The talking machine world (Jan-Dec 1911)

THE TALKING MACHINE WORLD. 63 1866 1»10 Talking Machines, Typewriters, Phonographs, Adding Machines, Cash Registers, Guns and Tools, and on all Polished Instruments. The Finest Oil Made. A fine polish for varnished surfaces on cabinets, etc. It Absolutely Prevents Rust. Now Sold Everywhere By All Hardware Men WILLIAM F. NYE NEW BEDFORD, MASS. DECISION IN THE PETIT=DUPLEX SUIT. Case of the Victor Co. Against the American Graphophone Co. Which Has Been Before the Courts for the Past Two Years Dismissed by Judge Hazel — His Decision Which Appears Be'ow Covers Many Interesting Points. The so-called Petit duplex or double-face patent, owned by the Victor Talking Machine Co., Camden, N. J., has been before the courts for over two years — taking testimony, etc. The case of the Victor Co. against the American Graphophone Co. (Columbia Phonograph Co., General), New York, came on for final hearing February 28 last before Judge Hazel, Circuit Court of the United States, second district. Judge Hazel, on June 14, filed his opinion dismissing the case with costs. The decision in part follows : Tills is a suit in ecuiily, Ijrouglit to enjoin the alleged nifringement of i)atenl No. 749, ()»a, issued to N. Petit, on Jan. 5, 1904, for improvements in double-faced sound records which are of the disc type. 'J'hc object of the patentee was to produce a sound record impressed in the form of a spiral groove on each side of the tal)lel ; or, as :,tated in the specification, "to produce a double record faced disc." The validity of the patent is challenged and the defendants contend that the process by which both sides of a record or disc are used is not invention, and, in view of the known process for making single-faced records, was a perfectly obvious thing to do. Claims 1, 2 and 3 of the patent are for an article of manufacture. The third is broadly for any disc "presenting oppositely-facing sound-records," and the fourth describes tile disc as of homogeneous material and is for the process. The process of making a record having impressed on its face sound waves in the form of a spiral groove was old in the art. The material for pressing the record was old; its use in a plastic state and the method of compressing it between two matrices or discs, as above indicated, was familiar to those engaged in the talking machine art. ]t was old, moreover, to clectropl.Tle the matri.x with a spiral line ill relief running fniiu liic circumference of the disc to the center. Nothing whatever lias been added to the prior art, save that in the process in suit two matrices are used (instead of the matrix and smooth die;, with plastic material between them, and upon giving the required pressure the spiral grooves are impressed on each side of the disc. Counsel for the complainant in support of the claimed invention argues that the product found favor with the trade; that the general public in many instances prefer to buy and use a double-faced record and that better records are made — records wherein the scraping and hissing sound of the single-faced records are much lessened. If I were satisfied by the evidence that such interfering sounds, wliich are known to accompany the sound of reproduction, had actually been appreciably lessened there would be such a doubt in my mind upon the question of invention as would prompt me to lesolve it in favor of the validity of the patent. But I am not satisfied, by the testimony of Mr. Hunter, complainant's expert, that the double-faced records have the claimed advantages of superiority over the single-faced records. It was not enough to set forth such superiorities anil advantages in the specification, but complainant was re tjuired to prove such statements and claims by a fair prepunderaiice of the evidence. The specifications state that the hissing or scraping sounds noticed in operating the single-faced records are "produced by tlie stylus jumping across the minute spaces hclucui the molecules," and that by the invention in suit such noises are reduced because the molecules are arranged more closely together. Upon this point the expert witnesses are not in harmony. Mr. Cameron, expert for the defendants, did not seem to think there was any such molecular disturbances of the plastic material as to result in imparting to the double-faced records any superiority or advantage not possessed by the single-faced records. It is pointed out that the specification admits that as to quality and sounds the results of the double-faced records are essentially the same as in a single-faced record. But assuming that there is a molecular disturbance caused by the unequal flow of the material when the matrices are under pressure, it certainly was abvious that by pressing it between two discs or matrices, each having roughened surfaces, there would result a somewhat different flow of the material than when merely one matrix or die is pressed down on the material. The patent to Kearsing, No. 317,143, clearly describes this procedure. Nor is the claim of complainant satisfactorily established that single-faced records are frequently rejected oecause of imperfections and that the percentages of imperfections of the double records is much reduced. Giving consideration to the prior state of the art, including the British patent of Edison, No. 1644 of 1878, the patent to Wassenich, No. 505,910, and the patents to Myers, N'os. 663,192 and 663,194, I am of the opinion that no invention was made in impressing matrices on both sides ot the disc to produce sound records on opposite sides, and that the complainant's invention was merely a duplication of the single-faced record. To attain the results flowing from such duplication did not require the exercise of the inventive faculties, but was an obvious expedient of which the skilled in the art doubtless would have taken advantage in the earlier stages of the sound record art if manufacturers of such records deemed it to their commercial interests to do so. ]n the Edison English patent, the description therein says: "Fig. 34 is a perspective view showing a double phonet, there being a spiral line of indentations on each side of the revolving disc." This certainly would suggest the idea of double-faced disc with grooves impressed on both sides. In the Wassenich patent the record is not placed on each side of the disc, nor is it made of a homogeneous material, still the specifications suggests the idea that both sides of th» tablet may be used as recording surfaces. As the idea for doing the thing was not new it is difficult to perceive invention in the mere application of the idea to a slightly different disc without a process for effectuating it in a new and novel way. The Myers patents hereinabove cited, relate to the art under consideration and in the specification ol patent No. 663,192, it is said: "But if it is desired to have a record on both sides of th , disc the latter may be taken out of the protector and in verted." In the specification of patent No. 663,194 it is stated: "The record 5 may be formed directly in the tablet and may be embossed or cut on both sides of said tablet if desired." The Myers patents are thought to make it necessary thai the process of impressing the material be performed simul laneously as in the patent in suit, and the only difference liointed out between such patents and that of coniplainaiil is that in the forinci the com]iosition is celluloid and in the latter hard rubber or vulcanite — an immaterial dif Itreilce. Complainant claims that the I'etit invention was made at an earlier date than the filing dale of the application and that it antedates the Myers patents, but such testimony is not so convincing as to bring it within the rule "thai the antici|>ation is not anticipated." There was much discussion at bar upon the question of utility, it being claimed that that defense was not open to the defendants, who admittedly infringed complainant's latent. The single object in attacking the utility of the invention arises from defendants' desire to show that the ]iatent was erroneously granted by the Patent Office in the belief that the process possessed superiority and advantages over the process by which the single-faced lecords were manufactured and not with a view of denying its operativeness. The Patent Office at first held that no patentable invention was shown, but on appeal the Board of E.xamiiiers in chief rejected such decision on the groui-id that the affidavits filed in the Patent Office showed prima facie that such records were of superior quality. The proof here, however, does not support such view. My conclusion is lhat in view of the patents to Edison, Wassenich and to Myers, it requires no invention to make a double-faced record by practically the same process used in making single-faced records, and the patent in suit is invalid. Accordingly the bill is dismissed with costs. Horace Pettit appeared for the complainants, and Philip Mauro, C. K. L. Massie and Kalph L. Scott for the defeildanls. The case in all probability will be taken to the Circuit Court of Appeals. The Phonofilm Syndicate of London is the assignee of a patent, No. 992,169, for a talking machine record and holder in which the record consists solely of an annulus of thin, flexible record receiving material, and this record is combined with a holder which has a backing and means are provided for securing one edge of the record to the holder. MittiMlilii Don't be caught napping Keep your eye on your stock and don't let any customer catch you napping. Try to anticipate the wants of your customers, and when you can't do that you ought to be able at any rate to tell them just when you will have what they want. You can do that if you have the right kind of a jobber. He must be prompt or you can't be. Our service is always right and particularly valuable when you get in a pinch. 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