The paddle then resumes its backward movement, and in doing so draws backward with it this viscous material, and nothing is dropping or flowing from the lip of the dam, but a small portion is supported on the lip of the dam, which becomes part of the next gather or batch, when the paddle pushes it over the dam during the next cycle of operation. This operation is repeated, and each cycle of operation produces a separate and distinct batch of molten glass. Moreover, the evidence is conclusive, and it is not disputed, that the level of the molten glass in the furnace is always below the level of the dam, so that no glass can flow over the dam, and none passes over the dam, except as the paddle, in performing its functions in the cycle of one complete operation, pushes a predetermined quantity over the dam; and this is, as I view it, a separate gob or gather, is not a flowing stream, and in no way an operation similar to that employed by Brooke. The engineering is along different lines. It avoids the theory adopted by Brooke. It does not treat a "stream"-"a flowing stream" a "continuously flowing stream." It deals with a separate entity, and that entity is the batch which is pushed over the lip of the dam by the paddle in its downward, forward, and backward movement in performing the work which devolves upon it. The severed mass then finds its way, by force of gravity, through a trough to the proper mold, where it is pressed into whatever article is being manufactured. Having thus disposed of the first question respecting the flowing stream of molten glass, let us proceed to discuss and decide the second question presented. If by any manner of means this molten glass going over the dam of the defendant's machine be construed to be a stream, still the defendant does not infringe, because the cutting knives on the defendant's machine perform one function only. They cut. They do nothing more. They perform, as nearly as possible, the function of the shears used in the old hand punty method. They do not support or husband the flowing glass, nor do they in the least discharge the cutoff portion. Under the theory which the defendant employs to cut the molten glass, the action of cutting must be and is nearly instantaneous. To be exact, the proof shows the time consumed in the cutting to be 1/20 of a second, and the time required for the complete cycle of operation of the machine to be 2 seconds, during 119/20 seconds of which the shears are at rest. The plaintiff's cutting operation involves more than mere cutting. In describing this operation in the Schram Case, supra, on page 230 of 249 Fed., on page 266 of 161 C. C. A., Judge Evans said: "The cutting knife 23 is cup-shaped, one side of which is provided with a cutting edge 24. Another knife which moves in the opposite direction, consists of blade 27, carried on the edge of an arm, extending from the hub (the arm and hub not being shown in the figure), all working automatically. When the constantly flowing stream of glass has filled the mold, the two blades come together as shown in B, the stream is cut, and the knife passes to the position C. While the glass is momentarily supported in the cup-shaped receptacle, as shown in Figure C, an empty mold is being brought into position underneath. In D, the tilting operation has been completed and the molten glass has been discharged from the receptacle into the mold underneath. The knife and the cup-shaped receptacle then resume their normal position by the action of · gravity. The molten mass proceeds to flow into the mold next succeeding." On page 1, line 58, in the specification of the patent in suit, the patentee says: "The upper series of knives consist of cup or trough shaped receptacles having a cutting edge and are designed to cut the stream of flowing molten glass and momentarily lift the same and discharge it into a receptacle beneath." Respecting the claim based upon this construction, the patentee A careful examination of all the evidence, therefore, discloses that the knives of the patent in suit cut, support, and discharge. From the claims in suit it appears that the knives cut and discharge. From the operation of the device it appears that the knives cut, support, and discharge. It is conceded that the knives cut. The cup-shaped knife supports the flowing stream while other operations of the machine are taking place and while the stream continues to flow. After supporting the stream-even momentarily, as Judge Evans finds in the Schram Case -the cup-shaped knife discharges the accumulation into the mold underneath. So it appears that the conclusion is imperative that the knives, when the machine is operating practically must support the stream during the interval of the mold shift, and that what is thus caught or husbanded must be discharged into the mold, and the cupshaped knife performs this function. The defendant's mechanism neither supports nor discharges. simply cuts. There is no support. There is no discharge in which the knives play any part. Instantly on being cut, the severed portion falls by gravity onto a swinging trough, and the cut-off portion is automatically deposited in molds presented to receive it. I can no better state my own views and conclusions respecting the patent in suit than to incorporate in this opinion the concluding paragraph of the defendant's brief as expressing briefly and tersely these views and conclusions: "A fair review of the patent in suit, the art relating thereto, and the testimony in this case demonstrates a distinct departure by defendant's machine from the machine of the patent in suit-a departure in construction and in mode of operation. Defendant's entire system is a different system from that of the patent in suit, founded on a different conception as to the way automatically to handle glass, worked out by a different method of automatic molten glass delivery, and involving apparatus different in construction. Brooke had his old flowing stream delivery patented apparatus. He was yoked to a flowing stream feed, and got up the apparatus of his patent in suit to handle a flowing stream feed. But defendant's engineers, after study of the situation, purposely and for sound physical reasons, turned away from the fundamental idea of Brooke. To them that did not seem to be the best way automatically to feed molten glass. They determined that they wanted a feed that would afford delivery to the shears of a preformed gobnot an unformed mass cut off from a flowing stream. So they invented and brought to successful commercial practice their unique machine, which forces masses of glass by separate paddle strokes into a specially designed spout, where the mass may stretch down, 'as from a punty end, and form a gob, never permitting the mass to break out of control into a flowing stream. The gob, preformed as a gob, is automatically cut off from the mass hanging from the spout as, prior to Brooke, it had been automatically cut from the mass hanging from the punty." Further discussion seems unnecessary. The defendant does not infringe. The bill may be dismissed, with costs to abide the event. WEBSTER ELECTRIC CO. v. PODĻESAK et al. No. 553. 1. PATENTS 191-NATURE OF GRANT. A patent conveys to the patentee only the negative right of exclusion, not the natural original right to make, use, and sell the device covered by it. 2. PATENTS ~212(2)—LICENSES-RIGHTS ACQUIRED BY LICENSEE. A licensee under a patent obtains only immunity from an injunction suit against him by the patentee or owner. Under a shop license granted by patentees to complainant for the term of the patents, with the sole right to maintain infringement suits and, a limited right to grant licenses, reserving to patentees only the right "to themselves make, use, and sell the inventions," such reserved right was not assignable, and did not pass by an assignment of the patents. 4. PATENTS 112(4)—PRIORITY OF INVENTION-DECISION ON APPEAL FROM PATENT OFFICE. While decisions of the Court of Appeals of the District of Columbia in interference proceedings are not conclusive in the courts, they are presumptively correct on questions of fact, and not subject to collateral impeachment, except for gross mistake or fraud. 5. PATENTS 328-VALIDITY AND INFRINGEMENT ELECTRICAL IGNITION DEVICE. The Kane patent, No. 1,280,105, for electrical ignition device for internal combustion engines, claims 3, 7, and 8, held valid and infringed. 6. PATENTS 125-VALIDITY-DELAY IN ISSUANCE. Mere delay between the application and issuance of a patent does not affect the validity of the patent. 7. PATENTS 328-INFRINGEMENT-ELECTRICAL IGNITION DEVICE. The Podlesak patents, reissue No. 13,878 (original No. 1,055,076) and No. 1,101,956, for electrical ignition devices, held infringed. In Equity. Suit by the Webster Electric Company against Henry J. Podlesak, Tesla Emil Podlesak, the Sumter Electrical Company, and the Splitdorf Electric Company. Decree for complainant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Williams, Bradbury & See and Jerome N. Frank, all of Chicago, Ill., and Livingston Gifford, of New York City, for plaintiff. Charles C. Bulkley and Gann & Peaks, all of Chicago, Ill., and Sturtevant & Mason, of Washington, D. C., for defendants Sumter Electrical Co. and Splitdorf Electric Co. Henry Joseph Podlesak, of Chicago, Ill., pro se. William D. Thompson, of Racine, Wis., and William L. Hall, of Chicago, Ill., for defendant Tesla Emil Podlesak.. SANBORN, District Judge. Original and supplemental bills for patent in infringement and unfair competition. Suit was commenced October 12, 1915, and the supplemental one October 25, 1918. The patents involved are as follows: No. 13,878 (reissue), to Emil Podlesak, February 9, 1915. No. 947,647, to Henry J. and Emil Podlesak, January 25, 1910. No. 948,483, to the same persons, February 8, 1910. No. 1,003,649, to the same persoLs, September 19, 1911. No. 1,022,642, to Henry J. Podlesak, April 9, 1912. No. 1,056,360, to Henry J. and Tesla E. Podlesak, March 18, 1913. No. 1,098,052, to Emil Podlesak, May 26, 1914. The supplemental bill is for infringement of the patent to Edmund J. Kane, No. 1,280,105, September 24, 1918, application Feb. 2, 1910. These patents all relate to current generators for ignition applied to internal combustion hit and miss engines, and improvements. The validity of the Podlesak patents was not a matter of controversy on the trial, by reason of the fact that the plaintiff and the corporate defendants are licensees or assignees of the Podlesak patents, and hence are estopped to question their validity. Thus the controversy involved the construction of the two license contracts, Exhibits C and D, explained later, as well as the validity of the Kane patent, brought in by supplemental bill. The contracts referred to, with two others, are in substance as follows: By Exhibit A, license agreement of November 2, 1908, the Podlesaks give to plaintiff's predecessor the exclusive license to make, use, and sell within the United States, for the term of any patents which might be granted, applications No. 76,559, 413,068, 413,069, and 413,070, and convenanting that, while the license was in force, they would not grant, permit, or encourage others to make, use, or sell the inventions. It was agreed that the agreement should extend to and be binding upon the heirs, assigns, and legal representatives of the Podlesaks and the successors and assigns of the corporation. It is claimed by defendants that this agreement was revoked some time before February 5, 1914, when Exhibits C and D were made. Exhibit B, August 17, 1912, is a contract between the Podlesaks, dividing their interests among themselves in the patents in question, and serial No. 618,483. By license agreement, Exhibit C, February 5, 1914, the Podlesaks granted to plaintiff the exclusive right to make, use, and sell the inven tions described as Nos. 947,647, 948,483, and 1,003,649 within the United States for the patent terms, covenanting that they would not, while the license was in force, make, use, or sell the inventions, or permit, grant, or encourage others to do so. The same provision as to assignment was also contained in this license. By the shop-right agreement, Exhibit D, February 5, 1914, the Podlesaks made a contract with plaintiff, reciting that they were owners of patents Nos. 1,022,642, 1,055,076, and 1,056,360, and applications Nos. 734,143, 668,153, and 639,738 and that plaintiff desired to secure a shop right and license to make, use, and sell the inventions in the United States for the life of the patents, and that it was therefore agreed that the Podlesaks granted to plaintiff a shop right and license to make, use, and sell the inventions described in the patents and applications in the United States for the terms of the patents. The corporation further agreed that it would use the devices made under this shop license only in connection with or for repairs to the devices mentioned in Exhibit C, and if made or sold not as a part of such devices the corporation would pay royalty, 5 per cent. of gross receipts. The licensors agree "that they will not, while this license to the party of the second part is in force, give or grant shop licenses to make, use, or sell the herein said inventions, expressly reserving, however, the right to themselves to make, use, and sell the herein said inventions"; this agreement to be terminated upon the termination of Exhibit C. The same clause as to assigns is contained in this paper as in Exhibit A. By clause 8 of Exhibit D it is provided that the plaintiff with the written approval of the Podlesaks, may grant shop licenses, to makers of or dealers in gas engines or gas engine accessories, embodying the inventions of patents 1,022,642 and 1,055,076 (the latter being for a bracket to mount the magneto upon the engine), on the same terms as to use only in connection with the inventions licensed in Exhibit C. By the ninth paragraph it was provided that the plaintiff "shall not permit or encourage other parties to manufacture, use, or sell devices covered by hereinbefore mentioned patents or patents that may be granted on herein said applications," except as above provided as to licenses to engine builders or dealers. In the second paragraph it is agreed that both parties should assist each other in procuring patents, and in any suit or proceeding brought under any of the patents or for their infringement; but the Podlesaks should not be required to bear any expense in any such suit, and they appointed the attorney for the plaintiff as their agent or attorney for the purpose of joining them as complainants in any such suit for infringement, without expense to the Podlesaks, who were to be exempt from liability for damages and costs in such suits, which were to be assumed by the plaintiff. A further agreement, made January 20, 1915, Exhibit E, changes the royalty and contains the same agreement as to assigns. The Podlesaks having on September 4, 1915, assigned all these patents to the Sumter and Splitdorf Companies, and the contracts, Exhibits C and D, the construction of the license agreements becomes very important. |