punches are brought into the combination The film bas no holes along its edges, as | leaves the supply-reel; they are punched tn only at the moment of exposure, The stipulated scription reads: ‘“‘Secured to the rock shaft n2 are two punch arms n8 at the outer ends which are mounted punches n4@, . . . The film B is perforated in its passage between sal’ tension leaf and back plate by means of the punches n4@, . . The film is gripped by the tension leaf momentarily to permit exposure During this gripping interval the punch n4 is actuated to perforate the film opposite each exposed portion, and at or adjacent to each of the film." The use of the perforations as an aid to correcting the results of laverfect spacing |5 shown in the testimony of Johason, superinten dent of defendint’s photographic department “The feed in the bilograph cimera is by friction rollers, and the feed is tolerably regiar so long as the film is of one thickness and so long as all the adjustments on the machine are kept In first-rate cond'tion, As 4 matter of fact, however, the film varies very considerably in thickness, and the feed ts ty no means regular, varying from throesixteentis to fivVe-sixteenths of an inch in some Cures The normal, proper feed .« one-quarter of inch It would not be possible to eat properly a positive facsimile of the veg film which our company's (Riograph) cs produces “Q. 21. Please explain how defendant pany prepares the films and prints from = th: negatives which are used In the exhibiting ‘ chines? “A. The camera is provided with a pal punches and dies, which are brought jiuto ¢ tion and perforate the film duriag the j of exposure rhe perforations ace situated a blank space underneath the picture prow and always bear a fixed relation to the pl itself, so that these holes being fitted dowel pins in our printing machines, ene us to print a pleture which shall be perf in register with every other picture, trres; tive of the spacing in the negative film The spacing of the pletures on the positiy film, made by our company is such that th scenes which the photographs represent) Wi!) not be properly produced by simply passing (+ film through the Biograph.’ tecause of these differences In parts a action and in result, we are of the opin that the defendant's Biograph camera is pet the type of apparatus described and shown |" the original and re-issued patent The lan wiuage even of the re-issued claims, consid ered by iteelf and giving no force to the words substantially as set forth,’ may be broa! enough to cover It, but that Is not suffictent Infringement should not be determined by * mere decision that the terms of a claim of ®