American Tri-Ergon Corp. v. Paramount Publix Corp., 5800.
Decision Date | 14 August 1933 |
Docket Number | No. 5800.,5800. |
Citation | 4 F. Supp. 462 |
Parties | AMERICAN TRI-ERGON CORPORATION v. PARAMOUNT PUBLIX CORPORATION. |
Court | U.S. District Court — Eastern District of New York |
Ward, Crosby & Neal, of New York City (S. Mortimer Ward, Jr. and Page S. Haselton, both of New York City, of counsel), for plaintiff.
Charles Neave, Henry R. Ashton, W. J. Barnes, F. T. Woodward, and E. J. Driscoll, all of New York City, for defendant.
Plaintiff brings this suit against the defendant for relief by injunction and damages for the alleged infringement by the defendant, at its studio in Long Island City, of patent No. 1,825,598, issued to Vogt, Massolle, and Engl, by mesne assignments to the plaintiff, for process of producing combined sound and picture films, granted September 29, 1931, on application filed March 29, 1922, corresponding to German application No. V. 16431VI/57a2, filed April 14, 1921. This has been held by the Patent Office to be the effective date under the International Convention.
No evidence was offered showing any commercial activity of the plaintiff, or of any one operating under license from it.
The defendant is a well-known motion picture producer.
This suit is being defended by Electrical Research Products, Inc., the wholly owned subsidiary of the Western Electric Company, formed to take over the commercial distribution of the Western Electric talking motion picture sound recording and reproducing systems which were developed by the research laboratories of the Western Electric and American Telephone & Telegraph Companies.
The defendant is licensed by the Research Products, Inc., to record for talking pictures by means of the Western Electric system, and has from the beginning used that system and apparatus.
The defendant has by answer interposed the defenses of invalidity and noninfringement.
This suit is based on claims 5 to 9, both inclusive, and claim 11 of the patent in suit, but claims 6 and 7 are to be read with the disclaimer, filed November 23, 1932.
Said claims and disclaimer read as follows:
More than nine years elapsed between the date of the filing of the application in question in the United States Patent Office and the date of the granting of the patent in suit, and the claims in suit were introduced by amendment dated July 15, 1931.
During that long period of time the defendant and the Western Electric, its parent company, engaged extensively in the commercial distribution of said Western Electric talking motion picture sound recording and reproducing systems.
At the time of the application in the United States Patent Office for the patent in suit in 1922, it was common and necessary practice in the motion picture industry to compensate, so far as was possible, for over and under exposure of different scenes or takes of motion pictures by under and over development, respectively, of the picture negatives.
This was accomplished by what was known as the rack and tank development, in which each scene was wound on a rack and then submerged in a tank containing the developer, the development being watched by the operator, who from time to time lifted the rack and film from the tank, and, exercising his individual judgment, determined the extent to which the development of the particular scene should be carried.
This, of course, resulted in merely a compromise, inasmuch as no amount of manipulation would make it right, if the exposure was not correct in the first place, but would merely change the degree in which it was not correct.
In recording sound photographically, the negative sound record, it was realized, would be uniformally, if not correctly or normally, exposed (a uniform source of light being used), and therefore should receive a uniform development throughout.
To continue the practice of compensating in the developing of the pictures for under and over exposure of the pictures, the patentees wished to develop their picture records separately from their sound records.
This the patentees described in their specifications as originally filed in the United States, in 1922, as follows:
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Paramount Publix Corporation v. Americancorporation 8212 1935
...sound and picture films.' It reversed the District Court, which had held the patent invalid for anticipation and want of invention. 4 F.Supp. 462. The several claims involved relate to a method of producing a single photographic film by printing upon it a picture record and a sound record f......