Kellogg Switchboard & Supply Co. v. Dean Electric Co.

• Decision Date: 21 September 1915
• Docket Number: 9.
• Court: U.S. District Court — Northern District of Ohio
• Parties: KELLOGG SWITCHBOARD & SUPPLY CO. v. DEAN ELECTRIC CO. et al.

231 F. 190

KELLOGG SWITCHBOARD & SUPPLY CO. v. DEAN ELECTRIC CO. et al.

No. 9.

United States District Court, N.D. Ohio, Eastern Division.

September 21, 1915

Curtis B. Camp and Jones, Addington, Ames & Seibold, all of Chicago Ill., for plaintiff.

F. O Richey, of Elyria, Ohio, M. B. & H. H. Johnson, of Cleveland Ohio, and Charles A. Brown, of Chicago, Ill., for defendants.

CLARKE District Judge.

In this suit, the bill in which was filed March 4, 1905, infringement is claimed of claims numbered 1, 2, 8, 9, 10, 11, 15, 16, and 17 of letters patent No. 687,499, issued to William W. Dean dated November 26, 1901, for a claimed improvement of a telephone transmitter. The usual injunction and accounting are prayed for. The defendants deny the validity of the plaintiff's patent, deny infringement, plead that it is manufacturing a transmitter under letters patent No. 793,928, issued to W. E. Harkness, dated July 4, 1905, and further plead public use and sale more than two years prior to the application for the patent in suit.

That Dean came late into the transmitter field of invention, when it was approaching, if it had not entirely reached, exhaustion, the record abundantly shows, and it also appears that he sought, not so much to produce an improved transmitter, as to construct one which would avoid infringement of satisfactory transmitters already in use, notably the White and Stromberg-Carlson. The patent in suit is a combination patent, confessedly all of the elements used in complainant's transmitter had been long in use when the patent was applied for, and the only claim made in the case in which there is any real substance is described best in claim No. 7 of the patent in suit as:

'The combination with a diaphragm comprising a sheet of material having a portion deflected to form a recess or chamber of an electrode within the chamber and moving with the diaphragm, a stationary support, a second electrode mounted on said support and extending into said recess or chamber, and comminuted material in said recess or chamber between said electrodes, substantially as described.'

The inventor declares in his specification that:

The object of his invention is to 'provide a telephone which will be simple and compact in structure, and which will effectively prevent packing of the carbon granules, thereby overcoming an objection which is incident to most of the granular telephones as commonly constructed heretofore.'

Transmitters using granules of carbon in various forms between the electrodes of the transmitter had been in use for many years before Dean applied for his patent. But it is claimed that the carbon granules tended to adhere together or 'pack,' with a resulting defective transmission of sound waves, and that Dean's problem was to prevent this or reduce it to a minimum. That he produced a combination of well-known elements which gives good results is admitted, but that it is superior to several which went before is by no means proved. The most that can be claimed for the patent in suit, therefore, is that by a new combination of old elements it produces what is claimed as an improved result. There is much evidence in the record tending to prove that whatever improvement the plaintiff's transmitter possesses is due not more to the adjustment of the granule chamber on the main diaphragm than to improved preparation of the carbon granules and minor refinements in construction.

The 19 claims of the patent in suit may broadly be divided into two classes:

First. Those which describe the chamber containing the granules as integral with the main diaphragm of the transmitter by making use of it as a part of the chamber. The drawings all relate to this form of construction in which the main diaphragm forms one side of the granule chamber.

Second. The claims which describe the granule chamber as 'carried' on the diaphragm. Several of these claims describe the 'supplemental diaphragm as peripherally connected' with the main diaphragm; but this it seems clear enough was common in earlier transmitters, and as the connection is made in the patent in suit, it can serve no new purpose, since the construction obviously involves also securing this supplementary diaphragm and the rear electrode, its stem and block, to the main diaphragm. That this can give a flexible connection to the supplementary diaphragm, which will contribute to the vibrating of the entire granule chamber, and so to the preventing of packing, as claimed by one of the plaintiff's experts, seems entirely fanciful.

The complainant clearly recognizes the line of demarcation which we have pointed out between the two sets of claims, and in this suit relies wholly upon the claims which describe the granule chamber as 'carried on' the main diaphragm. The expression, 'carrying the granule chamber upon the diaphragm, ' as distinguished from making it a part of the diaphragm when applied to the subject-matter of this suit, must...