J'll:DERAL. REPORTER, vol. 44. BRUSH ELECTRIC CO.
FT. WAYNE ELECTRIC CO.
(Oircuit Oourt, D. Indiana. December 10,1890.)
PATENTSJ'OR IWVENTIONS-ELECTRIO LAMPS-INFRINGEMENT.
The lamp manufactured under letters patent No. 219,208, granted to Charles F. Brush, September 2, 1879, for "av.electric lamp," isa duplex lamp, organized to burn two or more pairs of carbons successively, and its distinguishing features are the arrangement of the feeding mechanism, so that the carbons of the two pairs are dissimu1taneously separated to form the are, and after the arc is formed between two carbons one is fed towards the other as fast as it is consumed, and, when this pair is fully consumed. the electric current is automatically transferred to the other pair. This feeding mechanism is operated entirely by electricity. Brush showed in his specifications that the feeding could be done by a clutch mechanism, suggested that it might be done by clock-work, but expressly said that he did not limit himself to any specific mechanism for obtaining the desired result. Held, that the patent is infringed by a lamp having the same characteristics, and differing only m that the feeding mechanism is operated by clock-work, which, however, is brought into action and controlled by electricity; and it is immaterial that in the latter the carbons may be separated by hand. where it appears that if this 1& not done the machine will do it as in the BrUSh lamp.
In Equity. II. A. Seymour and Offield Fowle, for complainant. R. S. Taylor, for defendant. Before GRESHAM and BLODGETT, JJ. BLODGETT, J. This is a bill for an injunction and accounting, by reason of the alleged infringement of patent No. 219,208, granted to Charles F. Brush, on the 2d day of September, 1879, for "an electric lamp." The suit was commenced on the 1st day of July last, and COmplainant very soon thereafter moved for an injunction pendente lite, which motion was heard in the early part of October last. This patent has been four times before the courts of this circuit, and once before the circuit court for the northern district of Ohio, presided over by Judges BROWN, of the eastern district of Michigan, and RICKS, of the northern district of Ohio, in all which cases the patent was carefully considered in the light of the prior art, and its novelty and utility fully sustained. The only question seriously contested upon this hearing for injunction was that of the alleged infringement of the defendant's device upon the device covered by the complainant's patent. The defendants manufacture electric lamps, made substantially in accordance with a patent granted to James J. Wood on the 24th of Jt.ne last. The Wood lamp, like that of Brush, is a duplex lamp, orga.nized to burn two or more pairs of carbons successively, but the feeding device of the \Vood lamp is partially actuated by clock-work, instead of its being operated entirely by action of the electric current, as in the Brush. In the Wood lamp, however, the clock-work mechanism is brought into action and controlled by the electric current. The distinguishing features of the Brush lamp is the arrangement of the feeding mechanism, so that the carbons of the two pairs shall be dissimultaneously separated for the purpose of forming the arc, and that, after the arc is fornled, one of the carbons of the
BRUSH ELECTRIC CO. tl. Fr. WAYNE ELECTRIC CO.
pair between which the arc is formed shall be fed towards the other as fast as it is consumed, so as to presllrve a steady and uniform light, and that when the first pair of carbons is fully consumed, the current is automatically transferred to the other pair, and the arc is formed between them, which are in turn fed together by the feeding device until consumed. The Wood lamp has the same characteristics. The carbons of each pair are dissimultaneously separated, and the arc is formed by the action of the current pasl;ling through magnetic coils,'as is done in the Brush lamp, but the feeding, aR the burning carbons are consumed, is regulated in Wood's lamp by a clock-work. It does not seem to us that the interposition of this clock-work to do the feeding after the arc is formed essentially differentiates the Wood device from that of Brush. The electric current is the efficient motor in both lamps for forming the arc, and the action of the finding mechanisms. Brush evidently saw that the feeding could be done in many ways after the arc was established. He showed a clutch mechanism for doing the feeding, but expressly says in his specifications:
"I do not in any degree limit myself to any specific method or mechanism for lifting, moving, or separating the carbon points or their holders, so long as the peculiar functions and results hereinafter to be specified shall beaccumplished."
And further on in his specifications he suggests that clock-work may be substituted for his clutch mechanism. Before Brush entered the field, electric lamps had been contrived which burned two sets of car·bons alternately, shifting the arc from one pair to the other at short intervals,making a flashing, unsteady, and unsatisfactory light. The problem which Brush set himself to solve was to secure the complete combustion of one pair of carbons before the arc was transferred to the other pair, and the transfer of the arc to the other pair by the automatic action of the electric current, so that no attendant was needed to the second pair after the first pair was consumed, thus securing a lamp whi..:h would give a steady arc light of from 16 to 20 hours' duration. This he accomplished by his mechanism, which caused the dissill1ultaneous separation of the two pairs of carbons by the automatic action of the electric current actuating his separatin!"; devices, and a feeding device for bringing the carbons together as fast as they were consumed. This step forward in the art was taken by Brush, and at the present stage of the art it seems that the inexo.rable law of the electric (Jurrent requires that when two or more pairs of carbons are to be burned successively, the carbons of each pair must be dissimultant!ously separated and the arc produced between the pair last separated. Having done this for the art, Brush is entitled to cover all means equivalent to his own for obtaining the same result, one of which is a clock-work feeding device. The argument ingeniously and ably made in behalf of defendants is that Wood has evolved his lamp along the lines indicated by the inventions of Denayrouse and Meynall, who had preceded Brush. But neither of these inventors produced a lamp where the carbons would be burned
successively. It seems to be the history of many great inventions that the minds of many persons, without any concert of action,are at abou.t the same time attracted to the subject, and each sets him8elf at work to invent a mechanism which shall produce the desired new result and meet the felt public want. One of the experimenters succeeds while all the rest fail. After the one has succeeded it is easy to go back into the limbo of these old failures apd in the light of the successful machine, by:perhap!l sUght changes, make these old abortive attempts do the work of the successful inventor. But it is the successful experimenter who hus shown them the way, and he, and he alone, who is entitled to be called the inventor, and be protected by a patent. The successful inventor' may even have taken· advantage of hints and suggestions from the abortive attempts of others; but that does not entitle them, or anyone else, to appropriate his successful machine. It was strenuously urged by the able counsel for the defendant, both in his oral and printed arguments, that the Brush patent shows two feeding devices, while the Wood lamp shows but one feeding device or mechanism. This position, if correct, would hardly,we think, answer the charge of infringementjbut we do not entirely agree with the learned counsel in his position that Wood has only one feeding device. The clock-work mechanism of Wood is practically as much a separate device for each pair of carbons as the clutch mechanism of Brush, for, while Wood's clock-work is made to feed each pair of carbons in turn, it feeds the first by one pinion and the next one by another pinion,after the arc has been producecl between the second pair by the action of the olec-' tric current, thereby making his device as much a duplex feeding device as is that of Brush. The feature of the Wood lamp which allows the attendant when he lights the lamp, or puts the lamp in circuit, to separate the carbons of one pair by hand, instead of allowing that to be done by the operation of the electric current, as is done by Brush. does not, it seems to us, in any degree evade the Brush patent, because it clearly appears from. the proof and operation of the machines, as exhibited upon the hearing of the motion, that if the attendant did not latch up the upper carbon of one pair the machine itself would automatically do so, the same as it is done in the Brush lamp; and the manual separation of one pair of carbons. even before the lamp is lighted, is nothing but the adoption of Brush's dissimultaneous law., and it leaves the arc to be formed between the pair oicarbons last separated. In this as in almost all cases on infringement, there are slight differences in mode of construction and devices for the result accomplished by the patent. It is rare that we find an infringing machine which is copied with Chinese fidelity from that which it is claimed to infringe, but the infringers always endeavor to escape the charge of infringement by some modifications which shall apparently cause their machine to differ from that of the patentee. The essential thing, however, to be considered in all auch cases is whether the principle embodied and claimed in the patent has been substantially used by the defendant, and if we find that it .has Qeenso substantially
KANE '/I. HUGGLlIiS CRACKER & CANDY CO.
used it is the duty of the court to protect the patentee, however ingenious may be the mode of infringement. The motion for an injunction is therefore sustained.
KANE t1. HUGGINS CRACKER
Co. et al.
(Cirtmit Court, W. D.
Missouri, W. D.
December 11, 1890.)
PATlIllllT8 POR INVENTIONS-IN1i'RINGEMBNT-INrnNOTION.
Nor will injunotion be granted against the president of suoh corporation, who has been retained as an employe by the purchaser of the business of the corporation.
In -the absence of a prior adjudication of the validity of a patent and of proof of general acquiesoence therein, the court will not grant an injunction pmdente lite on a bill to restrain infringement, where the proof leaves it uncertain as to the patentability of the patented article, and where it appears that respondents have and valuable property. and are perfectly solvent, and the measure of compl81nant's damageun case his patent 18 finally established can be easily ascertained.
Banning, Banning k Paysun and Huston &: Pa7"l"ish, for complainant. Goudy, Green &: Goudy, Offield, Towle &: Linthicum, and Warner, Dean k Hagerman, for defendants.
PHILIPS, J. This is an application for injunction for the infringement of letters patent granted one George D. Moffat of Chicago, Ill., assignor of Thomas Kane, letters No. 356,394, dated January 18, 1887, entitled "Candy, and process of manufacturing the same." The Huggins Cracker & Candy Company is a corporation of the state of Missouri, at Kansas City, Louis Huggins is a citizen of the state of Missouri, residing in this district, and the American Biscuit & Manufacturing Company is a corporation of the state of Illinois, at the city of Chicago. Where the patent is clear on its face, and its validity is not assailed aliunde, injunction is not only an appropriate, but may be termed the natural, remedy for an infringement. Injunction is, however, an extraordinary remedy, and the discretion of the chancellor obtains in granting the writ in patent cases, as in other applications for injunction in equity. No further discussion of the meriUl of the patent in question will be indulged than is deemed necessary to warrant the conclusion reached on this application for a temporary writ. As to the Huggins Cracker & Candy Company the writ is refused, for the reason that I am satisfied, on the showing now made, that some three months prior to the filing of the bill herein this company sold and conveyed its stock, material, and plant to the American Biscuit & Manufacturing Company, since which time it has not employed the patented device in qnestion. As the office of the writ is to restrain an existing