fendant had neither produced a Scott device, nor shown to the court that it covered a working and workable apparatus. It is now admitted that the so-called Scott-Lamme magnet went into extensive and successful use for years, and we have before us an actual apparatus which has practically demonstrated its value.

Research since the first appeal has also revealed a French patent (No. 322,254) antedating Lindquist and describing a magnet operated or actuated by a two-wire current; and finally it now appears what is the relation in the mind of the patentee himself between his own (so-called) senior and junior patents. Speculation is no longer necessary as to why two applications were filed.

Considering the nature and extent of the foregoing new matter, of which a considerable part appears also in the Cutler-Hammer record, it seems advisable to restate the construction of the patent made upon an incomplete record, as preface to a statement of changes of view produced by new evidence, and to do this before consideration of the motion of General Electric Company to reopen the whole case. The object of Mr. Lindquist's invention, as plainly stated in his specification, was to hold an armature in position with an alternating current by means of a "substantially constant pull" and (as a result) "without chattering." It being obviously unlawful to attempt to patent per se "a substantially constant pull," the applicant describes his patentable means, which are a "symmetrical" disposition of a "plurality of coils" around a "central axis"; the axis of each coil being "parallel to said central axis." This symmetrical disposition of coils is illustrated by numerous figures, all revealing coils in pairs except one (Fig. 5), which exhibits three coils only. The currents actuating said coils are shown in both two-wire and three-wire systems; in the former case dephasing of current being accomplished by a resistance for which the patentee asserts no invention in himself. Having disclosed these various embodiments of the means of attaining his result, Lindquist sums the matter up by calling attention to the fact that in all his various styles of apparatus "the axes of the coils are always parallel to, and symmetrically disposed around, the axes of the cylindrical magnet core." It is thus seen that what the patentee described as his invention, the things upon which he founded the claims descriptive and definitive of that invention, all consist in a symmetrical arrangement of coils, always parallel to and surrounding the axis of the cylindrical core.

It has always been admitted that this description and the claims in suit accurately fit a core cylindrical in the ordinary geometrical sense and symmetrically (i. e., in a circumference) surrounded by coils also cylindrical and having axes parallel to that of the cylindrical

But such a reading of the claim (it was said) would confine the patentee to a mechanical arrangement, capable of avoidance by infringers, without departing from a co-ordination of parts capable of producing the same electrical and mechanical results as those sought after and attained by Lindquist, and Magnet H was urged as an effort to accomplish exactly this result. The situation, and the nature of the argument is summarized by the subjoined drawings:

156 C.C.A.-38

Construing the patent favorably, and believing (upon evidence then produced) that the patentee had accomplished a broadly novel result by new and ingenious means, this court affirmed a holding that the symmetrical or cylindrical arrangement covered by the claims and described in the specification, applied to magnetic symmetry rather than to physical or geometrical relation. No such phrase as "magnetic symmetry" is to be found in the patent. It is a creation of expert witnesses, and was adopted by the court as meaning that "the net pull of all the coils must be constant and in one and the same straight line; and this line must be coincident with the axis of symmetry of the core." 198 Fed. 118. The court below also said that any arrangement of a core with coils and pole pieces adjacent, which results in a "substantially uniform distribution of symmetrically balanced magnetic forces," would constitute magnetic symmetry and infringe. 198 Fed. 119. This emphasized the idea of equal forces "balanced" so as to produce a fixed point of application of force. Our view was correctly stated by Hand, J., in the Cutler-Hammer Case by saying that we held:

"That Lindquist was the inventor of a mechanism to hold the armature against the magnet without noise or vibration by means of magnetic forces constantly applied at the point of contact without shifting."

If the symmetrical arrangement prescribed by the claims was made referable to a "straight line [of pull] * coincident with the

axis of symmetry of the core," it is plain that by the use of Thomson's shade coils, equidistant from the axis of plunger, Magnet H obtained a fixed point of pull in the plunger axis line; that pull never shifted, but it did fluctuate in value, as does the form of Lindquist's device (Fig. 7) in which a two-phase current is derived, by an interposed resistance, from a single-phase.

These considerations produced the finding that Magnet H infringed. In reaching that success, plaintiff, through its expert, deliberately dropped as an immaterial error the construction shown in Fig. 5 of the patent, because that shows (without explanatory comment in the letter-press) a three-wire system with an arrangement of currents certainly productive of a shifting point of pull, with a constant force of pull. Such a resultant could never be "coincident with the axis of symmetry of the core," or of any reasonable equivalent to a core. To save the patent, this disregard of what seemed not vital at all events was allowed, though not discussed in any of the decisions enumerated. Such practical excision of Fig. 5 is obviously necessary, if the doctrine of "magnetic symmetry" (as recognized in 204 Fed. 277, 122 C. C. A. 475) is maintainable; for the only possible way of calling all the embodiments of invention pictured and described by Lindquist, "symmetrical" is to refer that word solely to the mechanical or geometrical arrangement of poles and coils around a central axis, which is the very thing sought to be avoided by "magnetic symmetry."

Upon reconsideration of the record in the General Electric Case as it stood prior to the petition for supplementary injunction, we are not disposed to depart from the decision then made; but if this were the first appeal, and all the testimony had been adduced on final hearing, we should unhesitatingly hold that Lindquist's invention was accurately described in the claim allowed him by the German Patent Office, which is definitely and unmistakably restricted to mechanical symmetry.

The additional evidence on which our present opinion rests, has been already summarized, except that given by Lindquist himself. From him we learn that Ihlder's magnet (patent No. 791,423) was not only prior in time, but that the problem set Lindquist (apparently by the common employer of both patentees) was to study Ihlder's actual mechanism, and improve it. The improvement consisted in changing the mode of construction, by producing pole pieces and contacts. from a cylindrical ribbon roll of metal, a method which minimized or avoided what is called "humming," but treated "chattering" just as Ihlder did, except for such suggestions as those of Figs. 5 and 7.1

Upon these appeals we are confronted with the Cutler-Hammer magnet, and Magnets A to G of the General Electric Company, and we shall first consider them without regard to the new proofs above

1 The second patent in suit (764,608) needs no separate mention. While it describes a polygonal, instead of cylindrical, arrangement of parts, the differ ence is functionally unimportant. The form was adopted solely to cover the ordinary and cheaper laminated construction; and since the patentee clearly contemplated a regular polygon, capable of inscription in a circle, “functional cylindricity" of arrangement was preserved.

adverted to and adduced on the petition for supplementary injunction.2

It is plain (and as much is shown by the opinions of the trial courts) that in order to bring the present alleged infringements within condemnation, we must considerably enlarge the definition or meaning of "magnetic symmetry," deemed sufficient (if not final) when the patent was here before; and we are now introduced to other phrases thought to picturesquely describe or characterize Lindquist's apparatus, to wit, "functional cylindricity" and the "business end" of any given magnet.

The conduct of this litigation emphasizes the danger of a sort of exposition or argument by no means uncommon in patent causes. We have said that the phrase "magnetic symmetry" cannot be discovered in the patent; nor can either of the other argumentative expressions above set forth. "Functional cylindricity" appears to mean any physical arrangement of parts even approximately productive of a result most conveniently arrived at through or by means of a cylindrical disposition of the same; while the "business end" of a magnet is "the one which determines whether chattering will occur or not." Phrases such as these, if used or accepted without great reservation, are apt to be treated, not only as convenient descriptions of operation or method, but as being the very patent itself; and it is scarcely figurative to say that plaintiff measures infringement in this case, not by the language of the patent nor even the language of the courts, but by the asserted applicability of phrases invented by experts. Thus we are informed on this hearing that:

"Magnetic symmetry may be defined as such a distribution of the magnetic fluxes in the polar faces which are in contact when the magnet is energized as will provide out-of-step pulls, the resultant of which never disappears and is substantially constant in direction and point of application."

No such definition of magnetic symmetry has ever been admitted by this court; nor (even upon the evidence formerly before us) can it be discovered in the patent. It requires that the resultant of outof-step pulls of successively acting alternating currents "shall never disappear"; but, if entire disappearance is meant, that was old. It further requires constancy in direction and point of application. This is found in the Lindquist device only by discarding Fig. 5; but the present definition deliberately explodes the theory of the case against Magnet H by introducing the word "substantially," which, when interpreted in the light of the instruments now alleged to infringe, must mean any arrangement of dephased or out-of-step alternating currents which will produce a commercially successful article. Under such an interpretation as this the Lindquist claims would read directly upon substantially all the magnets of prior art referred to in the original record; e. g., Scott's and most of Schuckert's.

Even if the meaning and scope of the claims in suit were measured solely by the former opinion of this court, all the devices now called

2 The shape, arrangement, and general appearance of these alleged infringements are sufficiently shown in 235 Fed. 711 et seq.