Armstrong v. Emerson Radio and Phonograph Corp.
| Citation | 179 F. Supp. 95 |
| Parties | Esther Marion ARMSTRONG, Executrix, Plaintiff, v. EMERSON RADIO AND PHONOGRAPH CORPORATION, Defendant. |
| Decision Date | 14 September 1959 |
| Court | U.S. District Court — Southern District of New York |
Brumbaugh, Free, Graves & Donohue, New York City, for plaintiff. Dana M. Raymond, Ruloff F. Kip, Jr., Richard G. Fuller, and Edward Carr, New York City, of counsel.
Darby & Darby, New York City, for defendant Floyd H. Crews, Morris Relson and Robert A. Maikis, New York City, of counsel.
This suit concerns important discoveries in the radio art. The contribution of the inventor, Major Edwin Howard Armstrong, with respect to all three of the inventions in suit, was a new technique for suppressing noise in radio signalling known as wide band frequency modulation (FM). This has made possible a substantial improvement in the faithfulness of reproduction of sound transmitted by radio and a marked reduction in noise and interference. Distinguished witnesses with outstanding backgrounds in the radio field have supported plaintiff's contention that Major Armstrong's system of wide band frequency modulation was contrary to the then accepted practice and theory in radio. No radio apparatus was known to be in existence prior to the Armstrong disclosures which could produce the results Armstrong achieved. Indeed, the evidence is clear and persuasive that Armstrong's wide band FM system was considered, in the middle 1930's, by persons well informed in the radio art, to operate on principles which were contrary to the then known practice and theory. This view was made manifest by a period of recantation among leading theoreticians; and by the recognition accorded Armstrong by learned societies and by persons distinguished in the radio and communications fields.
Noise and static constituted a longstanding and vexatious problem in radio. The theory generally entertained, prior to the disclosures of Armstrong here in suit, was that noise or static produced a radio response in a receiver which had the same physical characteristics as the radio signal; and that anything done at the receiver to strengthen the radio signal would also strengthen the noise and static in the receiver. It was generally assumed by those well informed in radio that there was nothing fundamental that could be done about the ever-present problem of noise and static in radio. Various schemes and devices for the elimination of static were tried and tested and found to be unsatisfactory. One eminent authority, John R. Carson, summed up the situation in 1928 as follows: "In fact as more and more schemes are analyzed and tested, and as the essential nature of the problem is more clearly perceived, we are unavoidably forced to the conclusion that static, like the poor, will always be with us."
The history of the many fruitless attempts to deal with this problem is a very interesting phase of Armstrong's labors. Armstrong's pioneering work was based on the assumption that there was a workable signal in a radio receiver; and he sought to ascertain how the noise and static that comes into the receiver or happens to be there at the same time, could be suppressed. His accomplishment was to produce a system which, within practical limits of signal strength at the receiver, suppressed noise and static to an extent which before him was believed to be impossible as a matter of basic theory. This result was obtained by building particular kinds of selective circuits and employing them in a particular system of frequency modulation. What Armstrong achieved was the result of great sacrifice, energy and perseverance, including the expenditure of substantial amounts of his own funds. The result of his accomplishment was to extend the practical range of radio communication in many fields. It further made possible, in broadcasting, a fidelity of reproduction far beyond anything considered feasible theretofore, and characterized by an unusual clarity and purity of tone, even in cases of musical instruments having wide range and subtle tonalities. The inventions here in suit are to be found in every FM broadcast receiver, in every television receiver, and they have wide application to military, police, and other mobile services.
It is notable that during the time of Major Armstrong's research and experimentation, a number of important business corporations maintained laboratories well equipped for the investigation of noise in radio signalling and for the uses and applications of frequency modulation. Yet, none of them achieved his results. Their failure to do so stands as an indication that prior references were of no help. Indeed, they gave persuasive evidence of Major Armstrong's accomplishment by paying him substantial sums of money for the right to use his new radio system.
Moreover, the lengthy record in this case fails to disclose the existence of any apparatus which embodied the circuits and which was capable of producing the results which Armstrong disclosed. Major Armstrong was truly a pioneer in the field in theory and in fact.
Furthermore, the record is clear that Emerson imitated and used the three inventions of Major Armstrong here in suit, in the manufacture and sale of its television receivers and FM broadcast receivers. The structural and operating characteristics of the infringing receivers of Emerson, and the comparison of the Emerson circuits with the disclosures in the Armstrong patents, have presented substantially no dispute in this case. The conclusion is inescapable that the inventive features of the three patents in suit are found in the accused receivers. Moreover, Emerson's extensive arguments based upon prior art have been speculative, inconclusive, and unconvincing. In no instance have they been based upon the actual performance of existing frequency modulation apparatus antedating the Armstrong disclosures here involved.
The three related inventions which are the subject of this suit constituted an outstanding contribution to the radio art. They resulted in a practical solution of what had been regarded as an insuperable problem in radio communication, namely, the suppression of static and other noise and interference from other stations. In sum, I hold that plaintiff's patents are valid, that they were not anticipated by prior art, and that they were infringed by defendant.
A further comment may be useful with respect to Emerson's defense of license. This defense is based upon Emerson's license under patent No. 1,941,447. This patent is not here in suit, and it did not disclose or remotely suggest the inventions which are here in suit.
The Findings of Fact have been so arranged as to deal with each patent separately and in accordance with a systematic plan of treatment set forth in the index attached hereto as an appendix.
At the outset of the trial, and by agreement of the parties, I was furnished with a handbook of basic information and definitions, prepared expressly as an aid to the Court, entitled "Memorandum Concerning Some of the Fundamentals of Radio Communication." (Plaintiff's Exhibit 105.) This is incorporated by reference and what follows is based upon a general familiarity therewith.
2. The complaint was filed on December 21, 1953. The answer was filed on January 7, 1954, and a stipulation and order amending the answer were filed on October 4, 1957.
3. The complaint charges Emerson Radio and Phonograph Corporation (Emerson) with infringing, during the six years next preceding the date of filing of the complaint, and until their expiration, the 066, 069, and Reissue patents, by making, using, and selling apparatus embodying the inventions claimed in the patents. The 066 and 069 patents expired on December 26, 1950. The Reissue patent expired on September 17, 1957.
Abandonment is not now urged by defendant.
The Reissue patent is attacked on the grounds that there was no error in the original application, that there was unreasonable delay in applying for the Reissue patent, that the Reissue oath is inadequate, and that the Reissue patent is not for the same invention as the original patent.
5. Plaintiff is Esther Marion Armstrong (Armstrong), the widow and executrix of the last will and testament of Edwin Howard Armstrong (Major Armstrong), the original plaintiff in this action. Major Armstrong died on February 1, 1954, less than two months after the complaint was filed. He was the sole owner of the three patents in suit. After a contested motion, Esther Marion Armstrong was substituted as plaintiff by order of this Court (Dawson, J.) dated June 17, 1955. Judge Dawson's opinion on the motion was filed June 7, 1955 and is reported at 132 F.Supp. 176.
6. At the trial, Emerson moved to dismiss the complaint for lack of jurisdiction on the ground that the...
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