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BROWN v. HUNTINGTON PIANO CO.
(Circuit Court, D. Connecticut. July 6, 1904.)

No. 1,114.
1. PATENTS-INVENTION-MUSIC DESKS FOR PIANOS.

The Brown patent, No. 468,077, for improvements in music desks for pianos, consisting of a device by which the opening and closing of the fallboard automatically opens and closes the music desk, and, when open, locks it in position for use, by means much better, because simpler, than those previously used for the purpose, discloses patentable invention; the simplification of such means having been an object sought for years by other inventors. Claims 1 and 2 also held infringed. In Equity. Suit for infringement of letters patent No. 468,077, for improvement in music desks for pianos, granted to Theodore P. Brown February 2, 1892. On final hearing.

Southgate & Southgate, for complainant.
Roberts & Mitchell, for defendant.

PLATT, District Judge. This suit is based on letters patent to complainant, granted February 2, 1892, for "improvements in music desks for pianos," charging infringement and asking the usual relief. It is too plain for denial that the defendant infringes, if the patent is valid. The only defense is lack of invention. Claims 1 and 2 are in suit:

"(1) In a piano, the combination, with the case provided with a ledge, of a substantially L-shaped fall-board pivotally secured near its base within the case substantially below the front edge of the ledge, each arm or portion of the board being adapted to pass under the ledge, and thereby close the space between the ledge and the keys when it is closed or open, a lever pivotally secured at the rear of the fall-board, with its lower end entirely disconnected from, but in the path of and adapted to be engaged by the upper portion of the fall-board when the fall-board is opened, and a music desk in the front of the case, adapted to be operated by the lever, substantially as set forth.

"(2) In a piano, the combination, with the case, of a substantially L-shaped fall-board pivotally secured therein near its base, the front portion of the board being hinged and adapted to be folded so as to pass under the ledge of the citse and close the space between the ledge and the keys, whether the fall-board be open or closed, a lever pivotally secured at the rear of the board, the lower end of which is inclined and projects towards the board, and is adapted to be engaged by and forced back by the upper portion of the fall-board, said upper portion of the board being in a straight line between the end of the lever and the hinge of the board, whereby the lerer is locked in its rear position, and a music desk in the front of the case, adapted to be operated by the lever, substantially as set forth."

Looking at the prior art, we find that the L-shaped fall-board was old, and is substantially shown in patent to Neill, No. 183,773, dated October 31, 1876. A music desk, hinged at the top, which could be inclined outward and firmly held in position, so that music could be rested upon it, was old, as shown in patent to McCammon, No. 219,821, dated September 23, 1879. It was obvious that, when the fall-board was closed upon the keys, there was no advantage in having the music desk remain in position for use, and so the problem was to furnish simple automatic action by which the opening of the fall-board should open the music desk, and retain it securely in position for use, and by which the closing of the fall-board would permit the music desk to close. There were many ways of making fall-boards, and this fact may have added to the confusion which followed; but it at last became settled that fall-boards practically of the Neill type were the best, and they are now in general use, and are called in trade the "Boston Fall-Board.” The simple connection now in suit, between fall-board and music rack, is known to the trade as the “Kicker.” The first person to attack the problem was Charles E. Bourne, of Boston, in patent 247,473, September 27, 1881 ; but he concocted a peculiar type of fall-board, which was a necessity in his combination, and the result was a very complicated affair, objectionable for many reasons. Before that patent issued, however, an attempt at improvenient was jointly essayed by Mr. Bourne and a namesake, William, and patent No. 247,474 was also granted to them on the same date; but the improvement would seem to have intensified, rather than simplified, the complication. The objections to the Bourne structures may be thus stated: In effecting automaticity it was necessary (1) to discard the L-shaped fall-board; (2) to provide the floating inner part of the fall-board with a guiding mechanism, consisting of links and hinges, so that it might follow and lock the lever; (3) in the attempt at simplification, the rear end of the fall-board must be positively connected and hinged to obtain the coveted result. After the Bournes came Felldin, No. 307,933, November 11, 1884. He had a compound fall-board, of which the inner part slid downward and forward in grooves, while it oscillated on pivots which acted upon a lever with which before moving it was in contact; the upper part being a bent rod or coarse wire. When all was done, the locking does not appear to have been provided for. Ivers, 371,069, October 4, 1887, had a sliding fall-board, which was locked in place by a catch after acting upon the lever. There are also two organ constructions shown by drawings. In these seven devices the simple, pivoted, I,-shaped fallboard is either lacking, or much modified to obtain what was wanted ; and, if any of them locked, it was brought about by a floating rear portion provided with guiding mechanism connections and hinges, unnecessarily complicated, to follow the movement of the lever. In this situation, we come to Harper and Hoover, 372,616, November 1, 1887. Here the L-shaped, pivoted fall-board was used as the first element of the combination. The complicated mechanism employed in connecting it with the music desk can only be appreciated by reading the specifications of that patent. It probably serves to lock the desk when the fallboard is open, and to take up lost motion, thus avoiding jar or rattle, and, by the help of springs, will return the music desk to its normal position when the fall-board is closed, but it is painful to see the conglomerated series of devices by which the result is reached.

131 F.-18

Such was the art prior to Brown. He took the old fall-board, the old music rack, and the old lever, and so arranged them that they entered into new co-operative relations, and produced an old result in a better, because simpler, way. The gist of his invention will be found by an examination of his specifications. I quote only a little part of them:

"The lower end of the lever is entirely disconnected from the fall-board, and has its front portion inclined toward the board, so that, when it is forced back by the upper portion of the board, it swings downward until it is substantially on a horizontal line with the hinge of the fall-board. This permits of the upper portion of the fall-board assuming a substantially horizontal position between the hinge and the lower end of the lever, which locks the lever in its rear position, and also prevents the pressure of a heavy book upon the rack from moving the lever and closing the fall-board over the keys."

And so the simple connection becomes a disconnected, pivotally secured lever at the rear of the fall-board, in the path of and adapted to be engaged by the upper portion of the fall-board when it is open. The movement of the part of the fall-board which engages the lever is about a remote center from the pivot of the lever, and its path is of the opposite curvature to the path of the lever with which it engages. A wiping action therefore occurs, which ends in positive engagement of fall-board and lever at or near a dead center; resulting in locking, absorption of lost motion, and consequently freedom from jar or rattle. The piano can be taken apart and put together easily, connecting devices are unnecessary, and springs are eliminated. By this simple method the problem was solved, with a perfection which is ideal. It may excite surprise that Harper and Hoover, after recognizing the best style of fall-board, did not find the answer; but he who is surprised must remember the morass in which the inventors were floundering: Simple as the solution appears now, we must try to square our minds with those who struggled then. The court would be loath to charge the skilled mechanics of all the large piano manufacturing concerns of the country for about 15 years with imbecility, and yet that conclusion is inevitable if it is assumed that mechanical skill is the limit of the Brown structure. This is not an epoch-making invention. Its domain is limited. Its presence may furnish the feather's weight which, tossed into the scale, might direct the purchaser's choice; but, under the rules laid down in the mass of decided cases, I am compelled to find that inventive thought existed.

Every presumption is against the defense. The patent itself, after the careful scrutiny which it received in the office; its acknowledged merit, evidenced by its acceptance in the trade; the futile struggle of inventive minds for so many years—all argue against it. The climax is reached when the piano trade, recognizing the value of the invention, combines to defeat the contract which the government has entered into with one of its citizens. That trade plainly considers the “kicker" a thing which no well-ordered piano may omit, and prefers to pay tribute to counsel, rather than to the lawful owner. This court refuses to become privy to an act which seems to be nothing less than an attempt at unrighteous appropriation. The contract was made with wide-open eyes, and ought to be enforced.

Let the usual order be entered for an injunction and accounting.

BECIITOLD V. NOWACKE et al.

(Circuit Court, S. D. New York. July 8, 1904.) 1. PATENTS-INVENTION-HAIR RETAINERS.

The Bechtold patent, No. 682,448, for a comb for retaining the hair, consisting of a back with a comb attached, and extending contiguous thereto, having the prongs curved toward the back intermediate their length, for the purpose of locking the retainer to the hair, is an improvement in efficiency over prior devices, and discloses invention. Also held

infringed. In Equity. Suit for infringement of letters patent No. 682,448, for a hair retainer, granted to William S. Bechtold September 10, 1901. On final hearing.

Walter W. Menzel (M. W. Divine, of counsel), for complainant. Goepel & Niles (Joseph H. Niles, of counsel), for defendants.

HAZEL, District Judge. This is a suit to recover damages for infringement of United States letters patent No. 682,448, granted to complainant on September 10, 1901, on an application filed July 3, 1901. The invention relates to improvements in combs or so-styled hair retainers. The patent has two claims. The first reads as follows:

"(1) A hair retainer comprising a back and a comb attached to said back at one end thereof, and extending contiguous with said back, and the prongs of said comb having, intermediate of their lengths, portions curved toward the back for the purpose of locking the retainer to the hair, substantially as described."

The second claim is like the first, but has the additional feature of the prongs having their points diverging from the back. The essential elements of the combination comprise (a) a back or frame; (b) a comb attached at one end of the frame, and extending contiguous therewith; and (c) prongs or teeth curved towards the back between their point and root. The answer challenges the validity and novelty of the patent and denies infringement. The object of the invention was to improve combs for women which were adapted to hold the hair in place at the back and side of the head. The primary purpose of the patentee was to invent a comb which would effectively lock the retainer to the hair by joining the frame or guard with the comb proper, and to impart a conformation or curvature to the prongs or teeth which would prevent the hair of the wearer, when arranged or dressed, from becoming disheveled. The specification, after stating the specific object of the patent, says:

"To this end, my invention consists essentially of a hair retainer, comprising a back and a comb attached to said back, at one end thereof, and extending contiguous with said back, and the prongs of said comb having, intermediate of their length, portions curved toward the back for the purpose of locking the comb to the hair."

The specification further states that the invention is not confined to any particular construction, shape, or form of the back or retainer. The prior art does not show a comb or device which has as efficiently retained the short hairs in place at the back of the head when the hair is dressed at the top of the head as the invention in suit. True, combs have been used from time immemorial which were quite as effective as coiffure clasps or pins, or, indeed, even to confine the loose or flying hairs, but none of the drawings and specifications of the various prior patents seem to have met the practical requirements or achieve the precise result of the patent in suit. For example, combs of the kind described in the Miller patent, No. 535,954, having a frame with four sides, and teeth projecting at different angles; hair fasteners with pin or curved prongs, as shown in the patent of Bates, No. 628,596; back

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combs, with comparatively long, curved teeth, as shown in the Bechtold patent, No. 551,175; ornamental head combs, with straight teeth and embellished frames, like the Warring patent, No. 129,441_were very well known at the date of the invention. These combs, and others to which attention is called by the defendants, were generally designed to fasten and retain the hair in position when dressed on different parts of the head. None of them were especially adapted to hold the short hairs in place at the back or side of the head when the hair is combed upward and fastened at the top. In this respect, according to the undisputed evidence, the patent in suit was an improvement, and is apparently superior to those of preceding date. That it has achieved some degree of commercial success may well be assumed from the testimony of the various witnesses for the complainant who deal in commodities of this character. The degree of invention is slight. Though the claims of the patent are for a combination of elements taken from the prior art, yet, when these elements were united in the manner shown in the patent, a new and useful result followed. That a new and useful result was achieved is not seriously controverted. Therefore, in view of the extensive use of the invented article, the principle enunciated in Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177, and Topliff v. Topliff et al., 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658, is thought to apply. The combs of the prior art do not securely keep the short hair from becoming unattached or loosened when dressed upward at the back of the head. By providing a device with prongs having intermediate of their lengths a curvature toward the back, “for the purpose of locking the retainer to the hair,” together with a contiguous extension, as stated in the claims, the patentee seems to have met the exigencies of the situation. The combination of the prongs, curved between their point and root, and attached closely to the back of the frame, permits retaining the long and short hairs in place. For the reasons stated, the defendants' contention that the patent is void for want of invention is thought to be untenable.

The patent to Nowacke, No. 673,650, dated May 7, 1901, is a close approach to the invention in suit, but does not anticipate it. There the teeth are parallel with the back, and do not possess the curvature which manifestly is the principal feature of the Bechtold patent in controversy.

Both parties have given evidence tending to show that their respective inventions were completed and disclosed to the public prior to the date of their applications, namely, the application of complainant for patent, dated July 3, 1901, and the application of defendants for patent, dated August 23, 1901. The evidence, however, is not persuasive, and therefore neither the complainant nor the defendants are entitled to have the date of their invention carried back prior to the date of application. The parties to this litigation are competitors in business, and each has zealously striven to be the first to produce a comb which would achieve the result accomplished by the patent in suit. Under the circumstances, and in the light of the views heretofore expressed, I am not inclined to hold, however slight the invention, that the question is merely one of mechanical skill.

The remaining question is that of infringement. Tln device of the defendants has a back or frame similar to that of the complainant.

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