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press upon a musical composition, and upon every note of it, his interpretation and his artistic conception of its musical effects and to embody them in the line thus drawn. These recorded effects may be either of time or sound volume according as the controller mechanism is adapted to one or the other. What Young gave the art was an idea made practical by mechanical means, whereby the interpretation of a master performer, or even of the composer, can be exactly reproduced with its precise artistic effects by an unskilled performer merely following the line impressed upon the sheet, not by his eye or by his mind, but physically by a pointer attached to the controller mechanism and extending over the music sheet. Young's line became the expression pathway of the master performer, and so long as one follows it without wandering, he will reproduce the master's actual performance. The skill of a great artist can thus be caught on the sheet, there impressed and preserved and be reproduced by anyone, anywhere, and for all time.
The defendant says that invention was not involved in this. We think it was. In the first place, it was a true discovery. It involved uncovering a thing, which, while long capable of being done, was never before thought of. It also afforded a medium or means for bringing the discovery into practical action, and put it into the hands of others, there to be turned to pleasurable and profitable uses. Young's thought that a line might be made to record a master's interpretation of a musical composition, and that anyone, however unskilled, who follows that line physically can reproduce the music of the master just as the master had rendered it, was not his invention. That was his discovery. It was, however, the soul of his invention. The very simple means of a pointer connected with the controller and extending over the music sheet to the line, by which his discovery was brought into action, did not, when standing alone, involve invention. But when this means, simple though it was, was employed to bring into being and put to use the substance of the discovery, the two together, the great and the little thing, constitute invention. Young's thought without the pointer is nothing more than an interesting discovery, and is not patentable. Morton v. New York Eye Infirmary, 5 Blatchf. 116, Fed. Cas. No. 9,865; Miami Copper Co. v. Minerals Separation, Limited, 244 Fed. 752, 157 C. C. A. 200. The pointer without the thought is a useless piece of metal. The world may use one without the other at will; but it is the use of both together that Young taught the art, and of which the unskilled who are anxious to produce music, as well as the skilled who are ambitious to perpetuate their fame, have availed themselves in amazing numbers.
We realize that the issues of validity and scope of the claims in suit, and consequently the issue of infringement, present aspects which admit of extended technical discussion; but as our reasoning follows that of the learned trial judge as shown in his opinion, and as our judgment on all issues is the same as his, we find it unnecessary to do anything more than direct that
The decree below be affirmed.
HOMER BROOKE GLASS CO. et al. v. HARTFORD-FAIRMONT CO. (District Court, D. Connecticut. February 18, 1919.)
PATENTS328-INFRINGEMENT-MACHINE FOR CUTTING MOLTEN GLASS. The Brooke patent, No. 723,983, for an automatic device for cutting or separating a flowing stream of molten material, particularly glass, held not infringed by a machine having a distinctly different principle of operation.
In Equity. Suit by the Homer Brooke Glass Company and the Owens Bottle Machine Company against the Hartford-Fairmont Company. Decree for defendant.
Frederick P. Fish, of Boston, Mass., and Charles Neave, of New York City, for plaintiffs.
John P. Bartlett and Thomas Ewing, both of New York City, for defendant.
THOMAS, District Judge. This is the usual bill in equity, alleging that letters patent No. 723,983 were granted to Homer Brooke on the 31st day of March, 1903, upon an application filed March 5, 1898, and charging the defendant with infringement, and praying for an injunction and an accounting. The defenses are invalidity and noninfringement.
The invention, as stated in the specification, relates to—
"devices for cutting or separating molten material, and especially is designed for cutting a stream of flowing molten glass into unformed molten masses of predetermined quantity and distributing the same into suitable receptacles."
The bill charges infringement of claims 1, 2, 3, 4, 5, 6, 7, and 9, but at final hearing counsel for plaintiffs withdrew consideration as to claims 1, 2, 6, 7, and 9, and now relies on claims 3, 4, and 5, which are as follows:
"3. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses, the same comprising a cutting knife and means for moving the same, and means for discharging the said molten masses into suitable receptacles.
"4. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses of predetermined quantity, the same comprising a knife and means for moving the same, a plurality of receptacles, and means for discharging the said molten masses into said receptacles.
"5. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses, the same comprising a knife and means for moving the same, a plurality of receptacles, means for discharging the said molten masses into said receptacles, and means for intermittently moving said receptacles into position to receive the cut-off masses."
In a suit brought by the Homer Brooke Glass Company against the Schram Glass Manufacturing Company (249 Fed. 228, 161 C. C. A. 264), the Circuit Court of Appeals for the Seventh Circuit has held the claims here in issue to be valid, and the decision in that case is
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
sufficient answer to that portion of the defendant's answer which alleges invalidity, especially in view of the fact that no new evidence of such controlling importance as to compel a different conclusion has been here offered in support of the alleged invalidity. So that infringement is the only question to be here discussed and decided.
The decision here to be given will be contained in the answers to two questions: First, Does the defendant treat a flowing stream of molten glass? and, second, Does the defendant's cutting device cut, support, and discharge, or cut and discharge, the cut-off portion of the molten masses? These questions will be considered in their order.
We can do no better here, in explaining briefly the purpose of the Brooke device and the difficulties of prior methods in manufacturing glass which Brooke sought to overcome, than to quote from the opinion of Judge Evans in the Schram Case, supra. On pages 228 and 229 of 249 Fed. (161 C. C. A. 264, 265) he said:
"The patent to Brooke relates to an apparatus for cutting and distributing molten materials, particularly glass, and is of particular value to the manufacturer of fruit jars, bottles, and other similar glass objects used by the public in large quantities, the cost of which constitutes an important factor in their successful manufacture. While the art of making glass articles is old, it was, prior to Brooke's device, deficient in a particular, an understanding of which is better obtained by a brief general description of the art to which it relates. In making articles of molten glass prior to this discovery, a considerable quantity of the molten material was taken from a furnace to a mold by a workman, called a gatherer, who, by the use of a 'punty' rod, injected into and twisted around in the molten mass in the furnace, first collected and then transferred it to a position over a mold of predetermined size into which the glass ran from the rod. Another workman stood by, and with shears cut this string or stream of flowing glass when directed. The gatherer then twisted his rod, so as temporarily to prevent glass falling off and until another empty mold was supplied, and then the operation was repeated. Machines for receiving this product, containing molds of predetermined capacity, were in common use, and, not infrequently, easy and ready method of substitution of one mold for another was provided. Some devices for receiving the molten mass in the mold, and for the prompt exchange of the molds, were patented, and at least one must be especially consideredthe patent to Steimer, No. 549,404, issued November 5, 1895.
"Brooke's contribution to the art consisted in producing an apparatus that would better, more rapidly, and more economically convey the molten mass from the furnace to the mold. Instead of the interrupted flow of glass, and the delayed method of transferring with a punty rod this substance from the large reservoir to the mold, in use prior to this discovery, appellee's device permitted the glass to flow continuously from the furnace, and the severing knives were made to act automatically, and means for supporting the severed stream were provided; the accumulated flow being poured into the opening of the next presented mold."
On page 230 of 249 Fed. (161 C. C. A. 264) will be found a clear and brief description of the operation of the Brooke device, so that it is not necessary now to do more than refer to it; but from the brief description, as well as the description of the operation of the Brooke device disclosed by the specification, it is clearly apparent that a continuously flowing stream of glass, flowing by gravity, is the kind and. character of stream which Brooke handles in the patent in suit.
The stream of flowing molten material and the stream of flowing molten glass are frequently referred to in the specification. The mech
anism embraces an automatic device for cutting a flowing stream of molten glass, means for discharging the same, and means for shifting the molds to receive the severed glass, and reference in the specification is made a number of times to the cutting knives acting upon the flowing stream. The specification finally concludes by saying:
"Of course it will be understood that I do not limit myself to the precise construction of devices here illustrated, as I consider myself to be entitled to broadly cover all means for cutting or separating a stream of flowing molten material into unformed molten masses and discharging the cut-off portions."
The claims in suit are for an automatic device for
(3) "Cutting or separating a flowing stream of molten material."
The claims not in issue are also directed to the same mechanism fed in the same way and they refer to
(1) "An unsupported freely-flowing stream." (2) "An unsupported freely-flowing stream." (6) "A flowing stream."
(7) "A continuously flowing stream."
So the evidence is conclusive that Brooke was engaged in solving the problem respecting the best method for handling and cutting off a stream of molten glass, steadily and continuously flowing from one receptacle to another without break or interruption, the flow of which is prompted or induced by no other means than the force of gravity.
It appears that the difficulty in the manufacture of glasswares and the efficient and economical handling of molten glass has been a problem which the manufacturers have endeavored to solve, and no doubt this problem has presented many engineering difficulties. The molten glass is viscous, and difficult to handle mechanically. Brooke solved the problem by treating or handling successfully the continuously flowing stream of molten glass.
The defendant claims that it also has solved the problem, only in an entirely different way and upon an entirely different engineering theory. It claims that its machine in no way treats or handles a continuously flowing stream, or a flowing stream, or stream of molten glass. It claims that its problem of engineering proceeds along entirely different lines and ideas, apart and entirely distinct from the principle disclosed in the Brooke patent. It claims that its machine more nearly approaches the hand punty method, in that a separate gather is obtained, somewhat similar to the gob or gather obtained under the old hand punty method, and thus a better result is obtained in the finished product. The defendant claims that it does not treat a flowing stream, but rather a gather or gob, a distinct entity, with each.
cycle of operation of its machine, and that its engineers entirely abandoned the Brooke idea, and developed an entirely new principle.
The evidence is conclusive that the Brooke cutting device and the defendant's machine are radically different in theory and in operation, and they certainly are in no way similar in appearance or operation. In the Brooke device the molten glass is allowed to escape through a hole in the bottom of the furnace, and it flows continuously without any interruption as soon as the plug is withdrawn to allow the molten. glass to escape from the furnace through the conduit and eventually to the molds, and this flow is continuous until the operation is stopped by inserting a plug to stop the flow.
But in the defendant's machine there is no hole in the bottom of the furnace to allow a stream to flow by gravity. The molten glass is held within the furnace and cannot escape until mechanically propelled over the lip of the dam by means of the paddle, because the crest of the spout is above the normal level of the molten glass in the tank. The spout is peculiarly constructed in order to aid in giving desired preformation to the gob. The spout is filled at each dip of the paddle. When the machine is put in operation, the paddle must make more than one stroke in order to get the full amount of glass over the dam, because there is glass always sticking to the paddle, and the walls of the spout and one paddle stroke will not supply the requisite gather or gob to hang off from the end of the spout. But, after the paddle and spout are once covered with glass, a separate stroke of the paddle is required for each separate batch delivered. The paddle does not deliver enough glass into the spout in a single stroke for two successive batches. There will be some glass left hanging 'in the spout after a paddle stroke, the same as there is some glass left on the end of a punty rod after the gather on the end of it has been cut with the shears.
The paddle is attached to the operating mechanism of the machine, and its operation is timed by means of gears and cam shafts. The paddle adjustment determines the amplitude of the stroke, and this varies accordingly as the article to be manufactured is large or small, requiring a large or small batch of molten glass to make it, and thus, in some respects, approaches the old hand punty method, or it is arranged so that a longer or shorter time may elapse between the delivery of the paddle-dipped glass to the spout and the severing thereof below the end of the spout, so that without change of weight of gob, if a relatively long time elapses, the gob will be long, and if a short time elapses, the gob will be short.
The gob is thus made to hang off the end of the spout, as it does off the end of a punty rod, until in connection with the amount delivered, the walls of the spout and the relation of the most forward position of the paddle to the shear movement, the gather acquires the desired preformation. After the predetermined quantity of molten glass is thus forced or pushed over the dam, the gather or batch is cut off by means of knives coacting and quickly severing the gob, and these knives in no way support, or even tend to support, the molten glass as it is severed by the knives, so quick is their operation.