Music Trade Review -- © mbsi.org, arcade-museum.com -- digitized with support from namm.org
JANUARY 25, 1919
THE
MUSIC TRADE REVIEW
9
COURT SUSTAINS AUTO PNEUMATIC ACTION CO. IN SUIT
Decision Rendered by Judge Hand in Recent Suit of the Auto Pneumatic Action Co. vs. Otto Higel
Co., Inc., Relative to Infringement of the Danquard Patents, Sustains the Plaintiff
The suit brought by the Auto Pneumatic
Action Co. vs. the Otto Higel Co., Inc., for in-
fringement of the Danquard Wippen Attach
Unitary Structure Patents, which was recently
tried before Augustus N. Hand, Judge of the
United States District Court, Southern District
of New York, and which was finally argued on
January 11, 1919, before Judge Hand, has re-
sulted in favor of the Auto Pneumatic Action
Co. The opinion of Judge Hand is as follows:
AUGUSTUS N. HAND, District Judge.
This is the usual suit for an injunction and accounting
by reason of alleged infringement of claims 26, 27 and 31
of U. S. Patent to Danquard No. 766,601. The patent
was sustained by me in a suit by the same complainant
against Kindler & Collins and essentially the same struc-
ture here shown was held to infringe. The Court of Ap-
peals affirmed the former decree in a decision reported in
247 Fed. 323. One of the strongest practical reasons for
believing this decision was right is the great commercial
success of complainant's mechanism and the determined
attempt by a syndicate of piano manufacturers to use the
device. If it did not have the distinctive merit, based
upon some substantial invention, the trade would be con-
tent with some of the other numerous mechanisms of the
prior art.
The record here is but slightly different from that in the
former case. But few new things of any importance have
been developed in this litigation. The first is the Brown
piano, which was produced in Court, and the further proof
that Brown's piano was manufactured and sold to the
Aeolian Company. It is noticeable, however, that these
pianos only numbered 131, and the Aeolian Company pre-
ferred to abandon further use of the Brown mechanism
and took a license from the complainant and now uses ex-
clusively the Danquard instrument.
The difficulty alluded to by the Circuit Court of Appeals
in attaching the brackets to the abstracts appears quite
real upon examination of the Brown piano. The danger
of interference of these brackets with the action of the
abstracts and consequent impairment of the touch is alluded
to by the complainant's expert and seems to me a genuine
risk. The beauty of complainant's mechanism is the com-
plete dissociation of the manual mechanism from any of
the player mechanism when the former is in action. The
latter is not only removable like that of Brown's, but it by
no possibility can interfere with the touch or is in danger
of causing any fractional disturbance of the manual action.
This, I believe, is the feature which distinguishes the com-
plainant's instrument, both in theory and practice, from
Brown's and makes the Brown patent and use inapplicable
as an anticipation.
The French patent to Thibouville-Lamy of April 15,
1876, was introduced for the first time in this litigation.
This instrument discards the manuals and abstracts and
simply shows a pneumatic action. To restore these parts
would require a reorganization of the device involving a
turning around of the note-sheet tracker mechanism. If
this reorganization was so obvious, why was it never af-
fected ? The commercial advantages are, and I should say
would have been, apparent if anyone had had the inventive
skill to grasp the idea and carry it out. It may be said
that the public did not, in 1876, want such an instrument,
but it is a reasonable retort to this argument that only
invention could produce a mechanism which would give
rise to the commercial want. The same thing may be said
of the Hale Nickel-in-the-Slot Player produced at the hear-
ing in this case. Gulbransen's efforts terminating in the
use of the complainant's device appear to have alone re-
sulted in marketing any large number ,of instruments, were
all subsequent to the date of the> patent in this suit, and
are a clear tribute to the value of the Danquard instru-
ment, lie, in various unsatisfactory ways, attached to the
abstract brackets on which the pneumatics would act and
has ended by adopting the complainant's device. The
latter has taken a piano, and except for a slight extension
of the wippen that apparently does not affect the manual
operation, has inserted a player action made in such a way
as never to interfere with the touch when the instrument
is manually played.
Last of all, the defendant's counsel urges that the
patent is for a mere aggregation. He says the player
action was itself in the prior art, and that the complainant
merely puts it to a new use. The argument would be good
if the premises were sound. The player action so made
as not to interfere with the manual action was not old, and
the adaptation of it to the piano action in such a way as
not to interfere with the manual action involved a new
combination of player action elements. This is not a new
use, but a new combination in the player action mechanism
itself. The 270,000 player actions made under the patent
in suit have met a great public demand and have generally
superseded other structures. I confess that Brown is a
close reference, but Brown's device with the others have
gone the way of bankruptcy or other desuetude and the
Danquard mechanism has survived and prospered. The
Circuit Court of Appeals held that under the circumstances
the pivoted striker called for by the claims in suit was
entitled to a reasonable equivalent. Under that decision
I find nothing in this record to change the views I for-
merly expressed.
Judge Coxe, writing for the Circuit Court of Appeals,
held in the case of the Aeolian Co. vs. Wanamaker, 234
Fed. 90, that the patent to Votey, No. 780,078, was void
for lack of invention. The invention claimed there was in
substance that of a combined pneumatic and manually
operated grand piano. The court said: "There can be no
invention in transferring a mechanism from one machine
to another, where it accomplished the same result, because
in one machine it is horizontal and in the other perpen-
dicular."
Judge Coxe said, with the Danquard patent in the record
before' him, that the adaptation of the well-known pneu-
matic mechanism long in use in upright pianos to use in
grand pianos could be made by skilled mechanics and did
not involve invention. The case here is different. The
repeated failures in obtaining an automatic player mech-
anism which could be fitted to a piano in such a way
that both the player action and the manual action would
each be certainly operated satisfactorily and without in-
terference with the other, are the strongest proof that
Danquard, who solved the difficulty in the first com-
pletely satisfactory way, was a real inventor. Danquard's
device could be made applicable to a grand piano in the
then state of the art more readily than Thibouville's player
action could be so- adapted as not to interfere with a
manually operated instrument. The art had advanced
greatly when Votey made his instrument, and the latter
had the teaching of Danquard before him to assist him in
his adaptation. The reorganization of the Thibouville
player action had to be carried out with no sufficient pre-
vious experience in the art. Not only did Thibouville's
note sheet have to be turned around, but the pneumatic
mechanism had to be moved up and the keys had to be
lengthened. This reorganization was not indicated by past
experience, and it is quite problematical whether it would
have been practicable. It is true that the elements of the
patent in suit can be found in the prior art, but the com-
bination of them for the first time in a successful instru-
ment in the way shown by Danquard amounts to invention.
Such a result in the light of his teaching may seem easy,
but that it was not so the failures of numerous skilled
persons furnish the strongest proof. Indeed, the com-
plainant urges with much reason that the Thibouville
paper patent, which was for a mechanism that never, so
far as the proof shows, went into practical use, indicates
little more than the desirability of a unitary automatic
player utilizing a portion of a piano action as compared
with the old cabinet arrangement shown in the Courville
,. patent.
A decree is granted for the complainant with costs.
January 16, 1919.
IN
UDELL
CABINETS
ARE
AUTHENTIC
TRADE-MARK
There is that authoritative
touch of the artist that is in
harmony with the finest player-
piano. Not " Exclusiveness,"
just " Correctness."
One of Our Latest Models
Which Proves It
A. N. H., D.J.
AN UNUSUAL MUSIC ROLL DISPLAY
GREAT TRIBUTE TO THE ANQELUS
Wiley B. Allen Co. Arranges Most Attractive
Window Featuring Lee S. Roberts' Hits
Proof of Its Durability and Excellence Con-
veyed in Letter From Portland
SAN FRANCISCO, CAL., January 17.—The Wiley
B. Allen Co. is making a hard drive to secure
the music roll business of San Francisco, and
in this effort the company this week dressed
The products of the Wilcox & White Co.
have long been esteemed not only for their mu-
sical worth, but for their durability. A very
striking tribute to the constructive excellence
of the Angelus piano player is conveyed in the
following letter written by Jesse G. Poppert,
of Portland, Ore., who, writing under date of
January 8, says:
"The Wilcox & White Co., Meriden, Conn.
"Gentlemen—I bought one of your Angelus
piano players with organ attachment over sev-
enteen years ago. It was used for seven years
in Milwaukee, Wis., and when I decided to move
to Portland, Ore., the Angelus was stored in a
freight warehouse for a period of ten years.
"I did not expect to see anything left of the
Angelus when I had it shipped out here to
Portland, so was very much surprised when I
received it to find it in perfect condition in
every respect. I attached it to our piano and
it was truly remarkable to find it played correct-
ly in every way, and it looks just as well as
it did the day it was received from the factory,
seventeen years ago.
"It seems remarkable that after using it for
seven years and having it in storage for ten
years, it is still in A No. 1 condition both as to
piaying and finish. How is that for a record?
I am not used to talking very much, but am so
pleased that I had to express myself, knowing a
letter like this would interest you."
Music Roll Display at W. B. Allen Store
one of its windows in a novel way. The photo-
graph shows the six hits of Lee S. Roberts, all
of wl^jch are running at the same time, by show-
ing six targets with music roll arrows in the
bull's-eyes. Perhaps the most novel part of
the display is the featuring of. the artist. This
is a common way of advertising talking ma-
chine records, but it is said to be the first time
that the artist has been featured for music
rolls. Besides being a composer, Mr. Roberts is
manager of the Q R S Co., of Chicago, 111.
PERIOD
MODELS
No. 1352—"Louis XVI"
Height, 57 in. Width, 42% in. Depth
inside, 13 in. Mahogany Front. Sliding
Doors. Grille or Plain Glass Doors,
16x40 in.
Wood Panels.
Average
weight, crated, 185 pounds. Will ship
with Grille Glass Doors unless other-
wise ordered.
Will Hold 234 Piano Player Rolls
Our Latest Catalog Sent
on Request
Z UDELL WORKS
1205 28th Street
INDIANAPOLIS, IND.