Armstrong v. De Forest Radio Telephone & Telegraph Co.

• Citation: 10 F.2d 727
• Decision Date: 08 February 1926
• Docket Number: No. 218.,218.
• Parties: ARMSTRONG et al. v. DE FOREST RADIO TELEPHONE & TELEGRAPH CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

10 F.2d 727 (1926)

ARMSTRONG et al. v. DE FOREST RADIO TELEPHONE & TELEGRAPH CO.^*

No. 218.

Circuit Court of Appeals, Second Circuit.

February 8, 1926.

Thomas G. Haight, of Jersey City, N. J., and Samuel E. Darby, Jr., of New York City, for appellant.

Stephen H. Philbin and Charles Neave, both of New York City, for appellees.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The practice pursued below has been criticized at bar, but the matter has been sufficiently treated in Green v. Adams Co., 247 F. 485, 159 C. C. A. 539, and Gordon v. Turco-Halvah Co., 247 F. 487, 159 C. C. A. 541. Supplemental injunctions are sometimes useful remedies. We note Minerals, etc., v. Miami Co. (C. C. A.) 269 F. 265, and remain of opinion that at times injunction is preferable to contempt proceedings.

In a sense they are alike, for both reach only matters fairly covered by the decision already made. But in another sense injunction gives definition of whatever rights, always growing out of the original decision, plaintiff may be found to possess.

But, whichever method is pursued, the basis of procedure is that the parties before the court are those whose rights have been finally adjudicated and on the merits. Yet a decree, though given in general terms, is to be interpreted and enforced in accord with the findings of fact embodied in the findings directing decree.

The first thing to be done is to ascertain exactly what was decided according to the opinions filed. As between the parties, whatever was there found is final. The facts as between the parties are not open to further examination, and it is improper to turn either a contempt proceeding or an application for supplemental injunction into an inquiry whether the court was wrong, or whether some hole or omission can be discovered in its opinion. That the matter has been judged is the fundamental fact, but exactly what was adjudged is matter for investigation, not requiring further evidence, but only the record of the opinions. Otherwise there is no end to the suit, and the well-known dictum of Judge Coxe, that "even patent litigation must come to an end sometime," would be even harder to believe than it now is.

It is not true that the object of a supplemental injunction is to amplify the original one; the object is not to amplify, but to specify, and apply the original injunction to actions and objects nonexistent when the case was decided. The inquiry is whether acts and things that have come into existence since decree would have been enjoined by that decree, had they then existed.

So the present inquiry is: Does the new thing, known as receiving set D-17, fall within the injunction issued in accordance with the final decree herein, as interpreted by the opinions directing the same?

The following matters have been finally settled between these parties:

Armstrong was the first to divine or understand radio frequency oscillations in the plate circuit of the audion (280 F. 587), and this concept was his on January 31, 1913. Therefore his invention antedated De Forest on the same subject, and likewise Schloemilch. From this it follows that, even if Schloemilch and De Forest can be so rearranged or adapted as to do the same thing in the same way (within a proper range of equivalents) that Armstrong did, such doing is an infringement upon Armstrong's rights.

It was also held that, though Armstrong disclosed his invention only as applied to a receiver, the invention is of such a character as to apply as well to a transmitter. 280 F. 596. Also that Armstrong's patent is for an instrumentality or means, and not for a mere principle of operation. 280 F. 597. Again, that an instrumentality duly described and shown in Fig. 3 of the patent is the introduction into the plate circuit of an inductance L'. 280 F. 596. And this instrumentality puts into practice the underlying principle or thought of the invention, which is that "any arrangement by which oscillating current energy is transferred from the output or plate circuit of the audion to the input or grid circuit, to sustain the oscillations in the grid circuit, is included in the" inventive concept. 279 F. 448. Further, that Armstrong's patent "does not indicate any use of the audion in the oscillating condition; but, when the audion is oscillating, due to feed back, it is coincidentally regenerating." 279 F. 448.

There is nothing in the patent confining regenerative feed back to currents of either radio or audio frequency. It is admitted that oscillations of the same wave length exist in currents of both frequencies, and the object of the invention as stated in the disclosure is "to amplify the effect of the received wave upon the current in the telephone or other receiving circuit." Patent, p. 1, line 19. It is merely untrue that Armstrong (as is now contended) is confined to a detector, for he plainly stated that what he improved was "any receiving circuit," and that devices for amplification of oscillations of radio frequency impressed on the grid circuit are devices for amplifying received waves in a part of a receiving circuit is too plain to endure argument.

Further, by upholding the validity of claims 15 and 16, it was held that "means supplementing the coupling of the audion," etc., included an inductance in the plate circuit. In so holding, it was recognized that, if audions be arranged in cascade, then "adcidental capacity feed back" occurs (279 F. 453); but what Armstrong did was to regulate and utilize that feed back for amplifying purposes. Accidental feed back may be a nuisance; designed and regulated feed back, utilized by the means disclosed by Armstrong is (as was held plainly) an invention of importance and merit.

Within the findings now indicated, but not fully restated, we inquire whether defendant's D-17 apparatus is or is not doing anything more than enduring or making as small a nuisance as possible of the inherent feed back of a system of audions...