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to improve "cut-outs for incandescent lamps," and the device he described was intended

"to provide an automatic short-circuiting device for incandescent lamps operated in series. It consists of a spring attached to one of the terminal pieces of the lamp and bearing by its resiliency against the opposite terminal, from which, however, it is normally insulated by means of a small piece of paper. This paper is a sufficient insulation under normal circumstances to prevent electrical connection between the opposite terminals of the lamp; but under abnormal conditions, occasioned by a breakage of the carbon or other accident to the lamp, this paper will be perforated by the increased potential between the parts on opposite sides of it, and the spring will then come into positive engagement with the metal and form a short circuit for the lamp."

Having thus described the well-known function of a cut-out, he turns to his particular object, namely, a special form of construction, and says that in practice he might apply the construction directly to a lamp (meaning a bulb), or-and here is the new thought-"I may provide an independent piece adapted to be included between the base of the lamp and the lamp-socket, which contains the short-circuiting device or cut-out above described." He then describes the form that is to be applied directly, and shows it in the usual two parts-a socket and a bulb-the socket containing a line-closer, and the bulb having a special base containing his cut-out. He then takes up in turn his new thought, and illustrates it in Figs. 4 and 5. Evidently what he had in mind in this alternative construction was the use of an ordinary incandescent bulb, and he thus describes the use of what he calls an "independent piece," or an intermediate piece," or a "separable piece":

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"In Figs. 4 and 5, K represents an independent piece adapted to be attached to lamps which have not been provided with my cut-out. It is provided on one side with contacts corresponding to the contacts of the lamp-socket, so

that the lamp may be attached to it just as it is ordinarily attached to its socket. On the other side, piece K has a receiving screw-socket and a contactring corresponding to the similar parts D and E of the lamp-base, so that it may enter the lamp-socket just as the lamp itself might do. By this means my cut-out is made as an independent piece adapted to be inserted between the lamp and its socket. In this form I have shown the piece K as composed of two short concentric cylinders R and S, separated from each other by an insulating-ring T. The part R has upon one side a screw adapted to enter the screw-socket D in the base of the lamp, and at the other end it is formed into a screw-socket corresponding to D, and adapted to enter the lamp-socket just as the part D might do. The outer cylinder B forms a structural support, and at the same time is adapted to connect with ring E and also take the place of said ring to make contact in the socket. The spring F in this case is attached to interior cylinder K, and is spring-pressed against cylinder S, but insulated therefrom by a paper film, as in the former case.

"The device which I have thus described forms a neat and effective cut-out for a series lamp by making but a slight change in the lamp as at present constructed, and, if necessary, no change whatever."

And claim 5 broadly claims this combination in terms that seem to read clearly on the device of Jones.

The complete lamp contemplated by Wirt consists of three parts, each distinct and separable from the other two-first, the ordinary incandescent bulb carrying a filament; second, the independent piece. containing the cut-out; and, third, the socket containing the linecloser. In other words, he divided the socket into two parts, an upper and a lower, each part having a distinct function. One part receives the current and carries the line-closer; the other part transmits the current and carries the cut-out. The cut-out is put in the independent part, and being thus detached from the base of the bulb is saved for further use when the bulb is scrapped. And the linecloser is put in the other part of the old socket, for the Thomson device had shown the danger and inconvenience of assembling the line-closer and the cut-out in the same member. The cut-out was put in a new member, and this was separable both from the bulb and from the other part of the socket.

It is true that this suggestion did not bear commercial fruit, and Wirt himself (being now in the plaintiff's employ) depreciated this form of his own device. But the fact seems to be this: The new member was unsatisfactory, not because it was independent, or intermediate, but for other reasons. It was small, and it was not insulated; sometimes it would bind, and removing it was then inconvenient and dangerous, while similar objections attended the replacing of a film. And it was of metal, a conductor of current, but of course there would be no invention in substituting porcelain or some other nonconductor. Jones uses porcelain for the second and third members of his combination, and no doubt this is a beneficial change; but it does not rise to the dignity of invention, the function of the member remaining the same-to say nothing of the prior use of porcelain in the art. Now, although Wirt testified that his intention was to make the independent or intermediate member “a permanent part of the lamp," to be screwed upon the base "never to be divorced therefrom while the lamp remained usable," the patent contains no such statement, but, on the contrary, refers to the

separableness of that member, and shows a separable construction. As it seems to us, the situation is plain enough; for the first time Wirt disclosed a three-part structure, the function of each part being independent, and the position of the cut-out being in the new member.

This brings us to the patented device in suit, which has been manufactured and sold since 1901, and has had a considerable commercial success. It has been in strong hands, and this may have had something to do with its increasing sale. No doubt, also, its success has been helped by the growing use of the incandescent series, due at least in part to the successful employment of current regulators about 1900, and to the general use of the tungsten filament since 1910. But its success is probably due in part also to its own merits, and we do not wish to depreciate it. In our opinion, however, it is not entitled to the commanding place in the art that is claimed. for it. It is a three-part device, and its scope will appear in the following paragraphs from the specification:

"My invention relates to sockets for incandescent lamps, and especially those used in series incandescent lighting. In such a system it is necessary to provide some means for keeping the circuit closed in case a lamp burns out or is removed from its receptacle. Moreover, it is highly desirable to provide such an arrangement of contacts that there will be no danger of an arc when one removes the socket from the receptacle. These objects I accomplish by the invention which forms the subject of the present application. I provide a receptacle with spring-contacts which remain closed until the spring-contacts on The lamp-contacts are nora lamp socket are thrust in between them. mally separated by a piece of insulation of low dielectric strength, so that it will break down and shunt the lamp in case the lamp-filament breaks or burns out. The spring-contacts on the lamp-socket are so arranged that when the socket is withdrawn from the receptacle said springs remain in engagement with those on the receptacle until after the latter have closed together, thus preventing the formation of an arc.

"The receptacle is composed of a disk A of insulating material, such as poreclain, having a central hole a and oppositely-arranged grooves a' running In each groove is received one from said hole toward the edge of the disk.

end of a flat metal spring-contact B, which is fastened by a screw C and has also a screw D, provided with a nut d for attaching the line-wire terminals. Each spring has a bead b and an inclined end B', said ends being normally in contact when no lamp is in circuit, as shown in Fig. 3.

"The lamp-socket E, of porcelain or the like, contains the usual contacts e e' for the lamp-terminals, each in electrical connection with a flat metal spring F projecting from the bottom of the socket. Each spring has a bead f and an inclined end f', said ends clamping between them a flat piece of insulation G, such as paper, silk, or the like. The bottom of the socket has a protecting washer H, of rubber or the like, to keep the socket from chipping when it is pushed against the receptacle.

"When the lamp-socket is out of the receptacle, the spring-contacts B automatically keep the circuit closed. When a lamp I is to be cut into the circuit, it is inserted into the socket E, whose springs F are then thrust in between the springs B, making firm contact therewith before the ends b' of the spring are separated. When the socket has been pushed home, the beads b lie in the beads f, and not only securely retain the socket in place, but make a good electrical connection between the line-terminals and the lamp-terminals, the ends b' of the spring B being widely separated, as shown in Fig. 5. The insulation G prevents any short-circuiting of the lamp.

"If the lamp-filament breaks or burns out the current breaks down the insulation G and closes the circuit between the springs F. When the lineman removes the socket to replace the insulation cut-out, the springs B come together before the springs F have separated from them, as indicated by the

dotted lines in Fig. 3, so that no dangerous arc can form, nor is the lineman in danger of getting a shock from the line. A further protection is afforded by the fact that the contacts are entirely hidden when the socket is in place. Moreover, since the socket must be completely removed before the cut-out G can be renewed, all liability of a short circuit through the lineman is avoided."

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Only one of the eight claims is in issue:

"In series incandescent lighting, a receptacle having automatic line-closing contacts, and a lamp-socket adapted to receive an ordinary incandescent lamp therein and carrying co-operating contacts normally separated by insulation of low dielectric value."

This claims broadly a three-part device, namely: (1) An ordinary incandescent bulb; (2) a member containing a line-closer; and (3) a member containing a cut-out. It is the breadth of this claim that is objectionable, and in view of Wirt, we think it cannot be sustained. Indeed, the indebtedness of Jones to the older patents lies on the surface. He is indebted to Wightman and Lemp for the excellent, beaded, prong-like springs, used in his line-closer, and also in his cut-out. His socket is an ordinary Edison socket with screw shell and center-contacts, and is held in place by the Wightman prongs. The socket-piece is thrust into the third or receptacle piece by a straight push inward just as a lamp is thrust into the Wightman socket; and a bulb is screwed into the shell of the Jones socket just as an Edison bulb is always inserted. His line-closer is where Thomson put it; he arranges it as Wightman and Giovanni suggested; his third member comes from Wirt, and contains the cutout; and he makes the whole device comparatively safe by the free use of porcelain as an insulating material. We refrain from going into the particular device, and we intimate no opinion concerning

the other seven claims. All we are called upon to decide is that the first claim is too broad to be sustained, and must therefore be declared invalid.

We have had some difficulty in following the arguments, owing to the different, and sometimes the confusing, meanings that have been given to the terms "socket," "receptacle," and "intermediate part"; and for this reason we have avoided the use of "receptacle," and have tried always to apply the same word to the same part. The decree is affirmed.

(232 Fed. 729)

KEUFFEL & ESSER CO. v. EUGENE DIETZGEN CO.
(Circuit Court of Appeals, Second Circuit. February 15, 1916.)

No. 172.

PATENTS 328-VALIDITY AND INFRINGEMENT-FOUNTAIN LETTERING PEN. The Payzant patent, No. 758,381, for a fountain lettering pen, claim 2, held valid and infringed.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in equity by the Keuffel & Esser Company against the Eugene Dietzgen Company. Decree for complainant, and defendant appeals. Affirmed.

This cause comes here upon appeal from a decree in favor of complainant. The suit is the usual one in equity for infringement of patent. The patent sued on is No. 758,381 granted April 26, 1904, to Octave Payzant for a fountain lettering pen. The only claim involved in this appeal is the second which reads:

"A pen with rigid nibs which terminate in a circular plane marking surface, said circular plane marking surface being beveled to an angle of 45 degrees with the longitudinal axis of the pen."

The opinion of Judge Augustus N. Hand in the District Court is as follows:

This is a suit for infringement of United States letters patent No. 758,381. Complainant's invention is a very simple one and relates to lettering or marking pens. The claims under consideration are the following:

"1. A pen with nibs which are each semi-circular in shape on its transverse section at the point, the said nibs terminating in a marking surface which is a circular plane.

"2. A pen with rigid nibs which terminate in a circular plane marking surface, said circular plane marking surface being beveled to an angle of 45 degrees with the longitudinal axis of the pen."

The pen described in the foregoing claims is designed to hold a large volume of ink and to make wide lines of uniform width in any direction. The pen described in each of the foregoing claims contains a new and useful combination of elements which I do not find disclosed in the prior art. In the references presented by the defendant I see nowhere a pen with nibs terminating in a marking surface "which is a circular plane." I think the complainant's device shows invention and it has evidently met with some commercial success. I am doubtful whether claim 1 is not so broad that it should be properly limited to the pen described in detail in the specification. If this were done, claim 1 as so limited would be practically identical with claim 2. It is, however, unimportant for me to decide this, as I am of the opinion that claim 2 shows a valid combination and is infringed by all of defendant's devices. Defendant's devices all consist of a pen with rigid nibs which terminate in a

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