Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1878-11-29

30 as to read rs follows: "(2) The arrange
ment OF the diapason its octave set and the
Harmonic Celeste l., tuned as described, sub
stantially as described, so MS TO produce the
effect set forth CD in reed musical in
strument such as described, tuning the addi-
tional set L. in relation 20 the diapason, in
the manner set forth" At the same time he
added three new proposed claims as follows
40 The reed-board A, and foundation
board G., constructed with the contracted
valve openings ID, f. +, and the reeds ar
ranged in relation thereto, all in the manner
described CO. The diapason a, and its &C.
tave, or principal, B, arranged over the same
valve opening, as described, so that the oc-
tave unison may be produced where desired,
without the use of coupler and without any
additional pressure upon the keys; % in
connection with the reed-board A having the
sets Il, b and l., as described, the independ-
ent hampers b and NJ, as set forth" On the
18th of December, 1867, the application was
again rejected by the patent Office. The let
ter of rejection said The application above
referred to has been re-examined as amended.
The Office can see nothing patentable in the
first clause of the claim. Tho practice of ar
ranging the reed-board in one, two or more
sets of reeds, or parts of sets, is contemplated
in the references given and also in the case OF
Riley Burdetts sub-bass attachment, patent
granted September 10th, 1861 1t cannot be
upper part Of the valve when it is in prac-
tee to apply them to the lower part of it
and, in church organs, the stops, both reed
aud flute, seldom extend entirely through the
manual. In the second clause of claim the
tuning of the extra reeds is claimed as n
new feature in the arrangement claimed in
the first clause. The arrangement is the
same whether the reeds are tuned or not, and
the manner in which they are tuned cannot
ha IA pf tim
ing claimed in the third clause is fully an
swered in the references given. The fact of
this being reed instrument and the refer
ences pipe organs cannot affect the mode of
tuning, although this mode is applied to reed
instruments. See an ACCORDION made by
Bassen, 1GG Boulevard, Paris, at John f. FL
liss music store in this city. The fourth
clause Of claim is the same as the second, and
the remarks upon that clause are equally APP
plicable to this. The three additional claims
filed in the amendment of Nov 2Gth, 1867,
are fully anticipated in patent above referred
to granted to Riley Burdett, January 9TH
1866, and assigned to Jacob Estey d Co., ex-
cept the last claim, which features are not
shown in the drawings but are used in prac-
tice. The application is the second time re-
jected."
The plaintiff took an appeal to the examin-
ors in chief, and they, on the 20th of August
1868, rendered the following decision The
decision of the examiner, rejecting the sec
ond third and fourth claims is affirmed, and
his decision rejecting the first and the amend
cd claims, numbered five, six and seven, is
reversed. 1t is considered that the references
do not show the arrangement described in the
last mentioned claims, and that a patent
should properly be allowed therefor" There
upon letters patent were granted to the plain
tiff, on the Odd of February, 1869, for II years
from the oath of August 1868, on the forego-
ing specification with the claims above num-
bered |, 3, 6, Z, claims 3, 6 and being
severally numbered ., 3 and 4.
The entire contest in this case is as to the
novelty and validity of the LIST, I'd and 4th
claims of the plaintiffs patent. The plaintiff
has offered no proof that the defendants have
infringed the third claim The especial con-
test is as to the first claim. 1t is apparent
from the specifications in connection with the
four claims originally made that the plain
tiff originally intended to claim two things
list, his alleged new arrangement of the
reed-board; I'd, his alleged new method of
tuning his additional partial set of reeds
trhe above or below the back diapason set a.
The arrangement of the reed-board and of
the sets of reeds in it was intended to be
claimed, and was claimed, in the first claim,
without reference to any method of tuning
the additional partial set. The original sec
ond claim, claimed the arrangement of the
three sets of reeds in the first claim, with the
third set tuned in the manner described. 1t
is quite clear that the plaintiff did not intend
to claim the same thing by his original first
claim that he claimed by his original second
claim that he did not regard the alleged new
method of tuning the additional partial set as
forming any part of the first claim, and that
the patent office did not intend to grant to
him, and did not grant to him, in granting
the first claim, claim in which such method
of tuning formed any element The words
'to the effect set FORTH" in the first claim,
have no reference to the effect produced by
such method of tuning. The effect referred
to in the claim could extend only to an effect
produced by the arrangement specified in the
claim and such arrangement does not pro-
duce the effect referred to in the specification
MS that produced by drawing and using the
Harmonic Celeste in connection with the dia-
pason when the Harmonic Celeste is tuned
ms described. The words ''to the effect set
forth" mean no more than the words las set
forth" They do not have the same meaning
as the words in the original second claim,
$50 as to produce the. effect set FORTH" the
effect thus referred to being the effect pro-
duced by having the arrangement of the reed
board with the three sets of reeds as de-
scribed, aud tuning the third set in the meth
cd described, and thus using the diapason set
and the third set together.
In order to determine the questions involv-
ed as to the novelty and validity of the first
claim, it is necessary to first ascertain what is
the proper construction of that claim. 1t is
not only as has been shown. n claim into
which no method of tuning the additional set
of reeds enters as an element, but it is a
claim to the arrangement of Il reed board
having in it the sets of reeds 1t is claim
to the arrangement of the reed-board A, hav-
ing in it the two sets of reeds and the addi-
tional set Substantially and to the effect set
forth in the body of the specification. Tho
arrangement claimed is not merely one in
which there are the two sets of reeds and the
additional set but it is one in which such
three sets of reeds are arranged with refer
ence to the recd-board and to each other sub
stantially as and to the effect set forth in the
specification. The arrangement is described
thus The main reed-board contains two sets
of reeds running through the entire scale, q
diapason set and an octave set, the latter
tuned an octave above the diapason. The
lowest and largest reeds in these two sets are
placed with their vibrating ends as near to-
gether as they can be, with room only for tho
tracker- pin between them. But as the reeds
continually shorten as they advance upward
in the scale, it results that there is an unused
part of the reed board between the diapason set
aud the octave set, which unused part is con-
stantly growing wider. This hitherto unused
part of the reed-board the patentee calls "a
vacant space" 1t is not vacant space in the
sense of being space of mir occupied by no
material substance. LISA space occupied by
part of the reed-board, but not occupied by
reeds or by any other operative part of tho
mechanism 1t is vacant in that sense The
patentee proposes to occupy that vacant
space and make it of use by putting an add
tional partial set of reeds into it, and thus
getting with reed-board no larger than is
required for two full sets of reeds the sub
stantial advantages of three sets of reeds
which had not before been attained with so
small reed-board. Therefore, within, and
into the body of this unused part of the reed
board, commencing on tenor + and running
upward through the scale, he introduces a