Russell v. JP Seeburg Corporation, 7550.
| Decision Date | 10 December 1941 |
| Docket Number | No. 7550.,7550. |
| Citation | 123 F.2d 509 |
| Parties | RUSSELL v. J. P. SEEBURG CORPORATION. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Casper W. Ooms and Callard Livingston, both of Chicago, Ill., for appellant.
Albert G. McCaleb, of Chicago, Ill. (Robert H. Wendt, J. David Dickinson, and John F. Eakins, all of Chicago, Ill., of counsel), for appellee.
Before EVANS, MAJOR, and MINTON, Circuit Judges.
This appeal deals with a patent on an electric apparatus which is used in connection with a "coin-controlled electric shooting gallery" in which the bullets are flashes of light directed by a light rifle at a light sensitive target which actuates an electrical hit-signal means when the marksman's aim is true.
Of the main apparatus, the coin-controlled electrical shooting gallery, little need be said, save that so-called basic patents owned by defendant covered it, and no dispute between the parties exists as to the apparatus or the scope or validity of the patents covering it. The controversy here is over another apparatus which is used in connection with such coin-controlled electrical shooting gallery, and for the purpose of preventing its fraudulent operation. This patent does not pretend to cover the coin-controlled electric shooting gallery.
Briefly stated, the facts showing the development of this phase of the shooting gallery industry, are:
Shooting galleries where a man shot at a moving object were old in 1935 when defendant began ("pioneered in," it says) its work in electric shooting galleries. Well known was the game which the operator of a shooting gallery offers to the public in amusement parks, county fairs, and other like places, and where, for a consideration, the marksman may endeavor to hit a moving object. Business, in this industry, was greatly enhanced by the appearance of defendant's galleries, in which, instead of shooting bullets, the marksman shot flashes of light at a light-sensitive target. Defendant states its sales up to January, 1937, were large, — 12,000 machines, for which it received $371,000. Defendant's machine, known as "Duck Game Rayolites," was succeeded by another machine called "A Chicken Sam." In a short time, sales of this machine reached nearly a million and a half dollars. This machine too became obsolete when the public tired of tramp targets. The moving object in the first machine was a flying duck and in the second machine, a tramp, supposedly a chicken thief, was used. His movements were determined by the success or failure of the marksman as he shot the light bullets at a light sensitive spot in the moving tramp's shoulder.
Shortly after the appearance of the first electric shooting galleries, it was discovered that flashlights could be used to which the light sensitive target responded. The need of coins was avoided, and the profits of the game were thus either lost or diminished. Those who resorted to this practice were, in the trade and by the witnesses in the court below, called "wise guys." It was to prevent their interference with the legitimate revenues of the business that plaintiff's assignor labored and brought forth his alleged invention. This inventor was Nathen E. Squire. He filed his original application, April 17, 1936. Upon a divisional application filed October 9, 1936, the patent in suit issued, January 23, 1940, and bears the number, 2,187,989. Squire assigned his application to Ford Amusement Devices, Inc. It ultimately passed to plaintiff.
In another patent suit begun in 1935, involving an electric rifle game, the Squire invention, which was used on one of the exhibits, was disclosed. One of defendant's customers, Eggers, in the year 1936, claimed to have conceived and built a fraud preventive circuit, allegedly without the knowledge of the Squire apparatus, but somewhat like it. In 1937, Eggers filed an application for a patent on his apparatus. He later assigned this application to defendant's attorney. An interference was declared with Squire, and a trial had which resulted in a victory for Squire, who was found to be the first inventor. Subsequently Squire's application was favorably passed upon, and the patent in question issued.
In the specifications Squire asserts:
"One of the objects of this invention is the provision of means for preventing the operation of the target releasing mechanism including an electrical relay by the use of a beam of light from a source other than that of the gun of the shooting gallery."
Claims 8 and 11 read as follows:
The defenses are: Invalidity; non-infringement; and lack of proof establishing title to patent in the plaintiff.
The last two defenses are hardly worthy of serious consideration. Defendant is highly hypercritical in presenting the last defense.
The abstract of title to the patent showed:
(a) Application by Squire;
(b) Assignment by Squire to Ford Amusement Devices, Inc. (c) Assignment by Ford Amusement Devices, Inc. to Callard Livingston.
(d) Assignment from Callard Livingston to John A. Russell, plaintiff herein.
The defense is based upon the alleged failure to show proper acknowledgment to the said assignments by the proper parties. Further objection is made by defendant to the reception of the evidence bearing on acknowledgment as part of plaintiff's rebuttal, instead of part of its proof in chief. The District Court observed at the close of the trial, "The evidence shows title in the plaintiff."
We agree with Judge Sullivan, and reject defendant's urge that part of plaintiff's proof came in its rebuttal and should therefore be eliminated from our consideration.
Non-Infringement. In the course of the trial, plaintiff, to make out its prima facie case, offered (a) the patent, (b) defendant's accused apparatus, (c) an exhibit showing a simplified diagram of the fraud preventive circuit in suit, (d) a publication apparently by defendant in which defendant's apparatus was shown and described and its circuit connections disclosed, and (e) also an exhibit which was a reproduction of defendant's circuit found on designated pages of what purported to be defendant's publication. It then rested.
Defendant asserts that it did not...
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