Roth v. Harris
| Decision Date | 16 February 1909 |
| Docket Number | 148. |
| Parties | ROTH et al. v. HARRIS. |
| Court | U.S. Court of Appeals — Second Circuit |
Kerr Page & Cooper, for appellant.
Briesen & Knauth, for appellees.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
The invention of Hobart relates to a tune-sheet attachment, which is separable from the piano case and permits tune-sheets to be inserted readily. When the attachment is secured to the case a true engagement is at once established between the tune-sheet and the duct bridge and, simultaneously, the tune-sheet feed roller is intergeared with the driving shaft. The specification states that the invention consists in providing an auto-pneumatic piano, or piano player, with a box containing the tune-sheet and rollers, which is separable from the piano case. When this box is connected to the piano case a proper engagement is made immediately between the duct bridge and driving shaft attached to the piano case and the tune-sheet and feed roller in the box, the perforations in the sheet registering accurately with the openings of the duct bridge.
The first four claims and claim 6 are involved. The first claim is as follows:
'An auto-pneumatic piano case having a duct bridge, combined with a box having a tune-sheet and tune-sheet rollers, and means for detachably securing said box to said case substantially as specified.'
The other claims are more limited, embracing several subsidiary elements. Infringement is not denied. The defense relied on is lack of novelty and invention.
The invention of Hobart is not generic but it marks a distinct improvement in the art. By arranging and adjusting the tune-sheet in a separate box before it is attached to the piano he avoids the difficulty which had theretofore existed and which frequently resulted in the tearing and destroying the sheet and spoiling the music. The adjustment of the sheet to the old rollers required the services of a person of skill and experience, whereas a novice can successfully make the necessary adjustment in the patented structure. By detaching the box the entire apparatus is in plain view and it is manifest that a sheet can be removed and a new one substituted without encountering any of the difficulties which existed when the rollers were attached directly to the back frame of the piano.
Hobart's improvement is concisely described by Judge Holt as follows:
The alleged Brockway prior use is unavailable for various reasons. It is, however, only necessary to say that the defendant has fallen far short of complying with the rule which requires him to establish the defense by proof that 'shall be clear, satisfactory and beyond a reasonable doubt. ' Barbed Wire Patent, 143 U.S. 275, 12 Sup.Ct. 443, 450, 36 L.Ed. 154. The most charitable view to be taken of the testimony is to conclude that the witnesses were mistaken.
The patent to Parker of March, 1892, does not cover a device which operates an endless tune-sheet. It is true that the claims of the Hobart patent are not expressly limited to an endless tune-sheet but the specification describes and the drawings show such a sheet and it is not easy to see how the apparatus could operate with any other sheet. The tune-sheet of the Parker patent is known as the spool variety, each spool having a sheet attached to and wound upon it. When in use the free end of the sheet is attached to another roller which unwinds it from the first. When the tune has been played the music stops and the sheet is rewound on the first roller, which is removed from the piano, and, if another tune is desired, another roller carrying it must be substituted. Hobart's rollers will operate any number of endless tune-sheets, whereas Parker requires as many rollers as there are tunes and his apparatus could not operate the sheets of the patent in suit. The Parker patent was not pleaded in the answer and cannot be used as an anticipation. It may be considered as showing the prior art, but, as Parker and Hobart were dealing with different problems, there was ample room for the exercise of the inventive faculty in making the improvement of the later patent notwithstanding the disclosures of the former.
The patent to Davis of June, 1898, describes a device for operating the keys of the piano by electro-magnets instead of pneumatically, and is therefore outside the claims of the patent in suit in each of which 'an auto-pneumatic piano case having a duct bridge' is an element.
It is not easy to see how the Davis device can be regarded as an anticipation when it must be conceded that if made now for the first time it would not infringe. Furthermore, like the Parker construction, it shows a spool sheet wound upon and permanently secured to the roller.
The patent to Shonnard of April, 1897, is also for an electric piano player and it may be said, as applicable to both Davis and...
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