Scherbatskoy v. United States Steel Corporation

• Decision Date: 09 March 1961
• Docket Number: No. 13129.,13129.
• Citation: 287 F.2d 552
• Parties: Serge A. SCHERBATSKOY, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION and Sperry Rand Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

287 F.2d 552 (1961)

Serge A. SCHERBATSKOY, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION and Sperry Rand Corporation, Defendants-Appellees.

No. 13129.

United States Court of Appeals Seventh Circuit.

March 9, 1961.

Dugald S. McDougall, Chicago, Ill., Charles G. Bomberger, Hammond, Ind., for appellant.

William J. O'Connor, Hammond, Ind., Edwin T. Bean, Buffalo, N. Y., Bean, Brooks, Buckley & Bean, Buffalo, N. Y., Galvin, Galvin & Leeney, Hammond, Ind., for appellees.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Serge A. Scherbatskoy, plaintiff-appellant, as assignee of Jacob Neufeld's Patent No. 2,496,103, brought suit in the District Court charging Sperry Rand Corporation and its lessee, United States Steel Corporation, defendants-appellees, with infringement and seeking an accounting and damages. The defendants by their Answer and Counterclaim for Declaratory Judgment asserted invalidity of the patent and denied infringement. On trial of the issues before the District Court the charge of infringement was limited to Claims 1, 2 and 8 of the patent in suit. The District Court filed an opinion containing its findings of fact and conclusions of law and entered judgment that Claims 1, 2 and 8 of Patent No. 2,496,103 were valid but not infringed. Plaintiff appealed.

The patent in suit relates to an indexing and speed control system for magnetic reproducers. The accused devices are magnetic-tape circuits and apparatus which form a part of the UNIVAC electronic computers and File Computers manufactured by Sperry Rand Corporation, the primary defendant.¹ United States Steel Corporation is a defendant by reason of its having leased and used a UNIVAC computer at its Gary, Indiana, plant.

The Claims in suit are as follows:

"1. An apparatus for moving a physical medium, said physical medium having impressed thereon a signal, comprising a pick-up element mounted in operative relation to said medium for translating said impressed signal into an electric current, and means responsive to said current for controlling the relative motion between said medium and said pick-up element, and another means responsive to said current for indicating the displacement between said medium and said pick-up element."

"2. In combination, a movable magnetizable member having magnetically impressed thereon a signal, a reproducing head mounted in operative relation to said member for translating said impressed signal into an electric current, means responsive to said current for controlling the relative motion of said member with respect to said reproducing head, and another means responsive to said current for indicating various portions of said member."

"8. A reproducer system for reproducing signals from a movable physical medium, said medium having impressed thereon two signals differing one from another by distinguishable characteristics, the first of said signals being recurrently distributed with respect to said medium, comprising a pick-up element mounted in operative relationship to said medium for translating said two impressed signals into two corresponding electrical currents having distinguishable characteristics, the first of said currents corresponding to the first signal varying recurrently with respect to time, means connected to said pick-up element and providing two channels for separating said two currents, an indicating element operated in relationship to a selected initial instant and responsive to the first of said currents for indicating at any moment the number of recurrences of said first current that have elapsed since said initial instant, and a reproducer responsive to said second current for reproducing said second current."

The District Court found that each of these claims define a true combination of elements which cooperate together to achieve new and useful functional results; in the case of Claim 8, the important new result being precise indexing of information reproduced from tape. Its findings on the issue of infringement and conclusion that the accused devices did not infringe are grounded on differences the court found present in the accused devices as to means, operations and results.

The plaintiff contends the grounds or differences relied upon by the District Court in support of its judgment are legally unsound and arise from a basic error — that of measuring the invention by the specification rather than the claims.

The specific embodiment described in the specification and illustrated in the patent's drawing related to an acoustical or sound system in which a repetitive signal magnetically impressed upon the recording tape is utilized by the reproducing apparatus to control, through employment of synchronous motors, differential gearing and a rheostat, the speed of the driving motor which pulls the tape through the reproducing head or pick-up so that the tape is moved at substantially the same varying and increasing speed as occurred during the recording process (because of build-up in diameter of the tape on the reel during recording) with the result that the sound signal also magnetically impressed on the tape is reproduced through a speaker without the distortion which otherwise would result. The cyclical reference signal is superimposed on the sound signal at a different electrical frequency from the sound signal and filters are employed to separate the currents reproduced and employ each for the purpose intended. The recording and reproducing apparatus each include a counter which counts and indicates the number of reference signals and affords precise indexing of any segment of the sound or speech recorded on the tape.

The defendant's accused devices utilize magnetic tape for recording and reproducing information rather than sound or speech. The recorded information signal represents numerical and alphabetical data on which computations and calculations are made. The charge of infringement is limited to that part of the apparatus whereby information is taken from a magnetic tape and fed into the computer proper.

Numerical information to be processed by the UNIVAC computer is first recorded on magnetic tape in the form of a code. Each numeral or other character is represented by a group of tiny magnets distributed across the width of the tape in seven laterally spaced parallel channels, the magnets representing each succeeding character being spaced slightly (less than 0.01 inch) down the length of the tape from the magnets representing its predecessor.

Each magnet is known in UNIVAC parlance as a "bit". For a given character the segment of tape length on which it is recorded will have a magnet or "bit" in some but not all of the seven signal channels, the identity of the character being determined by which of the channels contain "bits" in that particular segment of tape length and which do not.

Information is recorded on the tape in groups of characters, one group being "digested" by the computer circuits before the next is fed in. In the large UNIVAC computers, these groups consist of 720 characters, such a group being referred to as a "block", and occupying about six inches of tape. In the smaller UNIVAC model, known as the "File-Computer", the unit of information consists of 120 characters and is called a "blockette", occupying slightly less than one inch of tape. The blocks are spaced apart on the tape, about 2.5 inches of tape being left blank between the end of each block and the beginning of the next.

In addition to the seven parallel channels of tiny magnets or "bits" which form the coded characters (numerals, letters, etc.), the UNIVAC tape contains an extra channel known as the "sprocket channel", in which a magnet or "bit" appears at each character position. That is, throughout the length of each block or blockette, as the case may be, the bits in the sprocket channel are uniformly, repetitively distributed along the tape. This sprocket channel is not a part of the information signal; it serves, in the UNIVAC system, as a reference signal.

In the UNIVAC computers, the coded information magnetically recorded on the tape is translated into electrical current pulses by passage of the tape through a pick-up head, referred to as the "readwrite" head. This is a multiple-channel device that produces, as the tape moves through it, trains of...