signed, that he ha.dcaused the defe.ndant to be disch31'ged from custody,:;. '}, It is, ordered that the petition be; dismissed, at the of the petitioner. :, i
MER(}lll1\!ITHALER LINOTYPE CO. v. PRESS PUB. CO. et at:
(Cireuit Court, S. D. New York.' July 21, 1893.)
FOR' INVENTIONB-TYPESE'rTING 'MACIIINE-INFRINGEMENT.
SAME-FAULT IN ORIQINAT, MACHINE.
',InEquity. Action by the Mergenthaler Linotype Company against the Press Publishing CJompany and others for infringement of letters patent. Decree for plaintiff. For opinion on motion for preliminary injunction, see 46 Fed. Rep.114.· , Frederic Betts, for complainant. R Philipp, Leonard E. Curtis, and George H. Lothrop, for defendants.
COXE,District Judge. ,Thts is an equity action for infringement .based upon two .letters patent granted to Ot1Jman. Mergenthaler for "improvements in for producing printing bars." The first of these patents, No.. 313,224, is dated March 3, 1885, and the second, No. 317,828, is dated May 12,1885. It is insisted by the complainant that the principal invention covered by these patents is fv.ndamental, that it has revolutionized the art of printing and is the first practical advance i:o, the art since the days of Guttenberg. The machine which embodies this invention produces a line of type cast in a solid bar, complete in itself and ready for printing, an9, to its printing face, possessing an the characteristics of a line produced by the hand of the compositor in the old laborio'lls way. The advantages of the new method over the old are so obvious and so numerous that it is unneceS'Sary to attempt their The;}' are conceded 0]1 all sides; by men of science, and men of labor, by editors,by compositors and by the A minute and accurate· description of the ingenious and complicated machine of the patents would
MERGENTHALER LINOTYPE CO.
PRESS PUB. CO.
extend this opinion far beyond appropriate limits. It suffices to say that the operator, by playing upon finger keys, is able to assemble a line of intaglio type as desired. This line is locked in position so as to close the open face of a mold into which type metal is injected. In this way a type bar 'is cast, of the proper height and length, containing a complete and properly adjusted line of words. The line is then unlocked and the matrices com· posing it are returned to their original positions. All of these functions are performed automatically. The inventor says regarding the invention of the first patent, No. 313,224, that i t "Is directed to the rapid and economical production of letterpress printing, and relates to a machine to be driven by power, and controlled by finger keys, adapted to produce printing forms or relief surfaces ready for immediate use, thus avoiding the usual operation of typesetting, and also the more recent plan of preparing by machinery matrices from which to cast the forms. By the use of my machine the operator is enabled to produce with great rallidity printing bars bearing in relief the selected characters in the sequence and arrangement in which they are to be printed. In short, the machine will produce printing forms or surfaces properly justified, and adapted to be used in the same manner and with precisely the same results as the printing forms composed of motable type. My machine embraces two leading groups of mechanism: First, those which form a temporary and changing matrix representing a number of words; and, second, those by which molten or plastic material is delivered to the matrix and discharged therefrom in the form of printing bars." .
The claims involved are the forty-seventh and the sixty·third. They are as follows:
"(47) In il.machine for producing stereotype bars the combination, substantially as hereinbefore described, of the changeable or convertible matrix, the mold co-operating therewith, and appliances, SUbstantially such as shown, for melting metal and for forcing the same into the mold." "(63) In combination with a mold open on two sides, a series of moveable matrices grouped in line against one side of the mold, a pot or reservoir acting against the opposite side of the mold, and a pump to deliver the molten or plastic material into the mold, as described and shown."
Less than two months after the application for this patent was filed the second patent, No. was applied for. The machine of the second patent is an obvious improvement upon that of the first and for this reason it was the machine that found favor with the publ'ic. I cannot doubt, however, that the machine of the first patent was operative and able to do the work described by the patentee. The machine of the second patent, though operating upon the same general principle 'as the first, differs in several important details, the most radical change being the substitution of independent matrices for the connected matrices of the first pat· ent. In the former the matrices were arranged one above the other on the edge of a long bar, in the latter each is independent of every other, and all are stored in appropriate holders from which they are released by the finger keys. If, for instance, the operator desires to farm the word "and," he tonches the keys bearing, respectively, the letters a-nod, and corresponding matrices are 'immediately discharged and carried in proper order to a common assembling point. Regarding the machine of this patent the inventor says:
"My invention relates to a machine in which a series of loose Independent matrices or dies each containing one or more characters, anll a series of blank dies for spacing purposes, are combined with finger keys anll intermediate connecting and driving mechanism iIf such manner that whell power is applied to the machine and the preferred finger keys actuated the matrices will be assembled or composed in line. A mold of suitable form is arranged to be operate'd in connection with the assembled dies and with means for supplying molten metal or its eqUivalent, whereby a printing bar may be formed in the mold against the assembled matrices, sO,as to bear on its edge in relief the characters represented by said matrices."
The first claim only is involved.
"(1) In a machine fO'r producing printing bars, the combination of a series of independent matrices each rllpresenting a single character or two or more characters to appear togethel" holders or magazines for /laid matrices, a series of fillger keys representing the respective characters, intermediate mechanism; substantially as described, to assemble the matrices in ,line, and a casting- mechani/lm, substantially as described, to clroperate with the assembled 'matrices."
is as follows:
Abroa(l. construction was given this claim when the patent was conside:l'ed by this court upon a motion for a preliminary injunction. 46· Fed. Rep. 114. The defenses are the usual ottell-"-lack of novelty and invention and . ' ,' T;he tWQ ,patents will hereafter be considered together as they relate to the same fundamental invention. The inventor says in the description of No. 313,224:
"I also believe myself to be the first to combine 'with a chl'ingeable or convertible matrix-that is to say, a matrix composed of a series of dies or individual matrices adapted for transposition or rearrangement, a mold and a castinJ: mechanism."
In No. 317,828, he says:
"I believe myself to be the first to combine with independent disconnected matrices each bearing a single character, finger keys, intermediate mechanism for placing the designated matrices in line, and a casting mechanism which clroperates with the line of ,assembled matrices in such manner as to take a single cast from the entire line; and it is to be distinctly understood that my invention covers such combination in any form the equivalent of that herein detailed."
:ft is thought that these assertions ar.e well he was the first to do both of these things. His patents are, therefore, entitled to a liberal construction. Machines operated by fingerkeys, the object of which was "to cast, dress, and set up type in a continuous line for solid matter or book or newspaper work, the line being afterwards divided off, justified, ,and setup in column, as usual,",lwere old. So were machines "by means of which types or dies for printing can be set up in: rows in the requisite succession by means of pivoted keys, and on which provision is made for instantly and simultaneously redistributing all the characters to their proper. places by a slight movement of the distri,bllting frame." So were machines designed 'Imechanically to arrange an alphabet or alphabets of dies which dies shaII>fol1D impressions in the material for a mold corresponding with the composition of matter desired in a stereotype, and; second, in the same or similar mechanism with a substitution of female ,dies, and other appliances;
MERGENTE:l.LER LINOTYPE CO. t1. PRESS Pl'B, CO.
cnanges, and attachm.ents made necessary .by such substitution of dies, and the work to be done, as shall enable the operator to produce directly the stereotype instead of the mold." These three machines--those of Wescott, Morgans and GaIly-are the nearest approximation to the Mergenthaler machine to be found in the prior art. By means of them single type were cast automatically, impressions from intaglio type were made in soft metal and stereotype molds or plates of soft material were produced. Neither singly nor combined could they do the work of the Mergenthaler machine. The skilled artisan would study them in vain for any suggestion of a "linotype." The idea is not there. The patents, then, are not anticipated. The court has no doubt that it involved invention to construct the patented machine. No one who has seen this wonderful machine, which, in operation seems almost human, can doubt the truth of this proposition. The defendants, evidently, do not doubt it for their main effort is to secure a construction of the claims so narrow that their machine will escape infringement. As already seen the court is of the opinion that nothing in the prior art requires a narrow construction of the claims. Complainant is entitled to liberal treatment at the hands of a court of equity and to a construction broad enough to hold as inf,ringers all who produce "a linotype" by similar or equivalent combinations. This general statement of opinion as to the scope of the patents eliminates from the discussion many of the minor criticisms urged by the defendants. The proposition upon which they appear to lay the greatest stress is that neither patent describes or claims an operative machine because neither is capable of "perfect justification," viz.: making lines of exactly the same length. Their contention proceeds upon the untenable proposition that the machine which produced the ''linotype'' was valueless because it did not produce an absolutely perfect ''linotype.'' Such a proposition, if sustained, would condemn to obscurity some of the greatest works of human genius. A great poem may be marred because the meter halts at times, but it is a great poem still. Even the masterpiece of Rubens was improved by the touch of his pupil, Van Dyck. It is true that the first specimens produced by the Mergenthaler machine are wanting in "perfect justification." They did show, however, that a great advance had been made in the art of printing even though the words were not spaced apart so as to be mathematically uniform at the extreme ends. The defect' was one that was at once suggested by printers, and the patentee and others immediately set to work to remedy it. This was not a difficult task and was soon accomplished. As was said by the public printer in writing of the invention as early as May, 1884:
"Even in this short time during which I have been familiar with the matter, the progress made has been wonderful, and in my judgment, but little remains, and that merely mechanical, to make the invention perfect."
Concede that the machine when first produced was not perfect and that to Schuckers belongs the credit of producing the spacers
wni<lh "nuide if perfect. "Cui bono? It would 'certainly be a novel d0Ctri'B«:ft<> deny to an inventor the fruits' of a broad, invention: beca1ise the machine which flrstiell1bodied it was rudimentary in charactel.'abd"failed to do as good work as inlproved machines made subsequen:t$'.' :lS"one of the great inventions could survive such a test. Ten: yelirs after the invention of Howe, the machine first made by' hiln would hardly have satisfied the least exacting sewing woman. The Dodds'an:d Stephenson locomotive would, only a short time after its coristruction, ,have been discarded, as behind,the age even by the ,of' Tasmania.· ", The' telephone of Bell .is not the perfected telenhone of Morse telegraph 'IS looked upon to-day as:ah interesting And yet, it would be an unheard· of proposition W withhold from these illustrious men the credit they deserve beeauli1e their machines were crude at first and were improved afterwards. The lines in the copY' produced by the first 'Mergenthai1er tnMhine wereliaible to vary by one sixty-fourth of an inch. :Tlfis'Was not perfectanil printers complained. The defect was reniedied'by SUbstituting expansible space bars' for the oldfashioned nnadjnstable space bars so that the line 'of matrices could be pressed out to the end with perfecf accuracy and lines of type cast of exactly the same length. When the third Mer· whichclainls expansible spacers, was under con· sideration on the motion for a preliminary injunction the defendants insisted that it required: Jioinvention to introduce these spacers, that their u8ewould have:been suggested to the skilled mechanic by several references to the prior art. Now, on the other hand, it is al'gued that the inyentionbegins and ends with the space bars. These space bars al'e, unquestionably, an important adjunct to the combination. They l'ound out the invention and make it perfect. It may also becollceded that they are ingenious devices requiring invention to produce, and that the credit for them belongs to Schuckers and not to Mergenthaler; but to assert that the former is the pioneer inventor and the latter an unsuccessful bungler seems to the court very far from the truth. Mergenthaler produced the ''linotype,'' Schuckers-if:he made the spacers-improved it, but Schuckers was no more its originator than a proof-reader is the author of a book whose errors of spelling and punctuation he has corrected. Do the defendants 'infringe? The introduction of the expansible '. space bal's and the natural evolution of the art have 'produced some obvious changes in the construction of ''linotype'' machines. The defendants contend that because they have introduced these changes and made improvements they do not infringe. It is plain that if the claims are to be limited to the precise apparatus described and shown the defendants do not infringe. It is equaIlyclear that they do infringe if the claims are liberally construed. For reasons already stated complainant is entitled to the latter construction. The defendants use the so-called Rogers machine which was first introduced to the public in 1890. One of the expert witnesses for the complainant describes it as follows:
'lJ.' PRESS, PUB. CO.
"The Rogers machine is a mechanism for producing the same character of type bar as the Mergenthaler machine, and intended for identically the same use and constructed to reach the same ends. In the machine there are a series of female' or intaglio type, each one 'cut into 'the Side' of a bar, and these bars are strung upon ro<).s, which aU incline from the point where the matrix bars are stored downward to the point' where the matrix bars are to be assembled. By pressing on finger keys these matrix bars can be caused individually 'to leave the position where they are stored, and can run down upon the incline rod, and it will be seen that the bars are assemb1ediil ,any desired' order in that part of the machine which is adjacent to the casting mold. After the bars, with the requisite matrices upon them, have been assembled in line, the mold, can be made to co-operate with the bar in such a way that the bars close one of the faces of the mold, and so that. when molten metal is cast into the mold, the resulting casting will have on that face adjacent to the bars male characters formed thereon, by reason' of the molten metal having been retained in the mold by the matrix bars, which closed one of its faces, and which presented to the metal the intaglio type or matrices arranged in the desired ol,".der. A melting pot is shown in which the molten metal is held, and where it is kept fluid, and a pump is represented as in this pot for the purpose of injecting the metal from the reservoir into the mold."
The Rogers machine is smaller, cheaper and simpler than the machine of the patent. It is probably fair to say that it is an improvement, but it is manifest that it operates upon the sameprinciple and contains the same general features as the Mergenthaler machine. It produces the same line of type from the same material for the same purposes and in substantially the same way. It has the changeable or convertible matrix, the mold co-operating therewith and appliances for melting metal and forcing it into the mold. It has also a mold open on two sides, a series of movable matrices grouped in line against one side of the mola, a melting pot against the opposite side of the mold and a pump to force the molten material into the mold. It also has a series of independent matrices, each containing one or more characters, a series of blank spacers, combined with finger keys, a mold and means for supplying molten metal whereby a printing bar may be formed against the assembled matrices. In short, the defendants' machine has all the elements of the three claims in controversy, or their equivalents, and accomplishes all the results of the combinations of the claims in identical or similar manner. , The differences pointed out by the defendants have not been overlooked. There is no doubt that they exist, but for the reasons stated they are not thought to be material. Mergenthaler has mad\' an invention of unusual merit and is entitled to reap the reward. It follows that the complainants are entitled to a decree for an injunction and an accounting.
TIlE HAYTIAN REPUBUo. UNITED STAT,ES v.' TIlE HAYTlAN REPUBLIC. . (District Court, D. Oregon. August 8, 1893.)
L .ADM'tRALTY 'pLEADING-ExOEPTIONS
, Where, after the argument 'of exceptions to a libel, a brief Is filed, In which, for the first time, the' point is made that the facts set 1lP In the exceptions cannot be thus raised, but are available only by answer, the court Will consider' the questions presented 'upon the· assumption made by both parties in the argument, that such facts were properly presented, wi1Jhout determining the tecImicalquestion of pleading. . The United States is entitled to but one decree of forfeiture against a vesse}. for Several past violations of the revenue laws, and where a vessel has been once .libeled fOJ! several such violations, and released' on bond, she Is not thereafter subject to a second seizure for alleged violations committed during the same perlofl as those for whIch she has already beenl1leized. The Langdon (''heves, 2 Mason, 59, distinguished.
BREAOHOF REVENUE LAWS ' BUT ONE LIBEL FOR
TO LIBEL-WAIVER OF OBJEOTJONL
ADMIRALTY PRACTICE SEVERAL OFFENSES.
SAME-bENDMllINT OF LIBEr.--DISCOVERY OF NEW OFFENSES.
The United States, uyon finding evidence of violations of the revenue laws COmmitted by a vessel dUl'ing the same period as those for whiidb. she has already been libeled; may avall themselves of such discovery by amen(lIng the libel. Wherlil a vessel libeled for violation of the revenue laws lel released upon a bOnd of doubtful legality, the United States cannot maintain a second libel for other violations 'of the revenue laws, committed during the same period as those for whIch the first libel was filed, Without dismisslng 1Jhe ·first proceeding.
BOND-VAJ,IDITY. . ,
4. SAME-ILLEGAL RELEASE BOND-NEW LIBEL.
A release bon(l for a vessel seized for violation of the revenue laws, Which contAtnsno condition, and is for double the vaJue Of the vessel as if drawtt under Rev. St.§ 941, is valid, under section 938, as an obllga. tion to· pay at least the value of the vessel; since the condition is con· tained in the f;tatute. In a llbe1'by the UnltedStates agaInst a vessel for breach of the revenue that her master attempted to land' Chinese laborers laws, at a port of the United States does not charge a crime. .
SAME-MATTER PLEADED IN ABATEMENT-PRIOR SEIZURB IN ANOTIJER DISTRICT. CKINESlll LABORERS,
A seizure of a vessel for violations of the revenue laws, Rnd her release on bond, may be pleaded .in abatement of a subsequent Ube1 In another district for' iJimllar offenseS committed during the same period as those for which the first libel was filed.
In Admiralty. Libel by the United States against the steamer Haytian Republic for breach of the revenue laws. Heard on claimant's exceptions to the libel. Exceptions sustained. John M. Gearin, Sp. Asst. U, S. Atty. C. A. Dolph, W. H. Gorham, and O. F. Paxton, for claimant. BELLINGER, District Judge. On May 28, 1893, the steamship Haytian Republic was seized at Seattle, in the district of Washing.