The talking machine world (Jan-Dec 1909)

36 THE TALKING MACHINE WORLD. JONES PATENT AGAIN DECLARED VALID. For the Second Time This Important Patent, Which Covers the Process of Duplicating Disc Talking Machine Records, by the Electrotyping Process, Has Again Been Sustained by the U. S. Circuit Court of Appeals — A Great Victory for the American Graphophone Co. For the second time the Jones patent, No. 688,739, issued December 10, 1901, covering the process of duplicating disc talking machine records by the electrotyping process, has been sustained and declared valid by the United States Circuit Court of Appeals, New York City, the unanimous opinion of the court being handed down April 14. The previous findings of the same court in the case of the American Grapho: phone Co. against the Universal Talking Machine Mfg. Co., joined with the American Record Co., were filed January 14, 1907. On August 24, 1908, Judge Hough decided the patent void, in the suit of the American Graphophone Co. against the Leeds & Catlin Co., New York, holding that an English inventor anticipated tBe patent in issue. This opinion the Court of Appeals reversed. The decision is of a broad and sweeping character and finally adjudicates the Jones patent. After reciting the history of the suit and quoting the specifications, Judge Coxe says, in part: "The Circuit Court decided that the patent was anticipated by the Adams-Randall British patent, No. 9996, of July 10, 1888. The court also decided that the first method admitted by the defendants, viz.: 'Copying or reproducing and multiplying by familiar electro-metallurgical process, records bought in foreign countries and lawfully imported into the United States,' did not constitute infringement, but that discs made by the second method adopted by the defendants did infringe. "The only debatable question, therefore, left for decision is whether or not the Jones patent is anticipated by the Adams-Randall disclosures. * * * Can it be said that this describes the Jones invention in such full, clear and concise terms as to enable a person skilled in the art to produce a commercial sound-record by the Jones method? We think not, and this conclusion is confirmed by an examination of the drawings and other portions of the Adams-Randall patent. It may be conceded that when AdamsRandall wrote the language (in the patents) he was possessed of an idea of some kind, but neither an idea nor a thought is patentable and neither can anticipate a patent. Assuming the existence of the idea, what was it, how was it to be carried out, and what was the result produced? The patent fails to answer with any degree of definiteness. A valid patent should not be destroyed by a vague, confused, indeterminate document. "If to-day a skilled artisan, who had never heard of the Jones or Adams-Randall patents, were given a Jones disc and the Adams-Randall patent, and directed, after reading the patent, to construct similar discs, we doubt whether he would be able to do so. "Is not the fact that the patent was never heard of, until it was resurrected for the purpose of this litigation, persuasive evidence that it contained nothing of value to the art? It deals with laterally grooved sound-records made by a revolving cutter or burr vibrating in hard material, so hard, indeed, that sound, it is said, can be reproduced from the originals. The patent does not suggest the use of the electroplate matrix as a die, but provides for coating the cylinder with copper, nickel or other tenacious metal to make it durable. In short, we are unable to see that Adams-Randall's contribution to the art advanced it a single step. "The burden of proving anticipation by clear and convincing evidence rests heavily upon the defendants. We cannot avoid the conclusion that the sanguine and optimistic view taken by the defendants of the Adams-Randall patents is not justified by anything found in the patents themselves. The patent upon which the chief reliance is placed fails to give a clear statement of the method of producing the Jones disc. The naked assertion that a certain result has been accomplished without stating how, without describing the means which produce the result is insufficient as an anticipation. "The most favorable view for the defendants is that the question of anticipation by the AdamsRandall patents is involved in doubt, and this is fatal to their contention. If the process pursued for its development failed to reach the point of consummation, it cannot avail to defeat a patent founded upon a discovery or invention which was completed. * * * The law requires not conjecture but certainty. It is unnecessary to discuss the other alleged anticipating patents and articles said to appear for the first time in the present record. They add nothing of importance to the controversy. In other words, if the references discussed by this court upon the former appeal plus the Adams-Randall patents are insufficient to destroy the patent in suit, it is manifest that the alleged new references are equally ineffectual. "As before stated, we hold that the second method adopted by the defendants, and admitted by them in their stipulation to have been practiced prior to the commencement of the suit, constituted an infringement of the claims of the complainant's patent. It would seem that nothing further is required. Where a patent has been declared valid and infringed, a decree follows as a matter of course. As the Circuit Court has twice decided, once on a motion for a preliminary injunction, as we understand it, and again at final hearing, that the first process employed by the defendants does not infringe, we should hesitate long before reaching a different conclusion. It is, however, for present purposes sufficient to say that the complainants' proofs and the defendants' stipulation as to their second process amply sustain the charge of infringement. The decree is reversed with costs of this court and the cause is remanded to the Circuit Court with instructions to enter the usual decree in favor of the complainant." The counsel appearances were Philip Mauro and C. A. L. Massie for the American Graphophone Co., and Louis Hicks for the Leeds & Catlin Co. A petition to the Supreme Court of the United States for a writ of certiorari, which acts as a stay, was filed May 17. The motion is either granted or denied without argument. Judge Lacombe on April 17 signed an order,' by consent, reinstating the preliminary injunction, which he had previously granted, on the petition of the American Graphophone Co. against the International Record Co., Auburn, N. Y., and then suspended, but not vacated, pending the appeal of the Leeds & Catlin Co. to the Circuit Court of Appeals in the Jones patent suit. As this case has been adjudicated it is not likely the International Record Co.'s case will ever go to final hearing. VACATION TIME. The Talking Machine the Basis of Summer Enjoyments— A Strong Statement but You Can prove It, Mr. Dealer. Vacation time is almost here and every talking machine man should bring the fact to the attention of every passer-by by means of appropriate window publicity. Do not depend upon your window display entirely, though, but have a small electric buzzer working overtime from a hidden retreat, singing a song of trade to the curious public. Did you ever walk along a street, gazing neither to the right nor left, your mind concentrated upon a business deal or busy with the list of necessities your wife asked you to bring home in the evening, when, suddenly, a seductive purring sound came to your ears close at hand, and you turned to find yourself gazing into an attractive window? Of course, you have, and so have tens of thousands of your fellows, and you will keep right on doing it as long as you live, and so will they. So much for the buzzer. Appropriate Window Publicity. You will say, gentle reader, that the subject of window displays is about worn bare; that there has been too much written about it already, and that it is full time to grant it a well-earned rest. The writer admits the truth of this, but he thinks there is just a little more of interest to be said before the last farewell is spoken; so here goes: The keynote of vacation advertising is appropriateness. Every progressive dealer advertises at this season of the year, but does he make that publicity entirely appropriate? Does the poster he hangs in his store window and the reading matter that surrounds it suggest the enjoyments of holiday time with the talking machine as a foundation? Does it speak of the lawn fete, the row on the lake, the trip to sea, of if the vacationist is to remain in the city, the roof garden? It should be so, and somewhat as follows: INDEBTED TO ANDREW DEVINE. Andrew Devine, whose death is recorded elsewhere in this issue, is credited with being the "father of the talking machine business." He, with two associates, bought the Bell and Tainter patent, and was the first to recognize the commercial possibilities of the reproduction of sound; but what Mr. Devine had particularly in mind was a machine for dictation. The amusement side was developed later and incidentally. When the American Graphophone Co. was organized by Mr. Devine, Edward D. Easton was made president, a position he has since filled so acceptably. Mr. City Dweller, a Word With You. Have you decided where to spend your holiday this year? It doesn't mater; take a talking machine with you, anyway. Consider that first and your destination afterward. Make it the foundation of your good time and the locality in which you find yourself will adjust itself to your desires. If you pack a "talker" in your trunk you will be sure of one thing, viz. — the pleasure of the city theater, which embraces sweet ballads sung superbly by the best vocalists of the world, the uproarious mirth of the vaudeville stars, the brassy, soulstirring blare of the military band and the soft, caressing melody of the orchestra. With these with you, what else matters? Think of it out upon the dreamy limpid lake, far away from the haunts of man and the dust and clamor of the metropolis, with the talking machine pouring from its golden throat, mirth, melody or sadness in harmony with your mood. Great, isn't it? What will the lawn fete be without an orchestra for dancing after the dainty supper is eaten? A failure? No. Not if you have that "talker" in your trunk. Maybe you are going to sea. Well, when the ocean is calm and the moon is casting her magic spell upon the billows, would it not add greatly to the romance of the occasion to have an appropriate phonographic obligate? You will be in doubt until you try it. To the man who can't get away, whose business cares chain him to his desk throughout the summer and who loves Bohemia, the "talker" is a friend, indeed. It will bring the roof garden to him when he cannot go to it, and with all its delightful Bohemian atmosphere. With something cold in the ice chest and a "talker" in the house, the city loses its terrors even in the most torrid weather. Make your purchase now. You may not pass this way again. Howard Taylor Middleton.