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

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the vibrating ends Of such reeds do not rest
on the same base as the other sets Of reeds
but extend down no farther thun the upper
surface of such reed board and are the entire
thickness of such reed board above the vbrat-
ing ends of the reeds in the other two sets
No arrangement Of reed board and reeds, adj
duced as anticipating the invention covered
by the first claim Of the PLAINTIFF patent con-
tains the entire arrangement claimed in that
claim
The second claim is in these words "The
reed board A, and the foundation board q,
constructed with the contracted valve open
ings ID, +, +, and the reeds arranged in rela-
ton thereto, all in the manner described"
| The expression, "the reeds" in this claim,
means, the reeds in the two sets and the adj
| ditional set In the specification and draw
ings d is the valve opening in the foundation
board and L, L, I are the throats or air pas
sages communicating with the reeds The
| language of the second claim, in connection
| with that of the descriptive portion of the
| specification and in the drawing figure 3,
indicates as testified by the plaintiffs expert,
Mr.. Renwick, that the idea conveyed by the
word contracted, when used in reference to
the valve openings and passages, indicated by
| the letters ID and F, is, that the valve open
ings and passages for the two complete sets
of reeds and the intermediate partial set are
| contracted or condensed within the same
| space which is usually occupied by the valve
| openings and passages for two complete sets of
reeds only, in an instrument of the usual con-
| struction previous to the date of the inven-
| ton" As otherwise expressed by the same
witness, the valve opening in the foundation
board and its valve ARE not practically of any
larger size than is required for the first two
sets of reeds only, so that the operator has
the advantage of using three sets Of reeds
throughout large portion of the scale Of the
instrument, without applying any more force
to the keys than is required for opening the
valves for two complete sets only" The
valve openings in the plaintiffs arrangement
are contracted from what their length and
size would be in an instrument with three
full sets of reeds, as in the tri-reed board
shown in the plaintiffs patent of 1866 The
difficulties arisi, 2; from the use of the long
valve Of the tri iced board with three full sets
of reeds, are pointed out in the testimony of
the plaintiff in his answer, before cited, TO
question b. on his direct examination. The
plaintiff, by his new arrangement, gets the adj
vantages Of three sets of reeds, SO far as three
sets are practically useful, and dispeuses with
the difficulties attending the large valve open
ings before used with three full sets of reeds,
and has valve openings no larger than would
be used in n reed board with only two full
sets of reeds. In this sense, his valve open
ings are contracted" when they are consid-
cred with reference to the reeds used with
them; and the invention claimed in the sec
ond claim is useful and patentable It has
been infringed by the defendants IN the max
ing and selling of Exhibit G. The invention
covered by it was new at the date of the
plaintiffs invention. Nothing is adduced that
anticipates it. 1t is not found in the plaintiffs
patent of 1866. The valve openings in Exhb-
it u are not the contracted valve openings Of
the plaintiff, but are as large as the valve
openings in tri-reed board having three full
sets of reeds. The lowest and longest reeds
in the two full sets do not, MS in the plaintiffs
arrangement, have their vibrating end, us
near together as they can be, with room only
between them for the tracker pin. Nor are
the plaintiffs contracted valve openings found
in any of the other prior reed boards of Day
| ton.
In.regard to the fourth claim, the evidence
shows that Independent hampers such as
| those mentioned in that claim were used in
| reed organs many years before the plaintiffs
invention. There was no invention in adapt
ing such hampers to a reed board having the
sets of reeds described in the plaintiffs pa
| tent of 1863.
1t is contended on the part of the offend
ants that the plaintiffs patent is void on the
| ground of deception and fraudulent descrip-
|, ton in the specification and on the ground
| of fraudulent and deceptive ms-descripton
| in regard to the method Of tuning and in re-
| gard TO the peculiar quality of the tone pro-
duced and in regard to the power of the in
strument and its case of operation and in re-
| gard to other matters, and because it claims
what is not described in the specification or
shown in the drawings. These objections
have been considered by the Court and are
not regarded as tenable.
1t is also commended that the plaintiffs pa
| tent is void because he has not disclaimed the
| inventions claimed in the third and fourth
| claims of his patent Assuming that, in
| suit where the third claim was alleged to be
| infringed and was involved, the Court would
on the construction proper to be given to such
| claim, hold that it was invalid it cannot be
held in this case that the plaintiff has unrea-
sonably neglected or delayed to enter at the
Patent Office disclaimer to either of those two
| claims. The questions involved in constru-
| ing those two claims, with reference TO their
validity On the points of novelty and patent
| ability are largely questions of law, and not
of fact, and the fact that the patent was grant
| ed for those two claims under the circumstan-
ces attending the granting of it, entitled the
| plaintiff to repose upon it as valid in respect
to those two claims until the decision of q
court holding otherwise. This is the view
deducible from the authorities, (OReilly v
| Morse, II Howard, G2, 12l; Seymour "
| Mccormick, 10 Howard 49, 1860 The
plaintiff is entitled to recover on the first two
claims of his patent, although he did not be-
fore the commencement Of this suit, dis
claim what is covered by his fourth claim in
a>much as lie was not guilty of unreasonable
neglect or delay in not making such discain.
er, hut he cannot recover the costs of this
suit, because he did not before this suit was
brought, file in the patent Office disclaimer
| of what is claimed by his fourth claim
| (OReilly v. Morse and Seymour V. McCor-
| mick. above cited; Tuck " Bramhiu
BLchf. C. G. r., % (; Hall V, Wiles > ID, 1874.
19S Smith V. Nichols, 81 Wallace III, and
| cases there cited)
When the plaintiff shall have presented to
| the court satisfactory evidence that he has
filed proper disclaimer of what is claimed
by his fourth claim, he will be entitled to
decree for a perpetual injunction and an ac-
| count of profits and damages, ms respects the
first and second claims of the patent, but
| without costs.
This case, because of the large interests in
| volved i'll it, and for reasons growing out of
the character of some of the evidence in il,
was heard before the Circuit Judge and the
District Judge sitting together. 1t was argu-
ed on both sides with great care, research,
ability and zeal, and We have given to it our
most earnest and attentive consideration.
| The results reached express the concurrnR
views of both of the Judges.
George +. Edmunds and Edward j. Phelps
for the plaintiff; William NJ. Eyarts, Edmund
Burke and Edward N. Dickerson for the do
PENDANTS.
CLERK's OFFICE U. S. CIRoUIT CoURT,l
DISTRICT OF VERMONT
hereby certify that the above and forego-
ing is true copy Of the original now on file
in this office. CEo. Z. JOHNSON
Deputy Clerk.