candescent filament (and grid) to the battery circuit, would not of themselves be normally strong enough to excite the telephone; but they can and do produce changes in the battery current sufficient for that purpose. They (so to speak) pull a trigger, and this trigger action is the audion effect, wherefore the audion is not a rectifier, but an "amplifier." It seems clear to us that some of the foregoing is disingenuous, and more immaterial. The "gaseous medium" of the audion is nothing but the commercial vacuum of the ordinary electric light bulb. -air being a gas, and the bulb containing some residual air. In other words, defendant uses the same "vacuous vessel" that Fleming does. As for the "trigger action," "audion effect," and such-like clever phrases, they merely hide the real inquiry, viz. how do the high frequency oscillations, or any part of them, or their electrical result or influence, get into the indicator or battery circuit, no matter what they do after arrival? Plainly it is done just as in the Fleming valve. This is the one act, or step, which is essential to either a valve or an audion being a detector, and Fleming's invention consisted in producing a detector, which Edison did not do. A detector must act on alternating currents. This it is that makes defendant an infringer by the manufacture and sale of what may be, and probably is, an improved detector. [5] The contention that Fleming's patent, whatever its original merit or lack thereof, was voided by an unlawful disclaimer, is without substance. The mistake (if there was one) was in claiming something not needed, and the disclaimer abandoned what was not wanted, without broadening or enlarging any claim; it also left the claims fully supported by the original specification. No injury to defendant, or any one else, is shown. The procedure is within Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 22 Sup. Ct. 698, 46 L. Ed. 968, and our former decisions in Simplex, etc., Co. v. Pressed Steel Co., 189 Fed. 70, 110 C. C. A. 634, and Strause, etc., Co. v. Crane Co., 235 Fed. at page 129, 148 C. C. A. 620.

[6, 7] The position of defendant in respect of the counterclaim patents has been given, but, as put by counsel, it is as follows:

"De Forest was the first inventor of a detector comprising a local circuit, containing a battery and a telephone, this circuit having terminal electrodes in a gaseous medium such as air, made conductive by electrode heating by electric means."

This is not the whole thesis, but it is enough for present purposes. The position thus defined amounts to asserting that, if defendant can show that the inventor had one thought running through his mind, and produced a series of patents for what from time to time appeared to him the best current embodiments of that thought, therefore any one who constructs another apparatus, utilizing the same theory of action, must be an infringer of the whole line of patents.

While not accepting such view of the law, we shall first ascertain what visible objects plaintiff has made, sold, or used which are said to infringe the counterclairn patents. The detectors called by defendant "Marconi's earlier infringement" or the "two electrode audion" are especially complained of, though, since it is agreed that the "two" and "three electrode audions" operate on the same basic principle, no rea

son appears why defendant must not contend that the same things which admittedly infringe the confessed patents also infringe all the counterclaim patents.

But, even on defendant's summary of these De Forest patents, there can be no infringements if, as matter of fact, the patentee (1) was not the first to disclose a detector with the enumerated characteristics; or (2) never disclosed or patented as an element of his device "terminal electrodes in a gaseous medium such as air"; or (3) if the devices of the counterclaim patents still in suit are for any reason different in kind from those covered by the confessed patents; or (4) if the patents in suit on the counterclaim are inoperative or invalid.

(1) De Forest was certainly not the first to disclose or invent a detector comprising a local circuit containing a battery and a telephone, and we find it true that the so-called "two-electrode audion" is no more than a Fleming valve with and in a circuit with adjuncts antedating both De Forest and Fleming.

(2) The expression "gaseous medium, such as air," is an endeavor to conceal what we regard as the plain disclosure of all the counterclaim patents based on original applications dated February 2, 1905, and January 18, 1906, viz. that the patentee's fundamental concept was to produce conductivity by heating. He thought and taught that heated air, or the heated gases of (e. g.) halogen salts, when the point of disassociation into positive and negative ions was reached, produced a medium favorable to conductivity. Neither of plaintiff's devices operates on any such principle; whether there is any merit in De Forest's disclosure is immaterial.

(3) We agree with the court below that the radical difference between the disclosures of the first six counterclaim patents and anything shown to have been used by Marconi is apparent on inspection; because none of De Forest's devices utilize a commercial vacuum, or what defendant's expert called a vacuum of the order of an ordinary electric light.

(4) The seventh counterclaim patent (841,386) is proved to be inoperative. The patentee declares that by "suitably varying the length of interelectrode medium" he can make the audion "per se selectively responsive." Assuming this last phrase to mean "make it work, fendant at the trial did not do it, and we think refused to try.

It follows from the foregoing that we hold patent No. 841,386 void, and all the other patents of the counterclaim (still in suit) not infringed. It is not often that any case contains so much history as does this one. It is true that Dr. De Forest, through the whole line of the counterclaim patents, sought after a commercially useful detector, and ultimately produced one; but it is not true that he consistently followed one concept or theory and tried to reduce that to practice. He began with the heated gas theory; he ended with the three-electrode audion, employing the commercial vacuum, and before he produced that success he learned of Fleming's invention and the latter's address before the Royal Society. He promptly used the knowledge so acquired, and it is the endeavor to connect these differing lines of effort and conceal their lack of normal connection that has produced the theorizing of this record, and also the persistent, use of the word "audion" as applied

even to the earliest De Forest patents, which are of dates before that word was coined.

Among the curiosities of evidence in this record are numerous extracts from technical periodicals giving the opinions of the authors. on the subject-matter of this suit. One from The Electrician, of November 21, 1913, is a just comment on the cause:

"We think that Dr. De Forest might be more generous in his acknowledgment of the work of Dr. J. A. Fleming. Our readers generally will probably agree that the audion, although differing widely from the Fleming valve, is an offshoot of it."

The decree below is affirmed, with costs.

(243 Fed. 567)

FIZZELL v. LOURIE MFG. CO.

(Circuit Court of Appeals, Seventh Circuit. April 10, 1917.)

No. 2194.

PATENTS 328-VALIDITY AND INFRINGEMENT-TIRE SETTER.

The Henderson & Lourie patent, No. 933,834, for an edge-grip tire setter, was not anticipated, and discloses patentable invention and utility; claims 2, 3, and 5 also held infringed.

Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.

Suit in equity by the Lourie Manufacturing Company against Robert Fizzell. Decree for complainant, and defendant appeals. Affirmed. Taylor E. Brown, of Chicago, Ill., for appellant. W. Clyde Jones, of Chicago, Ill., for appellee.

Before MACK, ALSCHULER, and EVANS, Circuit Judges.

MACK, Circuit Judge This is an appeal from the decree of the District Court, granting an injunction and accounting for the alleged infringement of claims 2, 3, and 5 of letters patent No. 933,834, granted September 14, 1909, to Henderson and Lourie, on an application filed January 17, 1906, for an edge-grip tire setter. These claims are as follows:

"2. In a tire setter, the combination of gripping blocks provided with means for engaging the edge of the tire, and means for yieldingly supporting the blocks to conform to the curvature of the tire; said means comprising a yielding support on which said blocks rest and adapted to be engaged by the tire." "3. In a tire setter, the combination of gripping blocks provided with means for engaging the edge of the tire, and a plate on which the blocks rest with their rear ends; said plate being yieldingly supported and adapted to be depressed by the tire to adjust the blocks to the curvature of the tire."

"5. In a tire setter, the combination of a frame, a stationary head block secured thereon, a second head block movable on the frame, gripping blocks movable in said head blocks, a hydraulic press mounted upon the frame and provided with a piston rigidly connected with the movable head block, means for moving each pair of gripping blocks in unison and relatively to their respective head blocks, and means adjacent to said means for moving the gripping blocks whereby fluid is forced into said hydraulic press to impart movement to said head blocks."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The following drawings will assist in the understanding of the is

Various methods are used for setting steel tires on vehicle wheels, the object of all being to contract the circumferential length of the tire, so that it will firmly grip the felloe of the wheel and be securely. held there by friction. The oldest method, and one which is still in limited use, is hot setting by hand. This consists in removing the tire from the wheel, reducing its diameter to the desired length by cutting out a piece, welding its ends together, and heating the tire so that it may be slipped over the felloe. As the tire cools, it contracts and grips the felloe firmly.

The oldest method of setting tires by machine is the face-grip method. This process does away with the necessity for cutting and welding. The tire is removed from the wheel and usually heated at a point on its periphery. This heated portion is clamped between jaws, which grip the tire on its inner side or face, and which are forced towards each other by mechanical means, so as to upset or compress the metal between the two sets of jaws.

More recently cold-setting machines capable of setting the tire while on the wheel have come into use. These machines are of two sorts, edge-grip and full-circle. In the latter, the upsetting mechanism, consisting usually of hydraulically actuated cylinders, is applied radially at a plurality of points on the tire, so that the inward motion of the pistons compresses the tire and causes it to fit the felloe snugly. As these full-circle tire setters are large in size and comparatively expensive, they are used chiefly in wheel factories and are found in only a few larger blacksmith shops.

The machines of the edge-grip type, to which the patent in suit belongs, are simpler and less expensive. The upsetting occurs at one place only, and is produced by two pairs of gripping jaws, which engage the edges of the tire, and which, when moved toward each other, cause the tire between the two pairs of jaws to be compressed or upset, so that its circumferential length is reduced, with the result that it will fit more closely about the felloe.

"The object of the invention" in suit, according to the specifications, "is to so construct an edge-grip tire setter that it can be operated by hydraulic pressure. A further object is to provide improved means for adjusting the gripping blocks, so as to conform to any shape and diameter of the wheel." The machine, as described in the specifications, consists of two blocks or heads, a fixed head 2 and a movable head 3, mounted on a frame. These heads are spaced and held apart by a coiled spring 14. To allow tires to be set firmly in the machine, the head blocks are provided at either side with projecting jaws 18 and 19. The oblique inner edges of each jaw incline towards each other and towards the outer ends of the heads, so that they form a converging channel. In this channel is inserted a pair or set of gripping blocks or jaws 20, which are wedge shape and adapted for engagement with the beveled inner surfaces of the projecting jaws. When the gripping jaws are moved longitudinally outward with respect to the head block on which they are mounted, they will be forced inwardly on account of the oblique surfaces of the projecting jaws, and the teeth on the gripping jaws will engage the edges of the tire. This longitudinal movement,