STOCK TELEGnAPH CO.
(Circuit Court, 8. D.
June 16, 1883.)
PATENT TELEGnAPIIIC PRINTING INSTRUMENTS-INFRINGEMENT.
The third claim of the rcissucd patent, No. 3,810, granted to plaintiff, as assignce of Edward A. Calahan, January :W, 1870, for an improvement in telegraphic printing instrumcnts partIcularly designed for registering ilie prices of stocks, is infringed by machines made under the 'Wiley patent, No. 227,868, but those machines are not an infringement of the original patent granted to Henry Van Hoevenbergh, April 21, 1:;68.
SAME-HEIssUE-JunrsDICTION OF CO)DIISSIO"ER OF PATENTS.
Power is conferred upon the commissioner of patents to cnuse the specification of a patent to be amended, on application for reissue, so as to fully describe and chim the very invention attcmpted to be secured by the original patent, and which was not fully securcd thcreby in consequence of inadvertence, accident, or mistake.
It is not indispensnhle that the petitioner, in his application for a reissne, should usc the exact phraseology of the statute, if he emplOys language which
OF PETITION. .
actually conveys its legal meaning.
Dickerson &: Dickerson, for plaintiff. Charles N. Judson, for defendant. SBIPMAN, J. This is a bill in equity, founded upon the alleged infringment by the defendant of reissued letters patent No. 3,810, granted January 25, 1870, to the plaintiff, as assignee of Edward A. Calahan, and of original letters patent granted July 27, 1871, to Henry Van Hoevenbergh, as inventor. The original Calahan patent was granted April 21, 1868. Each patent is for an improvement in telegraphic printing instruments particularly designed for ing the prices of stocks. The specification of the Calahan reissue describes the in general terms, as follows:
.. It is often desired, particularly in large cities, to keep a correct record of various tluctuations in the price of gold, stocks, and articles of trade, and to have these tiuctuations simultaneousl,Y and periodically denoted and registered at the various centers of business connected with one central transmitting station. 'l'his invention is intended to accomplish the said objects in a very reliable manner, and to dispense with the complicated mechanism heretofore made use of tu cause an impression to be made when the type-wheel has been bronght to a proper position: A magnet and armature are employed in effecting the movement of the type-wheel, so that the same is tnrned to the required position, and then, by an independent motion, separately controlled from that of the type-wheel, the impression is made, so that the type-wheel can remain after it is adjusted, or lJe again moved. previous to the impression being malle. The impression is made on a strip of paper by two type-wheels, so that -tile printing is in two lines, and the figures and fractions for denoting the prices (\!" quotations are contained upon a wheel and combined therewith. Letters are provided for printing on the same strip of paper to denote the articles ·to which the quotations relate. A.s the different machines will generally be but a short distance apart, -it is 'preferred to mal,e use of' two or more wires communicating through the entire circnit of machines. One of these wires transmits the pulsations of electricity that act upon a magnet ancl alljust the type-wheel to tlle pruper letter or nUll11.Jer. The other wire trans-
GOLD & STOCK TELEGRAPH CO" V. WILEY
mits the pulsations of electricity, which, acting in a magnet, produce the im- '. pression upon the paper." The third and only claim in controversy is as follows: "(3) The combination of the type-wheels,k and l, magnets, f and i, \V ,th the magnet, c, and impression roller, u, or its equivalent, substantially as set forth." This claim is like the third claim ,of the original,' exce'pt that in the original, after the words "substantially as," the words "and for the purposes" were inserted. ' The petition of t.he plaintiff to the commissioner of patents for flo reissue averred that the original patent was "not fully operative and valid by reason of a defective specification;" and b the affidavit attached to the petition the affiants made oath that they verily believed that, by reason of an insufficient or defective specification, "the aforesaid patent is not fully valid and available." The defendant says that in order to confer jurisdiction upon the commissioner to grant a reissue, the petition should have averred that the patent waS inoperative or invalid, and there being no such averment the commissioner was without jurisdiction, and the reissue is void. I do not understand that the supreme court has ever held that a reissue can only be granted when the origipal patent is completely inoperative or is entirely invalid; but, on the contrary, it has held that power is conferred to cause the specification to be amended "so as fully to describe and claim the very invention attempted to be secured by the original patent, and which was not fully secured thereby, in consequence of inadvertence, accident, or mistake." Po '1.'der Co. v. Powder 98 U. S. 12ti; Wilson v. Coon, 18 Blatchf. 532; [So C. 6 FED. REP. 611.] It is not indispensable that the petitioner should use the exact phraseology of the statute, if he employs language which actually conveys its legal ' A reissued patent may be valid as to, one claim and invalid as to others. In this case, the only claim in controversy is in substantially the same language with one of the original claims, and, so far as that claim and its subject-matter a.re cOll.Cw"ned, the reissue isa substantial repetition of the original patent. Even if the petition had been technically defective in its allegations, I should not be inclined to hold that the :reissue wa\'l tberefore void as an original claim which was repeated in the reissue. The CaJahan instrument, as usec1 at the receiving station, is thus described by Mr. Brevoort, the plaintiff's expert. I t "Consists essentially of two wheels, having ,respectively letters and fJogures upon their peripheries, which wheels are capable of independent motion. Each of the two wheels is independentJy controlled .bya separate and independent Under the wheels passes the strip of paper upon which" the information from either one wheel or the other' wheel is'to bo printed. This strip of paper is brought up into contact with the surface of
the tvpe-wnpels by being moved upward when it is dPsired to print by an independent electro-magnet. Thus, in the Calahan instrument. two type-wheels, printing on the same strip of papel', and three electro-magnets, are used, each onp. of which is operative from the central station by the appropriate device, which senf]s pulsations of electricity through the wires which connect the central station WJth the receiVing instrument or instrulUents."
The third claim is £,)1' the combination of six elements: the typewheel upon which are figures; the type-wheel upon which are letters; the electro-magnet operating the letter-wheel; the electro-magnet operating the number-wheel; the electro-magnet operating the impression-roller, so that impressions may be taken from either wheel; and the impression-roller, The testimony for the plaintiff is to the effect that instruments made under the Wiley patent, No. 227,808, contain the invention specified in this claim. One of the two experts who were introduced by the defendant said nothing in regard to the Calahan patent or its infringement. The other did not deny infringement, but thought that the Theiler (Fronch) and the Jolll1son (English) patent, which was also for the Theiler invention, and which invention antedated Calahan's, contained the elements of his third claim: but the witness also testified that the Theiler patent does "not contain two independently moving typewheels, each ad,'anced by a magnet, independent of the magnet advancing the other type-whee!." TlJe Theiler patont has but one electro-mHgnet, which moves and stops both type-wheels simultaneously, and neither wbeel can be moved independently of the other. The connsel for the defendant argued earnestly that there was no infrmgement, hecanse, he insisted, t he function of the magnets, f and i, in the Calahan ratent, is entirely positive, i. e., to act directly upon and ll10ve a type-Wheel without extraneous aid; while the function of the rlefenrll1nt's magnets is entirely negative, i. e., to prevent and regulate continuous extraneous motion imparted to the type-wheel by clot.:k·wfU'k ; anrl that these ll1lgnets were not, at the date of the Calahan patent, knowll to be proper substi utes for his magnets, and are not" therefore, eqnivallDts therefor; and fnrthermore, that the Wiley macb.:ne is an impro\'eml nt upon the Theiler machine, but in a different directioll from the Calahan invention. It is ohviotls that tblE'e various suggestions involve questions of fact, and tilat the defelJ(lant has no testimouy, otner than that appearing upon the face of the various patents and iile-wrappers, upon "Which to support the thl ory of his coull,.;el. These questious the pateuts alone will not settle. A court cannot. deem itself called upon to examine elab Irate theo!;ies upon abstruse scientific suhjects, when the theories denenrl upl'n ql1estions of fact, in regrorJ to which there is an ahsence (If testim0ny. In this case, it is to be noticed that the defcllllaut'li t\\O experts have virtually declined to adJpt his theory.