AR Inc. v. Electro-Voice, Incorporated

• Decision Date: 28 December 1962
• Docket Number: No. 13822.,13822.
• Citation: 311 F.2d 508
• Parties: A R INC., Plaintiff-Appellant, v. ELECTRO-VOICE, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

311 F.2d 508 (1962)

A R INC., Plaintiff-Appellant, v. ELECTRO-VOICE, INCORPORATED, Defendant-Appellee.

No. 13822.

United States Court of Appeals Seventh Circuit.

December 28, 1962.

Marmaduke Hobbs, South Bend, Ind., Arthur D. Thomson, Boston, Mass., Wayne B. Easton, South Bend, Ind., for plaintiff-appellant.

Leonard G. Nierman, Marshall A. Burmeister, Chicago, Ill., Eugene C. Knoblock, South Bend, Ind., Stone, Nierman, Burmeister & Zummer, Chicago, Ill., Oltsch & Knoblock, South Bend, Ind., for defendant-appellee.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

A R Inc., plaintiff-appellant, owner of Villchur Patent No. 2,775,309, relating to sound translating devices, brought suit in the District Court charging Electro-Voice, Incorporated, defendant-appellee, with infringement of the patent. The defendant's answer and counterclaim denied infringement, asserted invalidity of the patent for lack of novelty and invention over the prior art, sought a declaratory judgment that all claims of the patent are invalid, and that plaintiff be enjoined from asserting the patent against defendant's customers.

In response to interrogatories, plaintiff limited its claim of infringement to claims 1, 2, 4, 7 and 8 of the patent in suit. The cause was heard on defendant's motion for summary judgment for dismissal of the complaint and the granting of its counterclaim. The motion for summary judgment was based on the pleadings, the answers to the interrogatories, a deposition and affidavit of plaintiff's president, who was the applicant for the patent in suit, and prior art set forth in a notice filed by defendant pursuant to 35 U.S.C.A. § 282. The District Court held that the patent in suit is invalid¹ for lack of novelty and invention over Olson Patent No. 2,490,466 and granted defendant's motion for summary judgment. The plaintiff appealed.

The plaintiff's basic contentions on appeal are, in substance, that (1) the existence of genuine material factual issues, or of conflicting inferences which can be drawn from the evidentiary facts, precluded the District Court's disposition of the matter on motion for summary judgment and required resolution of such issues or conflicting inferences on the basis of expert testimony respecting the meaning or interpretation of the specifications and claims of the two patents; (2) the court erred in not giving effect to the statutory presumption of validity to which the Villchur patent is entitled; (3) the court erred in adjudging all 10 claims of the Villchur patent to be invalid without making specific findings or rulings as to the patentability of 5 of the claims; and (4) the court was clearly wrong in its finding and conclusion that Claim 7 of the Villchur patent described no patentable invention over the Olson disclosures.

The record discloses that both Villchur Patent No. 2,775,309 and Olson Patent No. 2,490,466 relate to improvements in loudspeakers of the type customarily used in association with radio receivers, record players and the like. Both are in the same class and subclass. Both have the same general objectives. Both patents disclose the use of a diaphragm or cone, an associated movable voice coil, and a fixed magnetic mechanism, all of which are standard elements well known in the prior art and are used to perform their customary functions. The common purpose of both patents is to improve the performance characteristics of a loudspeaker system² by decreasing nonlinear sound distortion and extending satisfactory reproduction at lower frequencies, without objectionable attenuation or fading of the sound. For this purpose each effects a reduction in the natural resonant frequency of a speaker unit³ in free air by increasing the compliance (or, conversely, decreasing the stiffness) of the mechanical suspension means which flexibly supports the diaphragm.

According to the claims and specifications of the Villchur patent the results he sought, which included a reduction in the size or required cubic volume of a cabinet speaker system, are then achieved by mounting the highly compliant speaker unit in an enclosed cabinet in which the elastic stiffness of the confined air or fluid medium is used to provide a restoring force for the diaphragm which raises the resonant frequency of the combined unit or speaker system according to the relative proportions of the mechanical restoring force of elastic supporting means used to suspend the diaphragm and support the voice coil and the restoring force of the air or fluid medium confined in the enclosed cabinet. Thus, claims 1 and 7 of the Villchur patent each call for an elastic supporting means or compliant suspension of the diaphragm and voice coil to which the restoring force of an elastic fluid medium in an essentially fluid-tight or gas-tight enclosure is added. The claims recite and employ formulae and equations but Villchur's deposition establishes that these are standard formulae and equations, and that the concluding formula of each claim is a resonant frequency equation true for any enclosure.

The Villchur patent recognizes that the use of relatively small totally enclosed cabinets is not new in the art but states that such design had been at the expense of raising the resonant frequency of the loudspeaker system well above its optimum value and of introducing bass attenuation below the new resonant frequency. It further states that its enclosure differs functionally from the conventional totally enclosed loudspeaker cabinet in that in Villchur the acoustically stiffness of the enclosed air is regulated and used as an integral and necessary characteristic of the loudspeaker system, while in the conventional totally enclosed loudspeaker cabinet the acoustically stiffness of the enclosed air is a necessary evil, and reduced to values as small as possible in order to avoid raising the resonant frequency of the moving system.

In addition, prior art (Olson Patent No. 2,688,373) had disclosed that "as the cabinet volume is decreased, the low frequency cut-off in acoustical power output is increased in frequency. * * * The smaller the cabinet cavity the higher the resonant frequency of the loudspeaker".

In the affidavit of Villchur, filed in the cause, he states that "the sealed cabinet, in combination with a diaphragm having a highly compliant support, is the key to the invention described and claimed in the Villchur patent" and points out "the Villchur patent contemplates that the lessened mechanical restoring force afforded by the lowered mechanical stiffness of the highly compliant diaphragm suspension is substituted, quantitatively, by the acoustic restoring force of the predetermined volume of air enclosed within the cabinet".

Plaintiff concedes that Olson Patent No. 2,490,466, in its particular embodiment illustrated in Figure 25 thereof, discloses a sound translating device or speaker system comprising the combination of a totally enclosed cabinet and a speaker unit, having a movable diaphragm and voice coil capable of executing excursions in a magnetic field, mounted in the cabinet or enclosure; compliant means suspending the diaphragm and voice coil in the magnetic field; the speaker unit having a natural or resonant frequency in free air which is at least an octave below the natural frequency of the speaker system (including the cabinet); the cabinet enclosure constituting means for raising the speaker unit frequency to the resonant frequency of the system, and for exerting an elastic restoring force on the diaphragm — substantially as set forth in claim 7 of the Villchur patent. But plaintiff contends the Villchur claims distinguish the Olson disclosures by reason of the element or functional relationship set forth in Villchur, particularly as represented in the closing clause of claim 7 of Villchur, which states:

"the cubic volume of said enclosure being that value which will raise the natural frequency of said transducer speaker unit to said operating value in accordance with the relationship. * * *"

defined by a standard formula or equation which admittedly applies to...