General Radio Co. v. Allen B. Du Mont Laboratories, No. 7749.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMARIS, JONES, and GOODRICH, Circuit
Citation129 F.2d 608
PartiesGENERAL RADIO CO. v. ALLEN B. DU MONT LABORATORIES, Inc.
Docket NumberNo. 7749.
Decision Date12 May 1942

129 F.2d 608 (1942)

GENERAL RADIO CO.
v.
ALLEN B. DU MONT LABORATORIES, Inc.

No. 7749.

Circuit Court of Appeals, Third Circuit.

Argued October 9, 1941.

Decided May 12, 1942.

Rehearing Denied June 3, 1942.

Reconsideration of Petition for Rehearing Denied June 12, 1942.


129 F.2d 609

Samuel E. Darby, Jr., of New York City (Herbert LeRoy Cohen, of Wilmington, Del., and Floyd H. Crews, of New York City, on the brief), for appellant.

R. Morton Adams, of New York City (Pennie, Davis, Marvin & Edmonds and Baldwin Guild, all of New York City, and E. Ennalls Berl, of Wilmington, Del., on the brief), for appellee.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

The defendant has appealed from a judgment of the District Court for the District of Delaware holding Bedell reissue patent No. 20,945 valid as to certain claims and infringed by the defendant. The defendant contends that the reissue patent in suit is invalid because of anticipation by or want of invention over the prior art and that it is also invalid because of unreasonable delay in making application for the reissue and because it was improperly granted under the reissue statute.

The invention of the patent relates to an improvement in cathode-ray oscillographs. The invention and its place in the art are fully described in the opinion of the district court, 38 F.Supp. 495, and that detailed description need not be repeated here. It is sufficient to say that a cathoderay oscillograph is an instrument which is employed to make visible to the human eye for examination and study the characteristics of periodic electrical quantities. A tube is used in which are located a cathode, an anode, two pairs of deflection plates arranged on axes at right angles to each other and a fluorescent screen. When the cathode is activated by an electrical current it ejects a stream of electrons. Most of them strike the anode but a slender ray of electrons passes through a small hole in the anode and strikes the fluorescent screen at the other end of the tube making a point of light thereon. This stream of electrons is repelled by a negative charge and attracted by a positive charge. Consequently if a voltage is applied to one of the pairs of deflection plates the cathode-ray will be deflected toward the positive plate and will accordingly strike the fluorescent screen at a point away from its point of original impact.

In operating the oscillograph the periodic electrical quantity to be examined is introduced across one pair of the deflection plates. In ordinary practice the vertical pair is used for this purpose. As this electrical quantity goes through its periodic changes the point of light will be deflected up and down on the fluorescent screen. If the ray is affected only by one pair of deflection plates the point of light will move up and down making a vertical line across the screen. In order, therefore, to produce a wave-shaped curve which may be seen and studied it is necessary to give the point of light a steady horizontal movement also. It must move at a uniform speed from one side of the screen to the other and then instantaneously return and repeat the movement. This is called the "sweep movement" and it is produced by voltage applied to the horizontal set of

129 F.2d 610
deflection plates. In order that the required result may be obtained it is necessary that these plates be charged by what has been described as a sawtooth voltage, i. e., one which increases steadily in one direction and then instantly drops to zero. In the oscillograph disclosed in the Bedell patent this result is accomplished by an oscillator, the basic features of which are a source of current, such as a battery, a condenser, resistances and a discharge tube which acts somewhat like a switch. With a low voltage applied the tube acts like an open switch, i. e. no current can pass, but when the voltage across the horizontal deflection plates rises with the charging of the condenser to some definite point, which may be determined by adjustment, the tube suddenly acts like a closed switch and allows current to pass freely. By means of the oscillator a voltage is produced which is applied to the horizontal deflection plates. As a result the cathode-ray is steadily deflected in a horizontal direction and then instantaneously returned to its first position. This operation is repeated with extreme rapidity. By means of adjustments in the oscillator circuit the frequency of the oscillator can be varied over an extremely wide range

In operating the oscillograph it is obvious that if the point of light should make only one extremely rapid movement across the screen it would not be visible to the human eye. In order to make a line of light the point must be constantly moving and retracing its path across the screen. It is likewise obvious that in order to make a sharp line the point of light must continue to follow exactly the same path in its successive movements across the screen. This can happen only when the frequency of the oscillator is exactly the same as that of the periodic electrical quantity which is being observed or when it bears a ratio of two or more whole numbers thereto. By careful manual adjustment it is possible to make the two frequencies very nearly the same. But for the best results in the study of many problems absolute synchronism is desirable. The two frequencies must lock in step. It is to the solution of this particular problem that Bedell's patent is directed. His patent discloses that if a small voltage from the electrical quantity under examination is introduced into the oscillator circuit it will have the effect, when the two circuits are close to synchronization, of locking the oscillator circuit in absolute synchronization with the frequency of the periodic quantity being examined.

Bedell's original patent for this invention, No. 1,707,594, was issued April 2, 1929, and was assigned to the plaintiff on May 29, 1934. On February 11, 1937, the plaintiff was informed by its counsel that certain of the claims of the patent were probably invalid because they were functional. On August 18, 1937, the application for the reissue patent in suit was filed. The reissue patent was issued on December 13, 1938. With the reissue application Bedell filed an oath in which he conceded that claims 1, 2, 3, 4, 5 and 6 of the original patent were in such terms that they might be construed to cover merely the function instead of the apparatus. It is sufficient for the purposes of this case to consider claim 1, since it is typical of all six. It is as follows:

"In a device of the type described, a cathode-ray tube, two sets of deflecting elements fixed in position with respect to said tube and with respect to each other for deflecting the cathode beam periodically, and means for indicating the curve formed by the deflected beam as stationary."

The cathode-ray tube and the two sets of deflecting plates were admittedly old. Bedell's invention lay solely in what he described in the claim as "means for indicating the curve formed by the deflected beam as stationary." It will be seen that Bedell claimed the function of his invention or the problem which it solved rather than the means by which he solved the problem. That the claims are functional is quite clear. This was in effect conceded by the plaintiff, since, as we have seen, the application and affidavit upon which it relied for reissue contained averments by Bedell that certain of the claims of his original patent might be construed to cover the function instead of the apparatus. It is well settled that a claim which is functional is invalid.1

Congress has authorized the reissue in amended form of an inoperative or invalid patent upon certain conditions. One of these is that the error sought to be corrected by the reissue was due to inadvertence, accident or...

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17 practice notes
  • Hewlett-Packard Co. v. Bausch & Lomb, Inc., No. C-84-20642 RPA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 22, 1988
    ...cert. denied, 298 U.S. 679, 56 S.Ct. 945, 56 S.Ct. 946, 80 L.Ed. 1399 (1936); General Radio Co. v. Allen B. DuMont Laboratories, Inc., 129 F.2d 608 (3d Cir.1942), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942); Dill Mfg. Co. v. J.W. Speaker Corp., 83 F.Supp. 21 (E.D. Wis.1949)......
  • AstraZeneca UK Ltd. v. Aurobindo Pharma Ltd. (In re Rosuvastatin Calcium Patent Litig.), Nos. 2010–1460
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 14, 2012
    ...alleged error affecting their original patent is unreasonably long and not justified.”); Gen. Radio Co. v. Allen B. Du Mont Labs., Inc., 129 F.2d 608, 612 (3d Cir.1942) (delay of eight years was unreasonable when “invalidity of the patent should ... have been clear to anyone with even a rud......
  • Daniel v. O. & M. MFG. CO., Civ. A. No. 4077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 8, 1952
    ...elements" as disclosed in his patent. Cridlebaugh v. Rudolph, supra; General Radio Co. v. Allen B. DuMont Laboratories, Inc., 3 Cir., 129 F.2d 608, 611; Toupet-Taylor Engineering Co. v. Red Dog Mfg. & Supply Co., 3 Cir., 16 F.2d 19. The Salzer re-issue patent is invalid because the claims t......
  • Moist Cold Refrigerator Co. v. Lou Johnson Co., No. 13811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1955
    ...3 was not accepted. In ruling as it did the court relied upon two cases, General Radio Co. v. Allen B. Du Mont Laboratories, 3 Cir., 129 F.2d 608, certiorari denied 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526, and Heidbrink v. Charles H. Hardessen Co., 7 Cir., 25 F.2d 8, ceriorari denied 278 U.......
  • Request a trial to view additional results
17 cases
  • Hewlett-Packard Co. v. Bausch & Lomb, Inc., No. C-84-20642 RPA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 22, 1988
    ...cert. denied, 298 U.S. 679, 56 S.Ct. 945, 56 S.Ct. 946, 80 L.Ed. 1399 (1936); General Radio Co. v. Allen B. DuMont Laboratories, Inc., 129 F.2d 608 (3d Cir.1942), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942); Dill Mfg. Co. v. J.W. Speaker Corp., 83 F.Supp. 21 (E.D. Wis.1949)......
  • AstraZeneca UK Ltd. v. Aurobindo Pharma Ltd. (In re Rosuvastatin Calcium Patent Litig.), Nos. 2010–1460
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 14, 2012
    ...alleged error affecting their original patent is unreasonably long and not justified.”); Gen. Radio Co. v. Allen B. Du Mont Labs., Inc., 129 F.2d 608, 612 (3d Cir.1942) (delay of eight years was unreasonable when “invalidity of the patent should ... have been clear to anyone with even a rud......
  • Daniel v. O. & M. MFG. CO., Civ. A. No. 4077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 8, 1952
    ...elements" as disclosed in his patent. Cridlebaugh v. Rudolph, supra; General Radio Co. v. Allen B. DuMont Laboratories, Inc., 3 Cir., 129 F.2d 608, 611; Toupet-Taylor Engineering Co. v. Red Dog Mfg. & Supply Co., 3 Cir., 16 F.2d 19. The Salzer re-issue patent is invalid because the claims t......
  • Moist Cold Refrigerator Co. v. Lou Johnson Co., No. 13811.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 28, 1955
    ...3 was not accepted. In ruling as it did the court relied upon two cases, General Radio Co. v. Allen B. Du Mont Laboratories, 3 Cir., 129 F.2d 608, certiorari denied 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526, and Heidbrink v. Charles H. Hardessen Co., 7 Cir., 25 F.2d 8, ceriorari denied 278 U.......
  • Request a trial to view additional results

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