The Birmingham age-herald., 1911-01-10
SWEEPING VICTORY FOR INDEPENDENTS
Otto Automobile Engine Is Not
 an Infringement
INJUNCTIoNS DISSOLVED
Judge Moves Holds in His Decision That the Otto Engine Can Be Used By Automobile
 Manufacturers

1 New York, January 9.-The so-called independent automobile manufacturers
 won a sweeping victory today in the United States circuit court of appeals in reversal of the decree of Judge Hough l In the circuit court wherein the Selden patent was upheld
 The higher courts ruling declares that the defendants neither legally nor mor- | ally owed anything to the patentees, and holds that the improved Otto engine
 used by the defendants in motor vehicle construction is the equivalent of the Sel- den engine; but that it's use is not an in- fringement of the seden patent"
 Accordingly Judge Houghs injunctions against the Ford Motor company, Pan- hard and Levasser and others, restrain ing them from using the Otto engine on the ground of infringement, must be dis missed by the lower court to which the cases were remanded with such instruc- tion
 The opinion of the court of appeals, written by Judge Moves. says in part:
 While the conclusion of non-infrnge- | patentee empty handed with respect to the patent for the short time 1t has to run, 1t cannot be regarded as depriving him only through technicality of the first reward of his labors. He undoubtedly ap- preciated the possibilities of the motor ve- hicle at time when his ideas were re- garded as chimerical. Had he been able to see far enough he might have taken out a patent as far reaching as the cir cult court held this one was.
 'The Brayton engine was the leading engine at the time, and his attention was naturally drawn to it's supposed ad- Santages. He chose that type. In the light of events we can see that had he appreciated the superiority of the Otto engine and adopted that type for his combination, his patent would cover the modern automobile. He did not do so. He made the wrong choice, and we can not, by placing any forced construction upon the patent or by straining the doc Urine of equivalents, make another choice for him at the expense of these defend- ants who neither legally nor morally owe him anything"
 The Selden patent seeks to control the manufacture of virtually all gasoline au- tomobiles in America Many of the man. ufacturing companies hold licenses under that patent; but there are many others which operate independently and in de- fiance of the patent. The licensed com panies were formed into the association of licensed automobile manufacturers, which excluded the independent com- panies from its undertakings. such as an- tomobile shows and the like, and exten- give legal complications were precipi- tated. Under today's ruling the ground for contest between the licensed and un- licensed dealers Is removed unless the scope of the Selden patent is changed by subsequent ruling of the United States supreme court.
 Representatives of the Association of Licensed Automobile Manufacturers an nounced tonight that preparations were already being made to carry the mat ter to the supreme court. Application for writ of certiorari will be made by the Columbia Motor Car company and George B. Selden, 1t is stated.
 The statement of the association says that approximately 80 per cent of tho gasoline motor cars made in this coun- try are now licensed under the Sell den patent, many companies having ap- piled for license after Judge Hough's decision in 1909.