MUNICIPAL SIGNAL CO. V,. GAMEWELL FIRE ALARM TEL. CO.
459
it is a conspicuous and distinguishIng sign. But then, again, the defendants' medical compounds in themselves are unlike in appearance those of the plaintiff, and theirlabels, wrappers, and phials,in size, color, and general effect, are widely d.ifferent from his. We are altogether convinced, notonly by the testimony, but by our own inspection, that the defendants' goods as put upon the market are so easily distinguishable from those of the plaintiff that no purchaser or consumer using the slightest the one for the other. It isnot shown that. any attention could one has ever been misled. The defendants' labels, indeed, point directly and unequivocally to proprietorship and origin. And, finally, we do not find in this record a particle of evidence tending to oonvict the defendants of any attempt or purpose to deceive the public or to perpetrate a fraud upon the plaintiff. In Desmond's Appeal, 103 Pa. St. 126, the supreme court of Pennsylvania held that the appropriation, as a trade-mark applied to compound medicines, of the word "Samaritan" in one combination of words, did not prevent its being used in other combinations; and hence that the use by the defendants of the name" Samaritan's Nervine" did not violate the plaintiff's trade-marks "Samaritan's Gift" and "Samaritan's Root and Herb Juices." The same learned court in Heinz v. Lutz, 146 Pa. St. 592, 609, 23 At!. Rep. 314, declared that" a court of equity will not restrain a person from using a device, on the ground that it infringes plaintiff's trade-mark, unless it is so similar in appearance that any person using such reasonable care and observation as the public generally are capable of using, and may be expected to exercise, would mistake the one for the other;" citing Gilman v. Hunnewell, 122 Mass. 139, and Desmond's Appeal, supra. And this doctrine was distinctly approvt.'<l by the supreme court of the United States in Manufacturing Co. v. Trainer, 101 U. S. 51, 56. Upon the whole case, then, we are of the opinion that the plaintiff is not entitled to equitable relief. Let a decree be drawn dismissing the bill of complaint, with costs. BUFFINGTON, District Judge, concurs.
MUNICIPAL SIGNAL
CO. et aI.
t1.
FIRE
ALARM TEL.
Co. et ale
(Circuit Court, D. Massachusetts. August 10, 1892.) No. 2,588.
1.
PATENTS
INvENTIONs-COMBINATION-SIGNAL ALARMS. Letters patent No. 178,750, iSSUed June 13, 1876, to Henry Ennis, for an improvement in telegraphio fire alarms, oover adevioe consisting of a hammer arm for operating a bell, a penoil for recording a message on a traveling strip of paper, and a pen!lll for reoording the time of day on the faoe of a rotating olock dial, aU oonnected by arms and pivots to the armature of an· eleotrocmagnet, so as to be simultaneously operated by an electric current. Claim 1 is for a telegraphic receiving instrument adapted:to register a message and record the time of its recep-
460
FEPERAL REPORTER,
vol. 52.
ti0 ll , substantially as and for tlle purpose set Held that, while each of the two elements covered by the olaimare old, the combination is not a mere aggrega.t!on, but. on the contrary, achieves a new and useful result by co-operating actlOn. S. SAME'--ANTICiPA!rIoN. This invention was not anticipated by the old watchman's clocks which make a mark on a time strip when a. button is pressed, or by the British patent of October 19,1872, to Whitehouse & Phillips, for a recording apparatus for public vehicles. B. SAME-1N:rBINGEMENT-EQUIVALENTS. The olaim is infringed by an apparatus having a magnet in the main circuit. wh'!lse armature controls the receiving device and time stamp as in the patent, notwithstanding that the motion is communicated by means of relays or subcircuits instead of by levers.; for, both means being well known, the one is merely the . equiyaient of the other. 4. Soo-IMMAnRIAL VARIATIONS.
Infringement is not prevented by the fact that defendants, instead of the Ennis time stamp,. use, in SUbstance, the llinchman. patent of .July 29, 1873, which was old at thE! date of the Ennis patent; and it is immaterial that the Ennis machine is operated with two strips of paper, while defendants' machine uses only one.
'
F. Oyster, assignee, of letters patent No. 178,750, issued June 1876, ,to Henry Ennis, for ,an improvement in telegraphic fire alarms,against the Gamewell Fire Alarm Telegraph Company and others, foojnfringement. Decree for cQtnpll1inants. Fish, Richardson & Storrow" 'foJ:" complainants. ,Charles N. Judson, for defendants.
:, In Equity. Bill by the Municipal Signal Company, licensee, and
'COLT, Circuit Judge. This suit and the three following! relate to pa.tentscovering devices ina mgnicipal signalllJstem. By this apparatu!\ signals are by electricity to a central station from boxes located at convenient places on the streets. These or messages range theJ;nselves into two classes,-ordinaryor patrol signals, which arE) sent by policemen on their beats, and emergency or want. signals, as fire-ahmn, police, l!-nd ambulance calls. Several things are important in the opera,tion ofa complete police signal system. Not only message be received at theqentral station, but, the time of its reception should be at the same moment recorded. Again, the patrol ami do not require immediate signals sent in are very tion, while the emergency signals are comparatively rare, but call for instant action, and therefore it is desirable that these should be distinguished from ordinary calls by thedringing of an alarm, in order to at once arrest the attention of the attendant at the central office. Further, it is im portant that t1;1e boxes . with speed and certitlIity,and'should oe so construdted as to be inaccessible to mischievous persons who might sendin falsll alarnis. The principal parties' to this suit are rivals in this line of business. In 1888 the city of Boston, being desirous of aoopting an improved system of police signals, advertised for bids, and the complainant and dewere 'competitors for this contract. The apparatus J1equired by the city embraced the special features already mentioned, 'Municipa.l Signal Co. v. Co., (No. 2,587, )52 fed. 468, Ji'uniclpal Signal Co. .". Gamew,ell Fij'e CO.· ,(No. 2,589,) 52 Fed. Rep. 464, and Gaulewell Fire Alarm Tel. Co. v. :MunicipaiSignal.Co., {No. 2,543,) 52 Fed. Rep. 471.
MUNICIPAL SIGNA.L CO. 'l1. GAYEWELL FIRE ALARY TEL. CO.
461
and the defendant company proposediri their letters and specifications sent to the board of police to furnish such a system. They also constructed a working apparatus, which was on exhibition at their office in Boston. This was seen by Mr. Martin, a person of large experience in electrical devices of this class, and he describes the apparatus in detail. One of the board of police also visited the office, and he testifies as to the operation of the system. It is necessary to state these facts to meet the position taken by the defendants respecting the first three cases under consideration, namely, that complainants have failed in their proof of a technical infringement. In view of the evidence, however, and in the absence of any evidence contradictory thereto on the part of the defendants, I must hold the proof on this point to be sufficient, and that this defense should not prevail. The present suit has reference to letters patent No. 178,750. dated June 13, 1876, granted to Henry Ennis, for improvements in telegraphic fire alarms. The patent was duly assigned to James F. Oyster, one of the complainants. The other complainant, the Municipal Signal Company, has an exclusive license under the patent. The invention is for a receiving instrument which simultaneously registers a message, records the time of its reception, and sounds an alarm. It consists of a hammer arm for operating a bell. a pencil for recording a message on a traveling strip of paper, and a pencil for recording the time of day upon the face of a rotating clock dial, all of these parts being connected to the armature of an electro-magnet, so as to be simultaneously actuated. In the operation of the device, when the electric current passes through the magnet, the armature is attracted thereto, and, by reason of connecting arms and pivots, throws upward a pencil, marking the clock dial, and also a perforating pencil, impressing or printing the slip of paper, while, at the same time, the bell-hammer handle is thrown forward, and sounds an alarm. In this way, every time the circuit is closed by the transmitting instrument, an alarm is struck, a mark is made on the dial to indicate the time, and a mark is made on the traveling ribbon con;esponding to one of the characters of the "Morse"or any other known telegraphic alphabet. The patentee says: "The· various features of my device may be modified. and their arrangement changed. without departing from the spirit of my invention. " The first claim is the only 6ne in controversy, and it is as follows: .. A ,receiving instrument adapted to register a ,message and record the time oUts reception. substantially as and for the purpose set forth."
It is admitted .that elemeuUl' cqnsideredseparately, which compose the Ennis machine were old ,at the time of the Ennis invention; in other words, a contrivance actuatE:d by electricity for marking the time of day on a slip of paper by means of a dial revolved like clock work, a register for recording messages sent by electricity, and a contrivance for sounding an alarm by eleCtriCity, were well' known in the art at this time. The novelty, therefore, of the Ennis invention must
of these elements by means result is, produced. The !irst claim r,eference apparatus, so that.our present, inqqi,ryis to the of a message 'receiy;er ·· and a ina telegraphic receiving instrumen,t. :true that pontrivances.wt?reold,it is maintained by the that. they were never Qefore sO,combined ,as to .together , . taneoqsly ,the, results. Ennis describes. ,ground of is that, this inv.ention is ,a mere aggregation,IHld .consequentIy,u,9t patental;lle.,. But it is not true that the Enni,lh W;Vttntion .is a mElfe.. aggl:egation of old p.lements, The Ennis new,orgljlonization, but it produces a where two things uSe independnew result. An ent;ly, ,anq . @perate there is no new result; but the of the lies in the ·co-operation of certain w1:lricp contenqedpa!l never before to co-operatetoge.ther. .. '.. . . to oOhe prior 'art, .which is in.show ,that therewa!l Jlothingpatentable in the ltilllis invention, ·qr.,)f to .the precise devices set forth in his patthis de(eWjle; reliance is placed largely l;lpon the old clocks whiph ...make a. ,mark on the. .strip when the watchiAmppshes a bq.tton.at any particular place. that a whic4: ,pnly sends'aQ.ot indicating that a button pressed be. consiqwed, ID(:ll'll3age or receivingaPP/loratus, Ennis. fqr the purpose and, are.. pot designed to ,The most that can ,be said is that Ennis,in organa.pp:,uatus aSIl wgole, made \lse, ofthat part of,the.,clock mechto the tiDle when, a.certain thing is done. The Hamblet patent pi Jply,l, J862,theShepPa.rd .A,pril 9, 1872, 13,.l.$74, relate to watchman's clocks, and th,e Gillilalildpatent .a,ad they antipipate or, limit the real ilil\]'ention of Ennis; be sai,dof the British patent to Groubman of April 10,1874, which was an apparatus for signaHng trains pn railways. Much reliance is placed by the defendants upon the British Whitehouse & Phill,ipe patent, dated October .12, 1872, for a recording appa'ratus to public The patentee says:
. new
"This adapted to boc:UesIn motion by written record of the time, speE>d; and distance run by such; * * '" also by registering tbe.:time,alld place 'of people' or passengers entering or leaving public or pri"Vate;<lonveyancesor.; bUildings jalso the relative numbers' of such people or telltales, recording not only the time of his -OWn resting, buttbat' at which he may pass 'certain points of his beat."
,t4is ia crpde 1 II-11 d the insuffiit is pra.ctical.utihty. Briefly, it of thFee, syphon pens tra,qe lines on,' a slip ofpaper kept ifl,rnotion One pen the tirneqpon the paper by meaps ,()f points; anotherIpen is connected to a wheel or axle, ,,1
MUNICIPAL SIGNAL 00. V. GAMEWELL Fm1!l ALARM TEL. CO.
463
in;'such a manner as to produce waves or points across the paper at definite intervals, according to the distance traveled; a third pen is intended to mark the ingress or egress of each passenger, by being deflected above or below the line, The third pen, for registering the entrance or exit of passengers, is considered to have the most important bearing on the Ennis device; The force applied in its operation may be either pneumatic or electric. When electricity is used the pen'is mounted upon a post which is turned on its pivot by a magnet, and this magnet is intended to be moved to one side or the other by currents of opposite polarity sent through it, and the pen marks in accordance with the manner in which the currents are actuated by the steps of the vehicle. When a person an omnibus puts his foot on an angular mark is made below the line, and when he the ,lower puts' his fO'ot on the upper step an angular mark is made above the line, and this is tru,e when a passenger gets out, except that the marks come in the reverse 'order with respect to the lin'e.Assuming that this device would work practically under the various conditions which surround passengers getting in and out of an omnibus, which may well be questioned, still, what does it do?, ,It merely records by means of a maTk a ce$in action, jU!!t the same a.s the watchman's clock records a certain action,andit is in no proper sense the message receiver of the Ennis device.' Without further consideration' I am satisfied that the Whitehouse & Phillips patent does not anticipate the-invention of Ennis. of infringement remains.' Iu defendants' apparatus there is a magnet in the main circuit whose armature controls the telegraphic receiving device and the time stamp just as in the Ennis patent. The main difference between the two contrivances is that in defendants''the imd thethne stamp are operated byelectrical devices instead of mechanical, as in Ennis',-that is to say, the defendants use relays or subcircuits instead of levers, by which means the apparatus may be operated by a smaller current.' , 'rhe use of a relay or subcircuit is said to be analogous to the introduction of an additional lever or wheel in a machine. It has long be known that you may: attach a lever or levers to the armature of an electro-magnet, and each will operate mechanically, because there is the source of power in the armature, or, instead thereof, you can use the armature to throw into or out of action a battery in asubcircuit, and 80 move the armature of the magnet in suchsubcircuit, and this will operate the same as the levers. The aubcircuits of the defendants' apparatus are, therefore, the equivalent of the leveI's of the Ennis patent. Ennis himself recognized this in his patent where, in speaking of an additional bell alarm, he says: "The tripping of said clock may be effected by direct mechanical action, as pulling on a wire attached to said armature and to said detent: but 1 prefer to close an additional circuit by the movement of armature, L.or lever, U, and thereby operate an additional electro-magnet and armature. thus tripping said detent." " The defendants do not employ the Ennis time stamp, but they use, in substance, the time stamp of the Hinchman patent of July 29,1873,
464
REPORTER,
voL, 52.
of the Ennis invention., The fact that the which waa old at the Ennis machine is operated with two strips of paper, while the defendants' machine uses only one, I do not think of material importance. Thidir.'lt claim of the Ennis patent is for an apparatus which accomplishedaresult unknown in the art up to that time, and the defendants1 apParatus accomplishes the same result thr01.1gh the same, or wellknQ)Vn, or equivalent instrumentalities, and, therefore, their machine is witbiQ. the Ennisinveution. Decree for complainants.
."
_,j,
I,' ,I,'
SIGNAL
,
"
GAHEWELL FlRE-ALAR.M TEL. CO. . . . , " .
et ale
," ,I':;
C(iircuit'
D. MassaChu$et't8. August ,10, 1892.) No. 2,589.
1'4'1'J1l1r.l8,
.
of ,the operllitor's will, the reception of emergency . signals.le alwaysmar!l;ed 1;>1 t1;>.e ofa bell, while the reception of patrol signllls on the same register is ' l1ever accompanied' by an alarm, were not anticipated by .·it!llll:!'· the patel;lt 0;( :,fuJi! 26, 1881, to J. W. Stover, for "improvements in tele..relaYs," the Field patellt ofJune 19,1888, for an apparatus for recording , stoCk'quotations, or 'the Wilson 'patents of March 8,1885, and June 9,1886, relating toa mUDlclpal telegraph,apparatus.
" . Noye,li,' for
POR
INVENTIONS-ANTICIPATION-MUNIOIPAL SItlNAL ApPARATUs,;
an
iriventto,n
reo
Ii.tin g ,to a syste,,m ,Of municipal signals, whereby, auto-
and 859,688, \)Qth fssued March 22, 1887, to Bernice :r.
.Billl;ly Signal Company against the GameCOiUpa,nYlind others (or- infringement of patents. De",. . Fish, R,icha:r:d[jQn & Storrow, forcomplainant. OJw,rle8 lV. Jy,daon, (''ircllit Judge.. Th.e present sllit is brought upon letters patent No,. 359,q87 and No. 35fl,688, both dated March 22, 1887, issued to to the complainant. In a municipal signal Bernice J.Noyes, system it is desirable to',distinguish the important from the unimportant messages rl\ceived at the central station from the signal boxes. The Noyes inventions are for devices by means of which the receptionoi emergency signals at the main station is marked by the ringing of a bell, while. in the case of ordinary patrol signals no alarm is sounded. Both classes of. signals are. made and received upon a single register. This result iEl/accomplished l;ly changes in the electrical current. In the first the specific method of producing the current change is by the strength of the current for ordinary signals, and breaking the circuit entirely for emergencysignalsj in other words, the selective action is produced by varying the strength of the current. In the second patent, which is for an improvement on the first, the epecific method using short impulses or dots for ordinary signals, and for
In