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THE
JANUARY l5, 1921
MUSIC TRADE REVIEW
11
Tisdell, testified that the latter, in 1900, was at 1013 54
Gates avenue, "doing work for me building parts of slot
machines, experimental work." (Record page 376.) In
Granted Injunction and Accounting in Action Brought Against Wanamaker Concern on Charge 1915 Winne testified as follows about the first twelve-record
machine:
of Infringement of Patents Covering Tapering Tone Arm and Amplifying Horn
"• * • We. saw certain things were faulty. I could
not state exactly how long we worked on these improve-
Judge Augustus N. Hand in the United States ly less diameter than the larger end of the tone arm."
ments, but I would say it was at least-two, if not three,
Evidently the variation from a continuous taper was far
District Court for the Southern District of New greater
years after this first machine was constructed that we con-
than in the horn and tone arm of the defendant in
York, on December 4, handed down a decision suit, and the tube of the Cheney machine may be regarded tinued the building of these machines." (Record pp. 414,
415.)
granting an injunction and accounting in the ' not as curved, but with rectangular joints.
Winne then added that it would be pretty hard to tell
The British Court of Appeals, in passing on this very
action brought by the Victor Talking Machine
then what things they found faulty and that they worked
question
in
the
case
of
Gramophone
&
Typewriter,
Ltd.,
vs.
Co. against John Wanamaker, New York, on
Ullmann, held that unsubstantial variations in, continuous ,011 improvements at least two, if not three, yeTTTs after the
the charge of infringing Patents Nos. 814,786 tapering would not avoid infringement and Judge Learned first machine was made. (Record page 414.) Another place,
and.814,848. In issuing the injunction the court Hand reached the same conclusion in his opinion filed Janu- Winne said the defects were "just the coin mechanism."
upheld four of the five claims made under the ary 14, 1913, in the case of Victor Talking Machine Co. (Record page 380.)
Lather, who worked on the machines both at the Gates
vs. Hoschke.
two patents.
avenue and Myrtle avenue shops of Abner Tisdell, testi-
None of the cases has held that so small a deviation
Inasmuch as the case has been of considerable from a continuous taper as the four to five inches of tone fied, in 191S, that the first twelve-record machine was a
interest to the trade at large, the decision of the arm next the sound box, and the three and one-quarter sort of experiment and was not a success for the purpose
of an automatic slot machine (Record page 431), and added
inches farther along the tube of defendant's horn, is a
court is published herewith in full:
that it was four or five years later that the other machines
sufficient
variance
to
avoid
the
claims
in
suit.
I
find
a
This is a suit for infringement of Letters Patent Nos.
were constructed. He also said that the twelve-record ma-
clear infringement and regard the only real question as
814,786 and 814.848. The application for each patent was
chine was a secret before it was completed. (Record page
that of validity.
filed February 12, 1903, and the patents were each issued
433.)
The records before Judge Learned Hand in the Lind-
on March U, 1906. The claims at issue are 42, 2 and 36
I think such evidence as this from a man who was helping
strom and Hoschke cases and before Judge Sessions in the
of Patent No. 814,786, and 7 and 11 of Patent No. 814,848.
Abner Tisdell develop the slot machines shows a failure
recent Cheney case were practically the same as that now
These claims are as follows:
to comply with the well-established rule that a prior use
presented except for the Winne alleged prior use, the Mil-
Of No. 814,786:
must be established by clear testimony and beyond a rea-
ler
patent
and
the
Columbia
taper
tone
arm.
There
is,
"42. A talking machine, comprising a tapering sound-
sonable doubt. I think the witnesses were reputable and
however,
the
significant
further
addition
to
the
present
rec-
conveyor, means for attaching sound reproducing means to
truthful, but lack of clear documentary evidence or physical
ord
consisting
of
the
testimony
of
complainant's
own
expert
the small end thereof and horn coupling and supporting
exhibits showing date of reduction to practice leaves the
to the effect that the ordinary hearer could not distinguish
means with which the other end of said conveyor is mov-
between the sounds from a tapered tone arm and those question whether the Tisdell conception was reduced to suc-
ably connected.
cessful practice or was in public use before the date of
from one with parallel sides. Undoubtedly the complainant's
"2. In a talking machine, an amplifying horn proper,
Johnson's application problematical. As the proof stands, the
expert,
Mr.
Hunter,
insisted
that
careful
experiments
would
a record support, a tapering sound tube movable independ-
trials can only be regarded as experimental prior to an even
show a superiority of tone in a machine having a tapering
ent of the amplifying horn proper and supported to move in
later date.
tone
arm.
The
evidence
of
the
practical
abandonment
of
a given plane parallel with said record-support, a sound box
The tapering tone arm, which appears in the Miller
the
first
Johnson
machine
having
a
tone
arm
with
parallel
mounted upon and communicating with the small end of
reissue patent, cannot be regarded as anticipating that fea-
wans
and
the
immediate
success
in
the
trade
of
the
later
said tube and movable independently thereof toward and
form of instrument with a tapering arm is a tribute to the ture of the Johnson patent. The matters in interference did
away from the record-support, said horn and tube com
not relate to a tapering tone arm. The affidavits of Miller
utility of the talking machine described in the patents in
municating and supporting means at the communicating por-
furnish the only evidence of the date of his conception, and
suit. This argument from commercial success has been
tion of said horn and tube.
his sketch dated December 2, 1900, showing a talking ma-
enough
to
satisfy
Judge
Learned
Hand,
Judge
Sessions
and
"36. In a talking machine, a record support, a hollow
at least one and perhaps two English Courts of Appeal chine with a tapering arm, dors not establish that date by
sound-conducting arm movable in a given plane parallel with
documentary evidence, for Miller does not state when the
that a tapering tone arm in combination with the other
said support, and a sound box mounted uion, communicat-
date was placed on the sketch. Moreover, the language
elements
present
in
the
claims
under
consideration
was
suf-
ing with and movable independently of said arm,
of his specification nowhere describes or claims such an
ficiently
novel
and
useful
to
be
patentable.
I
doubt
the
toward and away from the record-support, said sound box
element as a tapering tone arm, but only shows a diagram
conclusion of Justice Warrington in the case of Gramo-
being movable upwardly and to the other side of its point
of such an arm. There is no reason to suppose that this
phone
Co.
vs.
Ruhl,
supra,
to
the
effect
that
an
improve-
of support, whereby it may be supported in an inoperative
feature was a part of Miller's conception. I do not regard
ment
in
tone
which
can
only
be
detected
by
trained
experts
position by contact with said arm or a portion thereof."
claim 37 of the Miller reissued patent No. 12963 as call-
does not involve an advantage to the public which justifies
Of No. 814,848:
a patent. In the first place, even if no class but well- ing for a tapering tone arm. It is applicable to an ampli-
"7. An amplifying horn, comprising a continuously tap-
trained musicians could detect the advantage, 1 can see no fier having a tone arm, either with parallel sides, as shown
ering tube having a joint to allow a movement of one end
in Figure 4, or with tapering sides as shown in Figure 1,
reason for saying that it is not useful. Furthermore, I think
of said horn in relation to. the other, said horn being sup-
it possible that even the average man may have a real pref- and makes no claim to any special shape.
ported at said joint.
As for the Columbia defense, the date is too late. I
erence for sounds which he has not training or concentra-
"11. An amplifying horn, comprising a tapering, curved
think it clear that Johnson's conception was at least prior
tion consciously to compare with those less pleasing. The
tube, said tube being pivoted on a substantially vertical
unanimous opinion of so many judges, as well as the com- to the Summer of 1902, and that dies were made and suc-
axis to allow a horizontal movement of the smaller end of
mercial success of the tapering tone arm as soon as it was cessful devices constructed embodying his invention during
said tube, the curved portion of said horn connecting sec-
that Summer of the character of Exhibit 18. The Colum-
put on the market, and the apparent abandonment of the
tions thereof lying in substantially parallel planes, ^aid axis non-tapering tone arm, are most persuasive. The point is a
bia device appears to have originated in Hinkley's sketch
passing through or adjacent said curved portion."
in October. This was rapidly followed by reduction to
close one, but I am of the opinion that the results achieved
I shall first allude to the question of infringement. It
by the Johnson device in suit should outweigh the evidence practice, but of a later date than Johnson, who proceeded
was held by Warrington, J., in the 'case of Gramophone
steadily from the early Summer of 1902 until he put hi*
of some experts that a tapering tone arm affords no advan-
Co., Ltd., vs. Kuhl, heard in the English Chancery Divi-
talking machine on the market in the Spring of 1903 and
tage, and even the admission of Mr. Hunter that the superi-
sion, that a tone arm which was not substantially tapering
filed the applications for his patents on February 12, 1903.
ority of its tone cannot readily be detected, I find no ref-
did not come within the claims of the British patent that
erence in the patents which seem to have been before the
On the whole case I hold all the claims in issue valid
seem to have been identical with those under considera-
courts in former litigations which literally meets the com- and infringed except claim 36 of Patent No. 814,786. That
tion, liut it is stated that the tone arm of the defend-
bination described in the patents in suit and agree with the
is not limited to a tapering tone arm. I regard it, there-
ant in that case, while smaller in the area where it joined
judges who have heretofore passed on the question that the
fore, as showing no invention over the Elfering or John-
the sound box than it was where it joined the upper part
patent is valid so far as the art is concerned that they
son and Denison prior patents. The only modifications of
of the horn, attained the difference by a sudden enlargement.
ap.iear to have had before them in the prior litigations.
claim 36 in suit are obvious equivalents. Victor vs. Edi-
A diagram of that tone arm is shown in the opinion of the
son, 229 Fed. 999; American Graphophone Co. vs. Gimbel,
Court of Appeals, which likewise held there was no in-
1 here remains the consideration of the new prior art, 240 Fed. 971.
fringement.
I think the construction of slot machines by Abner Tis-
'The complainant is entitled to an interlocutory decree ad-
dell prior to any date of invention claimed by Johnson is judging all the claims in issue, except 36, supra, valid and
Judge Sessions, in the case of Victor Talking Machine Co.
established by a number of witnesses who impressed me as
vs. Cheney Talking Machine Co., decided August 5, 1920,
infringed, and providing for an injunction and an ac-
held that the tone arm of the defendant in that case was credible. 1 do not understand it to be disputed that
counting. The suit as to claim 36 should be dismissed.
Abner Tisdell came to No. 1013J/2 Gates avenue, ltrooklyn,
tapering and did infringe claim 42 of Patent No. 814,786,
(Signed) AUGUSTUS N. HAND,
about March, 1900. There seems to be no doubt that Tis-
but that the horn as a whole did not infringe claims 7 or
District Court.
dell constructed a twelve-record machine with a tapering
11 of Patent No. 814,848, because it was neither continu-
January 4th, 1921.
tone arm during that year, or the early part of the next,
ously tapering nor had it a tapering curved tube. He said:
Kenyon & Kenyon were attorneys for the Vic-
but these events happened about twenty years ago; work
"That portion of the tube lying between the tone arm
tor Co., and Dunn, Goodlett, Massie & Scott for
was done on the machines covering a period of a number
and the orchestral sections, which is approximately of the
of years and Winue, for whom they were made by Abner
same length as the tone arm itself, is of constant and slight-
the defendants.
VICTOR TALKING MACHINE_CO_. WINS WANAMAKER SUIT
DALLAS ASSOCIATION CHARTERED
AMERICAN PIANO SUPPLY COMPANY
FELTS
CLOTHS
PUNCHINGS
MUSIC WIRE
TUNING PINS
PLAYER PARTS
HINGES
CASTERS
HAMMERS
A Full Line of Materials for Pianos am 1 Organ*
W n e n in need ox supplies
communicate witn. us
110-112 EAST 13th STREET
-
NEW YORK
Local Trade Organization Incorporated Under
Texas State Laws
DALLAS, TEX., January 7.—The Dallas Music In-
dustries Association, a corporation organized
not for profit, has been chartered for a term of
twenty-five years. The association is composed
of practically all the music houses in Dallas. It
has for its purpose the advancement of the cause
of music and musical education in Dallas. Mem-
bers of the association, which was formed sev-
eral months ago, will meet Monday at noon at
the Oriental Hotel, at which time officers for
the ensuing year will be named and other mat-
ters transacted.
The present officers of the association are
C. H. Mansfield, president; J. L. Richardson.
vice-president, and Robert N. Watkin. secre-
tary-treasurer.