The talking machine world (Jan-Dec 1910)

THE TALKING MACHINE WORLD. 33 99 The Columbia Grafonola "Regent (library table type) at $200— nothing like it on the market. The Columbia Grafonola "Mignon" at $150— the first hornless instrument at a hundred-and-a-half. The Columbia Grafonola "Favorite" at $50— $25 under the priee of its cheapest rival. Columbia Phonograph Co., Genl., Tribune Building, New York. AMERICAN GRAPHOPHONE CO. WIN SUIT Circuit Court of Appeals Reverse Lower Court in Suit Brought by Victor Co. in Which Fine of $1,000 was Imposed for Contempt of Court — The Judges' Decision in Full. \\ hat is known as the ''stenciled record" case — Victor Talking Machine Co. against American Graphophone Co. (Columbia Phonograph Co.) — in which the defendants were adjudged guilty of contempt of court and fined $1,000 for an alleged violation of the Berliner patent in the Circuit Court of the United States, southern district of New York, was reversed by the Circuit Court of Appeals, second circuit — Judges Coxe, Ward and Noyes — December 13. This is a final adjudication of the suit. The opinion, written by Judge Ward, follows : The Judges' Decision. The complainant, the Victor Talking Machine Co., is licensee under the Berliner patent for a talking machine called a gramophone, It obtained an injunction in a suit against the defendant, the American Graphophone Co., which the court below lias held to have been violated. Claims 5 and '.i.i of the patent were sustained for the process of reproducing sounds and the apparatus for doing so, being a combination of the Berliner reproducing stylus with sound records which were old. "5. The method of reproducing sounds from a record of the same which consists in vibrating a stylus and propelling the same along the record by and in accordance with the said record substantially as described." "35. In a sound reproducing apparatus consisting of a traveling tablet having a sound record formed thereon and a reproducing stylus shaped for engagement with said record and free to be vibrated and propelled by the same, substantially as described." The American Graphophone Co. is the owner of U. S. Letters Patent to Jones (No. 088,739), for the production of the sound records now in universal use. It obtained an injunction in a suit against the Universal Talking Machine Co., one of the Victor Co.'s subsidiary companies, June 3, 1907, the Victor Co. and the American Graphophone Co., with a view to composing differences and of conferring mutual licenses, entered into an agreement which recites that the Victor Co. has a license "to manufacture, sell and deal in gramophones and gramophone goods" under the Berliner patent and the American Graphophone Co. is desirous of operating under the said patent; also that the American Graphophone Co. is owner of the Jones patent and the Victor Co. is desirous of operating thereunder, and then confers by implication upon each the right to "operate" under the patent of the other with three reservations, viz.: First, that neither party shall counterfeit nor copy any record owned or controlled or first produced by the other, nor deal in nor handle such copies if made by others; Second, no right is conferred upon the American Graphophone Co. to use the word "gramophone" nor upon the Victor Co. to use the word "graphophone"; Third, the rights conferred are non-assignable. The agreement further provided : "13. It is further agreed as to all patents adjudicated or to be adjudicated as valid, that the party owning or controlling such patent or patents will with due diligence actively proceed against all infringers of said patent or patents, to enjoin such infringing parties from said infringements, and for an accounting, when requested in writing to proceed against any such alleged infringers by the other party hereto. "14. Each of the parties hereto shall, through their counsel, when requested by the other party assist such other party in prosecuting infringements of said patents, sustained or to be sustained after the same has been sustained, when so requested in writing, each party bearing the expense of its own counsel, it being understood that he direction and control of said suits shall be entirely in the hands of the party bringing the suit and controlling the patent." The American Graphophone Co. obtained an injunction on final hearing against the Leeds & Catlin Co for direct infringement of its Jones patent for sound records The Victor Co. obtained and maintained a preliminary injunct.on against the Leeds & Catlin Co. as contributory in f ringers of. the Herliner patent because they sold sound records knowing and intending that they were to be used in and "for -the . reconstruction of the American Gramophone' talking machine. Before this injunction was finally affirmed Leeds S: Catlin sold a large quantity of these records to various jobbers which the American Graphophone Co. took off the hands of the jobbers in exchange for their own records made under the Tones'patent. Some of these records it subsequently sold and . it was for this the circuit court held it to he a. contributory infringer. Th% order is sought to be sustained on the ground that selling these records was a violation of articles No. 13 and-' 14 of the agreement of June 3. 1907. Conceding, without admitting this to be so, the act would be not a contempt, but a breach of contract, to be remedied in an action at law. Indeed, the act of buying the Leeds & Catlin records would seem to be in direct suppression of contributory infringement of the Berliner patent. It remains to inquire, whether the American Graphophone Co., having bought the records, was within its rights in selling them. The Victor Co. contends that the "right to operate" under the Berliner patent gives tin1 American Graphophone Co. only the right to manufacture and sell products manufactured by it. But Clause 33 of the patent covers the apparatus, and presumably the American Graphophone Co. has t lie right to make and assist others to make the combination of stylus and record which constitutes the apparatus. Why is it confined in so doing to records manufactured by itself? There is no express limitation of the license other than the three reservations above mentioned. And it is fair to infer from the reservation that neither party shall deal in nor handle counterfeit records made by others that they may deal in records made by others which are not counterfeit nor direct infringements. The Leeds & Catlin records are not counterfeits of the Victor record nor direct infringements of the Berliner patent. Furthermore, we cannot see that the Victor Co.'s business is any more or any differently injured by the American Graphophone Co.'s selling Leeds & Catlin records than it is by that company's selling its own records. On this point it is suggested that the Leeds & Catlin record is an inferior one. If so, not being sold as the Victor Co.'s the business of that company is less likely to be injured by that sale than is the American Graphophone Co.'s business. The order is reversed with costs. Richard N. Dyer and C. A. L. Massie appeared as counsel and Ralph L. Scott as attorney of r-cord for the American Graphophone Co.; Horace Pettit, counsel and attorney of record for the Victor Talking Machine Co. LANDAY BROS. STORE REMODELED. Fifth Avenue Premises Fitted Up in Elaborate Manner — Some of the Details — Son and Joy. The very elaborate remodeling of the store of Landay Bros., 400 Fifth avenue, New York, was finished this week. The street entrance has a series of mirrors reaching from the floor to the seiling, and the elegant wall decorations give a striking effect. Additional room for demonstrating booths are also secured on the main floor, and here a great deal of excellent taste has been exhibited. The display window is along Louis XV lines, and with the gilt candelabra and the fine arrangement of the Victor's finest products, is likewise admired by the many visitors. The firm are doing a splendid business. James B. Landay was made happy by-the arrival of a boy -on "November 30. The Brith-AIilah was held December 7 at his home in Far Rockaway, L. I., where a merry party gathered to celebrate the event. Max Landay was about as much delighted-as his brother. A sleighing party wound up the festivities. C. H. WILSON ON BUSINESS. C. H. Wilson, general manager of the National Phonograph Co., Orange. X. J., in chatting of prospective business conditions, said : "To be frank I do not look for any great improvement. Not until the cases — Standard Oil Co. and American Tobacco Co': — now before the Supreme Court of . the United States, are decided do I think business affairs will change for the better. We are busy; in fact, are being pushed to supply goods, the demand for Amberolas being especially strong." NATIONAL PHONOGRAPH CO. SCORE. Win Suit Against Harry Weinberg, a Secondhand Dealer — To Proceed Against Others. The National Phonograph Co., Orange, N. J., have won their suit against the Philadelphia seconddealer. Harry Weinberg, which has been pending for a long time in the United States Circuit Court of Philadelphia, Pa. This case has been bittetrly contested on behalf of the defendant, and the decision now made by Judge Holland is rendered on final hearing on futher pleadings and proofs, including the testimony of a large number of witnesses. H. H. Dyke, of the legal department of the National Phonograph Co., who represented them in the case against Weinberg, in speaking of the suit said : "We are greatly pleased to note that the Weinberg case has been decided in our favor. I have not seen the decision yet, but have received a telegram from the clerk of the court saying that we had won the case. As soon as a copy of the decision comes in, we will get right after all the second-hand dealers we can find and make a thorough clean-up." The December issue of Wanamaker's Opera News, devoted to current and future musical events, is the brightest number yet issued. Louis J. Gerson, manager of the "talker" departments in both the New York and Philadelphia stores, who edits the crisp little monthly, with the special purpose of exploiting the goods, states the Opera News has proven very beneficial. Benj. Switky, 9 West 23d street, New York, who has one of the handsomest stores in the city, is doing a fine holiday trade. His location in the Fifth Avenue building is second to none, being in the center of the retail shopping district. While Mr. Slowpay is better than Mr. Nopay, the less one has to do with either of them the better. Old Spotcash is a good fellow to cultivate. One does not lose all the profits in chasing him up for his money.