Brush Electric Co. v. Western Electric Co., 21,545

• Decision Date: 24 July 1895
• Docket Number: 21,545,22,211.
• Parties: BRUSH ELECTRIC CO. v. WESTERN ELECTRIC CO. (two cases).
• Court: U.S. District Court — Northern District of Illinois

69 F. 240

BRUSH ELECTRIC CO. v. WESTERN ELECTRIC CO. (two cases).

Nos. 21,545, 22,211.

United States Circuit Court, N.D. Illinois.

July 24, 1895

Henry A. Seymour, Offield, Towle & Linthicum, and Wm. B. Bolton for complainant.

Barton & Brown, for defendant.

SHOWALTER Circuit Judge.

In each of these causes the ground of action is an alleged infringement of patent No. 219,208, for an electric lamp or light regulator, issued September 2, 1879, to Charles F Brush; said patent being the property of complainant company. In cause No. 21,545, it is insisted that electric lamps made by defendant company pursuant to patent No. 418,758, issued to Charles E. Scribner January 7, 1890, and afterwards assigned to defendant company, infringe the said Brush patent. In cause No. 22,211, it is insisted that lamps made by defendant company pursuant to patent No. 502,535, and lamps made by defendant company pursuant to patent No 502,538-- each of said last-named patents having been issued to said Charles E. Scribner August 1, 1893, and afterwards assigned to said defendant company,-- also infringe said Brush patent. Prior to the first of these suits, the complainant commenced a suit in the federal circuit court at Toledo, Ohio, for an alleged infringement of said Brush patent by lamps made by this defendant company under said patent No. 418,758, and used or dealt in by the defendants in that suit. 43 F. 533. It appears that this defendant assisted the defendant in this suit by paying the expenses, or some part thereof, incurred therein by or on behalf of said defendants. But this defendant was not a party to the record in the Ohio litigation. The jurisdiction of that court did not extend to, nor could its decree in favor of complainant rendered pending the first of the causes in this court in any way conclude, this defendant company. The records here-- even that in the first of the causes-- contain a mass of evidence which was not before the court at Toledo. But I do not understand complainant's counsel to insist that either of these causes can be determined on the theory of a prior adjudication. He merely insists that the opinion of the court in the Ohio case may be determinative, not only of one, but of both the present causes.

There are seven claims in the said Brush patent. On the contention of complainant, an infringement of each of these numbered from 1 to 6 is shown in each of the present causes. But this contention rests upon a construction of the Brush patent, extending in common to each of said claims, which is earnestly disputed by the defendant. The controversy, so far as it involves in common each of the six claims, as contested in each suit, hinges upon this one point of construction.

If two carbon pencils, placed so that their points touch, and thus being part of an electrical circuit, be slightly parted at their points, the current will continue to flow over the open space, burning said points, and forming between them an arc of brilliant white light. This arc will persist while the current flows, till, owing to the consumption of the pencil points, the distance spanned becomes so great that the current, unable to overcome the resistance, ceases, the carbon points stop burning, and the light disappears. If two parallel pairs of carbon pencils, with the points of each pair touching, are placed in an electrical circuit, so that in case either pair were removed the current would still pass through the other, such current will divide between the pairs. If such pairs be now separated at once, and by a common and uniform movement, the arc will appear between the points of but one pair. It is not practical to make the points of the carbons impinge so that the resistances through each pair shall be mathematically equal, nor is it practical to separate the points so that the parting on one side shall be identical in time with that on the other. The reason why the arc forms between one pair only may be said to be that the other pair in fact parts first, thus throwing the entire current through the pair between which the arc forms. While the partings may be, in appearance, simultaneous, they are not so in reality; or, if we say the partings are in fact simultaneous, then the resistance, being accidentally greater on one side, determines the formation of the arc on the other.

On May 7, 1878, complainant's assignor, Brush, patented a contrivance for feeding one carbon pencil towards the other, so as to preserve a practically uniform distance or length of arc between the burning points till the carbons should be consumed. In this invention the carbons were arranged in a vertical line, with their points touching. The lower carbon was fastened by a clamp in a holder projecting from the base of the lamp frame. The upper carbon was held in a clamp on the lower extremity of a holder which extended downward from the upper portion of the lamp frame through a tubular, soft-iron core of a solenoid, the helix of which was included in the main electric circuit, whereby the lamp was actuated; thence through a flattened, loosely-fitting ring, D; thence through a horizontal platform or floor on which said ring rested when the lamp was not in operation. To the lower extremity of this core was attached a lifter, C', a projection at the lower end of which extended under one side of said ring, D. When the current passed through the carbons, the lifter engaging said ring tilted the same so that it clamped, and lifted the upper carbon rod, thus separating the carbon points so that the arc was formed. As the resistance grew greater, by the shortening of the carbon rods in burning, the current became less energetic, and the upward pull of the lifter on the edge of the ring clamp, D, relaxed so that the upper carbon rod was permitted to pass imperceptibly downward, whereupon the upward pull became more energetic, the increasing energy of the current causing the said ring clamp, D, to tighten, and hold the upper carbon in the new position. Thus the process went on until the upper carbon was so far consumed that the holder could descend no further, the further descent of the rod being stopped by an enlargement at its upper end which at that period in the operation of the lamp engaged with the upper portion of the lamp frame. The space between the carbon stumps then increased without further feeding until the current could no longer overcome the resistance, and the lamp ceased to burn.

On September 2, 1879, Brush, secured, as before stated, the patent in suit. To his invention as above described, he added a second pair of carbons, a second pair of carbon holders and a second movable or feeding carbon rod. Each carbon rod passed down through its ring clamp marked, the one, C, and the other, C', in the new patent. The lifter marked D in the new patent, was triangular in form, with a stirrup at the top, in which was fastened a lever which was to be operated by magnetic attraction. At each lower corner of said lifter, D, was an opening formed by two short projections, one above the other, each opening inclosing the edge of its appropriate ring clamp, C, or C'. The lower arm or projection of one of these openings was below the plane of the corresponding part of the opposite...