Thomson-Houston Electric Co. v. Lorain Steel Co.

• Decision Date: 29 May 1902
• Docket Number: 126.
• Citation: 117 F. 249
• Parties: THOMSON-HOUSTON ELECTRIC CO. v. LORAIN STEEL CO.
• Court: U.S. Court of Appeals — Second Circuit

117 F. 249

THOMSON-HOUSTON ELECTRIC CO. v. LORAIN STEEL CO.

No. 126.

United States Court of Appeals, Second Circuit.

May 29, 1902

This cause comes here upon an appeal of the complainant in the court below from a decree of the United States circuit court for the Southern district of New York, dismissing the bill alleging infringement of the first claim of patent No. 390,921, issued to Charles J. Van Depoele, October 9, 1888, for a carbon contact or commutator brush. The following citations from the patent in suit, and discussion of certain defenses contained in the opinion of the court below, sufficiently and accurately explain the character of the alleged invention:

'The specification states that the 'invention relates to improvements in commutator brushes or contacts for use with dynamo-electric generators and electric-dynamic motors. In the operation of electric motors it is desirable for various reasons to use a thick brush or contact held by suitable mechanism in position tangential to the surface of the commutator; that is, projected endwise against it. (Concededly the word 'tangential' is a misuse for 'radially,' which the context shows was intended.) In these positions the brush may be moved around the commutator to any desired position without in the least affecting their mechanical relation thereto, and it has been usual to use thick bunches of thin copper laminae secured together at their outer ends for this purpose; but I find in practice that the leaves of brushes so constructed will get into the interstices or separations between the sections of the commutator, by the rotation of which the leaves of which the brush is composed will be gradually bent outward and away from each other, and so in a short time rendered useless. This difficulty I have overcome by substituting for the copper contact brushes heretofore used, brushes or contacts of carbon or other nonhomogenous substance, being porous, will in a short time take up a quantity of copper dust, and form a smooth wearing surface that is extremely durable.' After a reference to the drawings the specification proceeds 'My improved brushes consist of plates or pieces of carbon shaped to fit loosely within the boxes or holders where they are placed, and then securely held in position against the commutator by the tension of suitable springs, to be referred to. The carbon brushes or contacts, A, may be of any desirable length, or shape according to circumstances, the particular shape and size or proportion herein shown being merely for the sake of illustration. The lower ends of the brushes should be formed or molded to fit the surface of the commutator, the subsequent wear being sufficient to retain the shape originally given.' After setting forth the details of the boxes, or holders with their springs, etc., the specification concludes: 'In order to reduce the resistance of the carbon brush to the minimum, the boxes, CC', are brought down very close to the surface of the commutator, and should the small resistance then remaining be a disadvantage the brushes themselves can be plated with a good conductor, and all objection thus removed. I do not limit myself to the use of carbon alone, as any nonhomogenous or porous hard conducting substance will answer the purpose and come within the scope of my invention.'

'The first claim alleged to be infringed is: '(1) The combination, with a commutator cylinder formed of separated insulated segments, of commutator brushes bearing upon the surface thereof and formed of carbon or other similar unyielding material, and of a width greater than the distances between the commutator segments, substantially as described.' Four other claims, not alleged to be infringed, deal with details of holders, springs, etc. The only one in controversy here is the first or broad claim for the use of 'carbon' as a commutator brush.

'In view of the conclusion which has been reached, it will be necessary merely to allude briefly to some of the arguments which have been advanced on behalf of the defendant. It is contended that the patent should be construed as calling for some peculiar kind of carbon, which will hold copper dust as felt does rouge. This seems to be a very strained construction. Van Depoele, anxious to cover all possible equivalents, announced his invention as covering other unyielding material,-- 'any nonhomogenous or porous hard conducting substance,'-- but apparently he Didn't know any of them, other than carbon, nor, so far as the record shows, has any since been found. He found that the hard, brittle carbon of the art would, in operation, 'form a smooth wearing face that is extremely durable.' He had the idea that in some way or other this effect was obtained by copper dust worn off the commutator and taken up by the pores of the carbon. It makes no difference whether this idea of Van Depoele was correct or not; he has not made it a part of his invention. ' Carbon' is a broad word. It may be used to include a diamond or soot, but, according to all the canons of patent construction, it must be taken here as meaning the carbon known at the time to electricians under that name,-- the ordinary carbon of the art, such as was employed for the pencils of arc lamps, for battery plates, for rheostats or artificial resistances, and other similar electrical purposes. It was made up of some variety of coke either from petroleum or bituminous coal, the structure of the material being agglomerate; that is, it is practically numerous particles cemented together, leaving pores between the particles, but not large openings. The improvement of the patent may be obtained by the use of just such carbon pencils or blocks, and, inasmuch as the inventor does not indicate that the functions discharged by the new brush are to be secured by the use of some peculiar variety of carbon not then used in the electrical art, there is no ground for thus confining his patent.'

The court reached the conclusion that the patentee made an open and public use, not experimental, of carbon brushes on a motor in what was known as the 'telpher' system, for more than two years prior to his application for the patent, and on this ground dismissed the bill.

Thos. B. Kerr and Fredk. P. Fish, for appellant.

Richard Eyre and John R. Bennett, for appellee.

Before WALLACE and TOWNSEND, Circuit Judges.

TOWNSEND Circuit Judge (after stating the facts).

Counsel for complainant has critically analyzed the testimony, and contends that the conclusion of the circuit court is erroneous and contrary to the weight of evidence. This contention has been carefully considered. As the court says of some of the testimony: 'It is somewhat unsatisfactory being individual recollections of long-past dates unchecked by any record evidence. ' But this is the necessary or natural result of a failure on the part of the complainant to assert its rights under this patent until some 10 years after the occurrence of the events...