Brush Elec. Co. v. Electric Imp. Co.

• Decision Date: 03 October 1892
• Docket Number: 10,764.
• Parties: BRUSH ELECTRIC CO. et al. v. ELECTRIC IMP. CO.
• Court: U.S. District Court — Northern District of California

52 F. 965

BRUSH ELECTRIC CO. et al. v. ELECTRIC IMP. CO.

No. 10,764.

United States Circuit Court, N.D. California.

October 3, 1892

M. M Estee, J. H. Miller, and L. L. Leggett, for complainants.

W. F Herrin and R. S. Taylor, for respondent.

HAWLEY District Judge.

This is a suit in equity for the infringement of letters patent No 219,208, granted to Charles F. Brush, September 2, 1879, for an improvement in electric arc lamps. The Brush Electric Company is the owner of the legal title of said patent, and the California Electric Light Company has an equitable title as the exclusive licensee for the states of California, Nevada, Oregon, and Washington. The defendant is charged with infringing this patent by the use of the Wood lamp under letters patent No. 430,722, granted to James J. Wood, June 24, 1890, for new and useful improvements in electric arc lamps. A preliminary injunction was ordered by Judge SAWYER, upon the authority of Brush Electric Co. v. Western Electric Light & Power Co., 43 F. 533, and Brush Electric Co. v. Ft. Wayne Electric Co., 44 F. 284. While declining to discuss the questions involved in this case, the learned judge expressly indorsed the views announced in the cases referred to, and stated that, in his judgment, 'the Brush patent is valid, and the first six claims are infringed by the Wood lamp.' 45 F. 242. The case is now presented upon the final hearing upon the testimony taken before the examiner.

The validity of the Brush patent has, in addition to the cases referred to, been sustained in Brush Electric Co. v. Ft. Wayne Electric Light Co., 40 F. 826, and Brush Electric Co. v. New American Electrical Arc Light Co., 46 F. 79. The learned counsel who argued this case for the defendant insists 'that, notwithstanding all the suits that have been brought, and all the actions that have been taken, the questions arising in this case have not been settled or adequately presented or considered,' and he therefore respectfully asks that all the points involved should be again independently considered and decided. Complainants claim that the principles announced and conclusions reached in the prior decisions are correct, and should be followed.

Mr. Brush's invention, as stated in his specifications--

'Relates to electric lamps or light regulators; and it consists-- First, in a lamp, having two or more sets of carbons, adapted by any suitable means to burn successively,-- that is, one set after another; second, in a lamp having two or more sets of carbons, each set adapted to move independently in burning and feeding; third, in a lamp having two or more sets of carbons, adapted each to have independent movements, and each operated and influenced by the same electric current; fourth, in a lamp having two or more sets of carbons, said carbons, by any suitable means, being adapted to be separated dissimultaneously, whereby the voltaic arc between but a single set of carbons is produced; fifth, in the combination with one of the carbons or carbon holders of a lamp employing two or more sets of carbons, as above mentioned, of a suitable collar, tube, or extended support, within or upon which the carbon or carbon holder to which it is applied shall rest and be supported.'

He states at the outstart that his--

'Invention is not limited in its application to any specific form of lamp. It may be used in any form of voltaic arc light regulator, and would need but a mere modification in mechanical form to be adaptable to an indefinite variety of the present known forms of electric lamps. My invention comprehends, broadly, any lamp or light regulator where more than one set of carbons are employed, wherein-- say in a lamp having two sets of carbons-- one set of carbons will separate before the other. For the purpose merely of showing and explaining the principles of operation and use of my invention, I shall describe it in the form shown in the drawings, as applied to an electric lamp of the general type shown in United States letters patent No. 203,411, granted to me May 7, 1878, reissued May 20, 1879, and numbered 8,718. The leading feature of this type of regulator is that the carbon holder has a rod or tube which slides through or past a friction clutch, which clutch is operated upon to grasp and move said carbon rod or holder, and thus to separate the carbons, and produce the voltaic are light.'

Before quoting further from the specifications, a brief reference to the prior state of the art will be made, in order that the true character and extent of this invention may be better understood. In 1810, Sir Humphrey Davy, with the aid of a galvanic battery of 2,000 cells, produced a light between two pencils of charcoal. This seems to have been the first dawn of a discovery which gave to the scientists of the world the thought of electric lighting. Unfortunately for Davy, he had no mechanism to adjust his electrodes, and, owing to the great cost of his battery, and the rapid combustion of the charcoal points,-- lasting only a few minutes,-- his invention was of no commercial value for practical use. In 1836 the more powerful battery of Daniell was tried. In 1839 the nitric acid battery of Grove was invented. In 1842 the Bunsen battery was produced. No practical result, however, in the way of advancement was attained until 1844, when Foucalt substituted pencils made of hard gas carbon for the charcoal pencils of Davy, and thereby extended the duration of the light to some extent. But the expense was still too great to justify any general use of the light, and it was confined principally to laboratories, and for the experimental uses of scientists. In 1848, Archeran devised an imperfect regulating device, by means of which two vertical carbon electrodes were maintained in the same relative position. In 1857 the Holmes & Nollett machines were employed in producing the arc electric light in some of the lighthouses of France and England by the use of the Serrin lamp, which was a clockworking lamp, burning one pair of carbons, with a very expensive apparatus. It was not until 1870 that a current of sufficient strength to render electric lighting commercially practical by being generated at a small expense was attained. This was brought about by the invention of the dynamo electric machine of Gramme. None of the arc lamps invented up to this time were suitable for the purpose of general illumination. The defendant has set up, for the purpose of showing the prior state of the art, the following lamps and patents: The Archeran lamp, produced in 1848; the English patent for the Staites lamp in 1853; the Hart lamp, introduced in 1858; the Browning, Foucault, and Serrin lamps, in use prior to 1860; the patent issued in England to Louis Denayrouse, August 21, 1877; the United States patent to M. Day, Jr., February 24, 1874. The French patent granted to Khotinzky, March 19, 1875; the Rapieff lamp, described in the Telegraphic Journal and Electrical Review of London, August 15, 1878; and the French patent for the Mersanne & Bertins lamp.

The patent of M. Day, Jr., is pleaded as an anticipation of the Brush patent; but in the argument defendant admitted that it was not an anticipation in a technical sense, and was only relied upon as showing the state of the art. The Day patent was held not to be an anticipation of any of the claims of the Brush patent in Brush Electric Co. v. Ft. Wayne Electric Light Co., 40 F. 833. Judge GRESHAM correctly said 'it was unlike the Brush lamp, both in construction and mode of operation,' and the same view is expressed by BROWN, J., in Brush Electric Co. v. Western Electric Light & Power Co., 43 F. 536, to which reference is here made for a description of the Day patent, the French patent of Denayrouse, and the Jablochkoff candle in the patent of Jablochkoff, as the views therein expressed sufficiently, and, in my judgment, correctly, answer the argument of defendant's counsel in relation thereto. None of the devices set up by defendant contain the principle of the Brush patent. All of them were presented by the defendant in the several prior suits instituted by the Brush Electric Company, except the French patent for the Mersanne & Bertins lamp, which does not introduce any new principle tending to limit the field of invention that was open to Brush. BROWN, J., in referring to the inventions prior to those of Mr. Brush, very properly said:

'Most of them, however, were directed to improvements in the material of which the carbons were made, in the brilliancy and steadiness of the light itself, to improvements upon the dynamos, and in the mechanism by which the carbons were held in the same relative position during the process of combustion. One difficulty, however, remained to be overcome. The electrical resistance of the carbons was such as to preclude the employment of very long rods, and their consumption by burning away was hastened by their adjacent ends becoming highly heated to a considerable distance from the arc. This difficulty was partially remedied by covering the carbon pencils with a thin film of copper, electrically deposited thereon, by which the electrical resistance of the carbons was materially decreased, much longer rods were possible, and the light maintained continuously for from 6 to 10 hours. This was insufficient, however, for all-night lighting, and necessitated the extinguishment of the lamp, and a renewal of the carbons at some time during the night, in order to keep up a continuous light.'

In tracing the history of the prior state of the art from 1810 it will be observed that scientific men were continually at work trying to invent some kind of a lamp that would automatically give such a light as would be suitable for general use, and also to discover, if...