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THE MUSIC TRADE REVIEW
JULY 12, 1919
AEOLIAN CO. WINS SUIT OVER THOMSON TRACKER PATENT
U. S. Circuit Court of Appeals Sustains Thomson Patent on Edge Control Tracker Mechanism in
Recent Case of the Aeolian Co. vs. Schubert Piano Co.—Injunction Issued Against the De-
fendant—Judge Manton's Decision Reverses Binding of Lower Court in Former Suit
The U. S. Circuit Court of Appeals has handed
down an important opinion in the case of the
Aeolian Co. vs. Schubert Piano Co., sustaining
the Thomson patent and finding that the defend-
ant: had infringed the same.
In pursuance of this opinion an injunction has
been issued against the Schubert Piano Co.
The Autopiano Co., New York, owned the
original O'Connor patent covering the automatic
tracker broadly, but this patent had to be re-
issued to be put in proper form and it was some
time before the Autopiano Co. was able to estab-
lish its rights. In the meantime a few concerns
had entered the field, making edge control
tracking devices, and the courts held that these
concerns could go ahead, as they had acquired
intervening rights. But these concerns, it was
alleged, who thus entered the field before the
O'Connor patent was properly reissued, in-
fringed the Thomson patent, and to meet this
situation the Autopiano Co. and the Aeolian Co.
pooled their interests under the two patents
and brought the present suit. The lower court
found against the Aeolian Co. and the Auto-
piano Co., but this decision has been reversed
by the Court of Appeals.
The Schubert Piano Co. claimed that the
Aeolian Co. in this development of the tracker
had infringed its patent and brought a counter-
suit again the Aeolian Co. This counter-suit
was dismissed and the rights of the Aeolian Co.
were sustained.
The following is the opinion in full in the
case, the opinion being written by Judge
Manton:
In order that there may be a clear understanding of
the patent in suit and its contribution to the art, it is
well to consider music sheet guiding devices and the
musical instruments, such as the organ or piano, which
1>lay automatically and upon which it is used. An auto-
matic piano or organ is constructed by having a series
of little motors incorporated therein, each of which is
connected to operate one particular action or sound-
producing mechanism.
One of its features is a tracker
bar.
This is a smooth piece of metal having a series
of little apertures in transverse line.
Each aperture is
connected to control one of the motors.
A perforated
music sheet is drawn longitudinally over the tracker.
ihe
music sheet consists of a long strip of paper having a
series of perforations cut therein corresponding in ar-
rangement and spacing to the ends of the music com-
position which is to be rendered.
Which notes are to
be played is determined by the lateral positions of the
perforations in the music sheets and the length the particular
note shall be held is determined by the length of the perfor-
ations.
The music sheet roll consists of a spool upon
which the perforated music sheet is wound up.
These
music rolls are sold and treated as compositions and
can be played interchangeably in the instrument.
The
end of the perforated music sheet is connected to a
winding roll arranged below the tracker bar, which roll
is rotated by a motor.
As a perforated note sheet is
drawn longitudinally forward over the smooth face of
the apertured tracker, the perforations in the music sheet
will uncover, in sequence, the corresponding aperture
in the tracker; thus the notes of the instrument will be
played in the order of the cutting of the perforations
in the music sheet and the musical composition will be
tendered.
After playing the perforated music sheets the
sheet is drawn longitudinally backward and rewound on
the spool.
The music sheet of standard arrangement is eleven and
a quarter inches wide and is so arranged as to accommo-
date eighty-eight apertures in line in the tracker, and
therefore, eighty-eight notes of the piano may be played.
The construction provides metallic bridges between the
apertures in the tracker bar of about one-fiftieth of an inch.
In organs of the Aeolian type such as the inventor Thom-
son purchased, as hereinafter stated, a music sheet of ten
and one-eighth inches wide is employed and the tracker
has one hundred and sixteen apertures.
It would be
recognized at once that if the perforated music sheet
during its longitudinal forward travel should slip sideways
or deflect longitudinally a greater distance than one of the
minute bridges between two adjacent apertures in the
tracker, a given perforation in the music sheet would un-
cover not only its proper aperture in the tracker, but
the one adjacent thereto and thus discord would be pro-
duced.
The need, therefore, to keep the music sheet
(luring its longitudinal travel forward in correct lateral
position on the tracker required an appliance to instantly
correct any deflection so that the continued forward longi-
tudinal travel of the music sheet would always be in
correct lateral position on the tracker. The purpose of
the appellant's invention, a music sheet guiding device, is
to cause the perforated music sheet to travel longitudinally
forward over the apertured tracker, always in exact side-
wise register and to correct any sidewise deflection thereof
before discord can be produced.
The guiding device is
used only when the music sheet is moving forward or, in
other words, while the piano is playing. When the music
sheet is being rewound around the spool or moving longi-
tudinally backward, the guiding device is thrown out of
operation; the backward movement is at high speed. A
device to accomplish these objects must necessarily be
a very delicate and nicely operated piece of mechanism,
for it works on a moving strip of perforated paper which
it must keep in correct lateral position within the dimen-
sions of a bridge in minute measurement.
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The pioneer inventor of the music sheet guiding device
was O'Connor. He had granted to him patent No. 789,053
on May 2, 1905, and two re-issues thereof, No. 13,283,
August 15, 1911, and No. 13,398. April 2, 1912. They
have been the subject of litigation and were before this
court in Autopiano Co. vs. Amphion Piano Co. (186 Fed.
Rep. 159); Autopiano Co. vs. American Co. (222 Fed.
Rep. 276), and Autopiano Co., vs. Claviola Co. (234 Fed.
Rep. 314). Instruments of this character known in the art
work pneumatically.
The pneumatic operation has taken
the form of, first, the pressure system, which employs
air pressure above that of the atmosphere, and the other,
a suction system, which employs air exhaust below that of
the atmosphere.
These systems, known equivalents, are
both used as the manufacturer desires. The suction sys-
tem is employed on player-pianos, and the pressure system
is commonly employed on organs.
The O'Connor construction referred to works on the
suction plan.
Since O'Connor was the pioneer inventor
we will refer to hi9 construction.
It is the claim of the appellant that the Thomson patent
is an improvement on the O'Connor. O'Connor adjustably
secured a block to the right hand part of the tracker, which
block had an opening called a control or guiding opening,
and which block was adjusted so that the control opening
would come just under the right hand surface of the music
sheet. This control opening connected by a tube to control
a valve arranged to connect and disconnect the suction
chest through another tube with an actuating pneumatic
arranged on the right hand end of the shaft of the music
sheet roll. While the music sheet is traveling longitudinally,
if it should wander to the left, this right hand control
opening is uncovered, the valve opens the suction chest
connecting to the actuating pneumatic, which then is de-
flected to pull the music sheet roll to the right, and hence
adjust the traveling music sheet to the right to remedy its
deflection to the left. So as to provide operation in the
other direction, there was adjustably mounted another block
on the left hand end of the tracker, which had a control
opening and which block was adjusted so that the control
opening would come just under the left hand surface of
the music sheet. This connected by tube to control another
valve which was arranged to connect and disconnect the
suction chest through another tube with another actuating
pneumatic arranged on the left hand end of the tracker
and connected to the left hand end of the shaft of the
music sheet roll, so that if the perforated music sheet,
during its travel, should wander to the right, the left hand
control opening would be uncovered, ihe left hand valve
open the suction sheet connected to the left hand actuating
pneumatic, which would then be deflected to pull the music
sheet to the left, and hence adjust the traveling music
sheet to the left to remedy its deflection to the right.
In this way, the surface of the sheet was employed to
cover and uncover control openings. In the construction
of the O'Connor device the mechanism is duplicated and
as one mechanism is employed for adjustment to the right
and another mechanism for adjustment to the left, the
sheet music expands and contracts with changes in the
temperature and humidity, requiring adjustment of the
blocks, and these adjustments are difficult, as they have
to be relative to each other to account for the expansion
and contraction and also have to be made relative to the
apertures in the tracker to keep the music sheets normally
and in proper relationship thereto. Then, too, there was
some variation in the width of the music sheet during
its entire length, and there was danger that the device
might not work properly, as its operation depends upon the
operation of the two blocks to a given width of music
sheet.
In other words, the O'Connor device provided a
double surface method of control by means of the two
guiding devices, one on each side. When Thomson the
inventor of the patent in suit, at one time purchased an
organ for his home and found that the O'Connor device
did not track properly the music sheet over the tracker
bar and did not serve the purpose of his automatic playing
organ, he set about to invent a device which would
He
has succeeded, and in our opinion he has invented an
improvement over O'Connor and has contributed to the art.
The claims in suit are as follows:
" 1 . A music-sheet-guiding
device comprising
means
normally operative to move the sheet laterally in one direc-
tion (the spring) and means including a part bearing
against an edge of the sheet movable laterally thereby
for governing said sheet moving means (lever, valve, and
actuating pneumatic).
, .
"2. A music-sheet-guiding
device
comprising
pneu-
matically-actuated means (actuating pneumatic and spring)
for moving the sheet laterally, a movable part (lever)
against which the sheet bears when laterally deflected from
its path, and connections between said movable part and
said moving means for controlling the latter said connec-
tions including a pneumatic valve moved by said part.
'*3. A music-sheet-guiding device comprising means nor-
mally operative to move the sheet laterally in one direc-
tion (the spring) a movable part (lever) against which
the sheet bears when moved by said means from its path,
and connections between said movable part and said sheet-
moving means (valve and actuating pneumatic) for con-
trolling the latter.
"4. A music-sheet-guiding device comprising means in-
cluding an actuating pneumatic and suitable connections
(levers, kinks, etc.) for moving the sheet laterally, and
means including a movable part (lever) against which the
sheet bears when deflected from its path and a valve
connected to said movable part, and pneumatic connec-
tions (tubes and connections) between said valve and said
actuating pneumatic for governing the latter."
The inventor states:
"My invention relates to music-sheet-guiding devices
such as are used in mechanical instrument-players and
mechanical players for musical instruments. Such players
are ordinarily controlled by a perforated music sheet mov-
ing over the tracker. The object of the present invention
is to guide the sheet laterally during its longitudinal move-
ment so as to insure the exact registration of the perfo-
rations in the sheet with the corresponding ducts in the
tracker, or, more broadly speaking, to insure such rela-
tive movement of the sheet and the tracker transversely
of the path of the sheet as will secure their proper align-
ment. It is of course obvious that any considerable lateral
deviation of the music sheet would interfere with or
destroy the proper rendition of the music."
The patent describes the working of the invention of the
device on the pressure system, but also points out that the
invention can be employed just as well on the suction sys-
tem. It is the control of the sheet by guiding it from one
side alone that is claimed to be the improvement. The
inventor claims only that he has invented "certain new
and useful improvement in music-sheet-guiding devices."
The first element of construction consists of a compression
spring placed in the bearing, which supports the left hand
plunger for the left hand end of the music roll. This
PIANOS
spring is under compression and is normally operative to
move the music sheet in one direction. Pushing on the
left hand side of the music sheet roll, it always tends to
push the music sheet to the right so that when there is no
pneumatic pressure in the instrument the music sheet roll
and the music sheet is pushed to the extreme position to
the right. Likewise, there is a compression spring on the
left hand axis of the winding roll. There is an actuating
pneumatic having connections to the shaft, which carries
the right hand end of the music sheet roll. The left
hand wall of the actuating pneumatic is movable and the
connections of the music sheet roll extend from the mov-
able wall. This actuating pneumatic has a light pull, spring
tending to deflate the same, which spring thus makes the
pneumatic double acting, that is, when pressure is ad-
mitted to the pneumatic it expands to the left and
pulls on the spring, and when the pressure is discontinued
and the pneumatic connects to the atmosphere the spring
pulls the pneumatic to the right and deflates the same.
The spring thus acts in conjunction with the compres-
sion spring at the left of the music sheet roll and acts
to move the music sheet to the right. The actuated pneu-
matic is made of a size so that when it is called into
operation for making an adjustment its operative force
is greater than the action of the compression spring. There
is a normally operative force in springs to push the music
sheet roll and hence the music sheet to the right, which
normally operative force is opposed by a superior force,
that is, the inflation of the actuating pneumatic. The music
sheet moves in space, being normally impelled to the right '
by the action of the spring, and being pushed to the left
by the actuating pneumatic when called into operation. The
device then provides a movable member bearing against
the edge of the music sheet and carrying a pneumatic valve
for governing the operation of the actuating pneumatic.
This member bearing against the edge of the music sheet
comprises a pivoted lever having a shoe against which the
left hand edge of the music sheet rubs. This lever carries
a pneumatic valve at its inner end and a light spring is
employed to pull the pneumatic towards its seat.
Pneu-
matic connections are arranged between the valve and
the actuating pneumatic.
These parts are so combined
that when the music sheet is too far to the right the
pneumatic valve is pulled towards its seat and the oper-
ative pneumatic pressure is connected to the actuatjng
pneumatic. As a result of this combination, the actuating
pneumatic operates the music sheet to the left until the
valve is open sufficiently to stop this action of the pneu-
matic. This provides that the music sheet roll is always
impelled to the right by the action of the normally oper-
ative spring and pushed to the left against the spring by
the operation of the actuating pneumatic, and this later
operation is governed by the left hand edge of the music
sheet rubbing on the moving part and operating the valve.
liy this combination the operation is governed by the
edge of the traveling music sheet rubbing to the movable
part carrying the pneumatic valve. Therefore, if the music
sheet during its longitudinal, forward travel should slip to
the right, the left hand edge of the music sheet would
move away from the movable part and the pneumatic valve
would be pulled towards its seat by the light spring pulling
on the valve bringing the actuating pneumatic into operation
so that it will expand to push the music sheet to the left
to its correct position, and thus cure its deflection to the
right and on the other hand, if the music sheet during this
longitudinal forward travel should slip to the left, the
left hand edge of the music sheet pushing on the movable
part, will hold the valve in a wide open position and will
cut the actuating pneumatic at the operation, so that the
spring will push the music sheet to the right, back to its
normal position. This provides the proper guiding during
its longitudinal forward travel.
By this combination and operation an improvement over
O'Connor's double surface method of control was estab-
lished. It avoids the duplication of parts and there is no
lost motion in connections as the spring or springs are
pushed.
Since it operates entirely from one edge of the
music sheet, it is only necessary to set one pivoted lever
in proper position relatively to the tracker bar. If the
music sheet varies in width, the operation will not be
materially interfered with.
It operates by contact of
the traveling edge of the music sheet with a movable part.
A very small lateral movement of the music sheet will move
said part, whereas the movement of the music sheet re-
quired in O'Connor's device must be enough to cover one
of the control openings a considerable distance.
That it has been an improvement over the O'Connor
device is best exemplified by the results obtained.
The
witnesses say it worked successfully and satisfactorily
and there were some thirty thousand beginning June, 1911.
It should be given a fair construction and a reason-
able range of equivalents. (Dowagiac Mfg. Co. vs. Minn.-
Moline Plow Co., 118 Fed. 130; Natl. Hollow Brake-Beam
Co., vs. Interchangeable B. Co., 106 Fed. Rep. G93.)
The appellee's guiding device constructed under the
Dickinson patent No. 1,194,725, works on the suction system
instead of on the pressure system.
Thomson, however,
in his patent, says this is immaterial and points out that
one familiar with the art may readily change to the suc-
tion system.
In appellee's device the first element con-
sists of a compression spring placed in the bearing which
supports the left hand plunger or shaft for the left hand
end of the music sheet roll. The spring is under com-
pression and is normally operative to move the sheet in
one direction.
This compression spring pushing on the
left hand shaft of the music sheet roll always tends to push
the music sheet to the right. When there is no suction
in the instrument the sheet roll and the music sheet is
pushed to an extreme position to the right. This is the
same action as the spring in the Thomson device.
In appellee's device the next operative element is the
actuating pneumatic having connections to the shaft which
carries the right hand end of the music sheet roll. It has
three walls, the two outer walls of which are movable and
are connected by a link to move as one part and the con-
nections to the music sheet roll extend from the right hand
wall.. There are two bellows or chambers in appellee's
actuating pneumatic. The bellows which operates to adjust
the music sheet roll is the left hand bellows. The appellee's
actuating pneumatic operation by suction, when this ad-
justment is made, will move to the right, hence any con-
nections from the actuating pneumatic to the shaft of the
music sheet; a chain motion device, a cam, is employed.
The actuating pneumatic moving to the right by suction
and having chain motion connections to the right hand
end of the music sheet roll is the same mechanically as
Thomson's actuating pneumatic expanding to the left under
pressure and connected by direct connections to the right
hand end of the music roll.
It makes the pneumatic
double acting so that when the operating section is dis-
connected from the left hand bellows of the pneumatic
the right hand bellows moves the parts to the left to
inflate the left hand bellows; the right hand bellows thus
acts in conjunction with the compression spring at the
left of the music sheet roll and acts to draw the music sheet
to the right. This pneumatic is of such a size when called
into operation for making an adjustment its operative
force is greater than the action of the compression spring
to the left of the music sheet roll. When the actuating
pneumatic thus operates to make an adjustment it pushes
the music sheet roll and stores energy in the spring.
Therefore, there is normally an operative force, the spring
(Continued on page 6)
ORGANS
E5TEY PIAND COMPANY NEW YORK CITY
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