The talking machine world (Jan-Dec 1906)

THE TALKING MACHIKE WORLD. 5 JUDGE HAZEL'S DECISION IN JONES PATENT SUIT. Court Declares This Process of Duplicating Records Anticipated — Case Court 1. O. Prescott Chats Interestingly of the History of the Case of Great Importance to the Talking Machine Industry. Feb. 19 Appealed to Higher -The Suit at Issue One Judge Hazel, in the United States Circuit Court, New Yorli, handed down a decision in the Jones patent suit brought by the American Graphophone Co. against the Universal Talking Machine Manufacturing Co. and the American Record Co., declaring the patent invalid, inasmuch as the process of duplicating records claimed hy the inventor had been anticipated by the prior state of the art. J. 0. Prescott, of Hawthorne, Sheble & Prescott, sales managers American Record Co., referring to the opinion, spoke as follows to The World: "This is one of the most important suits on talking machine patents that has come before the court in recent years. Particular interest attaches to this patent and the decision because of the prominent position in the trade occupied both by the complainant and the defendants, and the varying effect on the trade in general by a decision favorable to either of the parties in the action. The so-called Jones patent covers many essential features of the process used in the manufacture of discs by all of the prominent manufacturers in flat records in the business to-day. Had the patent been sustained it is believed the American Graphophone Co. could have forced the various companies to discontinue the process. But since, in Judge Hazel's opinion, the patent is invalid, it doubtless opens the field of manufacture to all comers, and will probably result in inducing other concerns to take up the manufacture of discs. "From the early days of the talking machine industry down to 1903, the cylindrical record was most widely known and used, because the wellknown Bell and Taintor patent, covering recording and engraving sound waves on wax-like material, was so broad in its scope as to effectually discourage attempts to manufacture by this or any other method necessitating the use of a cutting stylus. This latter patent was controlled by the American Graphophone Co. A few years prior to the expiration of the Bell and Taintor patent, Joseph W. Jones applied for a patent covering a process for the manufacture of discs of the type at present so well known on the market. It is alleged that the claims in this patent were as broad in their scope as the Bell and Taintor invention, and that had the Jones patent been sustained it would have given the monopoly of the disc business to the American Graphophone Co., to whom this patent was assigned, or to its licensees, as the Bell and Taintor patent enabled them to control the cylinder business. "Among the manufacturers there was much scepticism as to the validity of the Jones patent, and their opinions were backed by large amounts of capital invested by several companies to manufacture discs by processes similar to those claimed in the patent. The first action on this patent was brought in 1901, in the name of the patentee, and was directed against the Universal Talking Machine Manufacturing Co. Later on the American Graphophone Co. acquired title to the patent, and was substituted as complainant. From time to time during the following four years testimony was taken at intervals by both parties. "In May, 1905, the suit was brought for hearing before Judge Piatt. About five months previous, suit had also been commenced by the American Graphophone Co. against the American Record Co., the latter ignorant of the suit against the Universal Talking Machine Manufacturing Co., supposed it had been selected as a defendant of a test case, until it learned in May, 1905, that the test case was about to be tried against the Universal Co. They investigated the defenses opposed by the Universal Co., finding several svhich the American Record Co. had uncovered, but which had not been put in shape for presentation to the court. They prevailed upon Judge Piatt to postpone the trial of the case against the Universal Talking Machine Manufacturing Co. in order that their own case might be proceeded with and their additional defenses de veloped, when both cases should be brought on simultaneously for hearing. "The entire summer of 1905 was spent in the active taking of testimony, both by the American Graphophone Co., and the American Record Co., and all defenses known to the latter concern, including several not interposed by the Universal Co., were set forth at length in the defendant's record, when the cases were finally reached for hearing before Judge Hazel in December last. Judge Hazel's opinion, in surveying the situation, deals with the salient points, as follows: "This invention lias for its particular object a method of duplicating or producing copies of an original sound record of the zig-zag type, whicn was specially adapted for use on a talking machine known as the gramophone, invented by Emile Berliner. At the date of the patent in suit the phonograph, the invention of Edison ; the graphophone. the invention of Bell and Taintor.' and the gramophone, the invention of Emile Berliner, were known to the art and their distinguishing characteristics well understood. Sound records of the Berliner patent consisted of flat zinc records, having etched on their surface a number of inanitely small undulatory grooves of uniform depth representing sound waves. The sound record of the invention adapted for use on talking machines of which Edison and Bell and Taintor were the inventors, consists of cylindrical tablets, having cut or engraved on their surface vertical undulations or irregularities of varying depth. The distinctive proposition of the patentee (Jones), as stated by him, was the process or method of duplicating or multiplying a sound record having lateral undulations of even depth. This object involved the method already known of producing the original or master record', the subsequent steps of making a metallic matrix by electrolysis, separating the same from the original record and thereupon repeatedly pressing the matrix into a suitable yielding material so as to produce a vendable article. . . "The defenses interposed are anticipation, non-Infringement, want of patent ability in that the process described in the specifications is for a mode of operation in which no elemental change is accomplished Oi' chemical action effected. . . . That a sound record of the type in question and the materials by which the result is obtained (except the graving element) separately considered, were familiarly known, is not seriously disputed. Nor was it contended that the patentee was a pioneer in making sound records. Whether the different steps of the process in suit were old must be ascertained by an examination of the antecedent art. Such art as understood by the patentee is stated in the specification. . . . The elicited facts show that the departure of the patentee from the process of Berliner consisted of abandoning the eaching feature and adopting in its stead a method o£ cutting or engraving in a substance of less resistance. "The question is whether Jones discovered a radically different method of duplicating sound methods of zigzag type. ... I am unable to agree with the complainant that cutting or engraving on a cylindrical or wax record, as stated in the Edison ana Gouraud patents (though it may not have been in hard wax) followed by electroplating and using the matrix to duplicate vertical undulations did not suggest the Jones process. . . . The skilled artisan doubtless would have had little difficulty in adjusting the various elements so that a flat sound record of the type In question could have been produced without experimentation or the trials of an inventor. I think it not only indicates that the process described might suljstantially be used by the way pointed out by Jones, but also that they contemplated the application of his Invention to the disk record. "Moreover, that it was old, at the date of the Jones invention, to engrave or cut a sound record of uniform depth directly upon a so-called master matrix, finds support in the testimony of Berliner, isanders and Levy, witnesses for the .\merican Record Co. . . . Referring again to the evidence in the suit against the American Record Co., the document filed in October, 1881, by Bell and Taintor, in the Smithsonian Institute at Washington, specifically refers to the feature of cutting or engraving both the vertically undulating and zig-zag processes and to the duplication of phonograms. "The file wrapper and contents shows that the patent in controversy was rejected about eight times on the ground of want of patentability, in view of the prior patents to Edison, Berliner, Young. Rosenthal and Frank. Bell and Taintor and Gouraud. Subsequently, however, the patent was granted by the Commissioner of Patents, owing doubtless to the earnest and skillful arguments of the counsel. "What the patentee accomplished is thought to fall within the rule laid down in the following cases : Locomotive Works against Jledart, 158 U. S. 68 ; Smith against Nicholls. 88 U.S. 112 : Pennsylvania Co. against Locomotive Co., 110 U. S. 490. Inasmuch as the proofs satisfy me that the patent in suit is anticipated by the prior art, it follows that the bill must be dism'issed with costs." The Universal Talking Machine Manufacturing Co. was represented by Horace Pettit, and the American Record Co. by Edmond Wetmore, president of the American Bar Association, and Samuel Owen Edmonds. The defense was looked after by E. K. Camp, Philip Mauro and C. A. L. Massie. The American Graphophone Co. will appeal the case. RECENT INCORPORATIONS. The Strong & Williams Co., of East Orange, is a corporation which filed a certificate in New Jersey last week for the purpose of manufacturing phonographs and graphophones. Capital, $500,000. Incorporators: James Strong, W. R. Williams, E. Williams, all of East Orange. PROOF That Dovible Service Will Increase YOUR Bvisiness E. R. GUTHRIE Bicycles, phonographs 1540 O STREET International Correspondence Schools, ' ljncoln. Neb.. Jan. 9. 1906. Scranton, Pa. Gentlemen: Replying to yours of 5th inst. regarding my success in selling the I. C. S. Language Outfits will say, there is no other phase of the Phonograph business that has appealed to me as this language system does. The sales are naturally with the more well-to-do people and there is no question of installments to contend v;ith. One can approach the most exclusive people with this language proposition and be sure of a respectful and Interested hearing. By exercising a little judgment in selecting the people to be approached with it the dealer will find almost half of them will become good "prospects." The super-sensitive people who have always said they would not have a phonograph in the house fall right into line and enlarge the field for phonograph sales by a large proportion. A "demonstration" for a prospective customer usually consists in playing one record and having a quiet chat. Occasionally one who has already acquired a literary knov/ledge of a language asks for one of the advanced lessons to.be run. Contrast this with playing "rag-time" for an hour for a lot of gigglers who buy one or two records and the dealer who tries it will surely become a devotee to the language Outfit sales. Nearly every one he shows it to can tell him of some friend who will be interested also. Yours truly, It has increased other dealers' business from 10 to 50 per cent. ! Box 918 To find out wha.t it will do for your business, write to-daLy to i Scranton, Pi.