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AUTOGRAPHIC REGISTER CO. v. A.I. NAMM & SONS

December 17, 1931

AUTOGRAPHIC REGISTER CO.
v.
A.I. NAMM & SONS, Inc.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a suit in equity for the alleged infringement of United States patent No. 1,396,070, granted on November 8, 1921, to plaintiff as assignee of the inventors, Walter C. Shoup and Walter E. Oliver, for paper feed device for autographic registers. The title of the plaintiff in the letters patent was conceded.

The Namm corporation is the nominal defendant, as the defense of this action was undertaken and conducted by the American Sales Book Company, Limited, a corporation of the Province of Ontario, Canada, which has manufactured for it and sells autographic registers, being the alleged infringing devices Exhibits 3 and 4 which were sold by the defendant within this district.

 Claims 4, 5, 6, 29, 30, 31, 32, 33, 47, 48, 53, and 54, which were relied upon by the plaintiff, are as follows:

 "Claim 4. In a device adapted to regulate the feeding of a plurality of superposed strips of fabric through the medium of an aperture in each thereof, means for advancing said strips comprising means which, upon engaging said apertures, render said advancing means inoperative to continue said advancement."

 "Claim 5. In a device adapted to regulate the feeding of a plurality of superposed strips of fabric through the medium of a series of apertures arranged longitudinally of each thereof, means for advancing said strips comprising means which, upon successively engaging said apertures, render said advancing means intermittently inoperative to continue said advancement."

 "Claim 6. In a device adapted to regulate the feeding of a plurality of superposed strips of fabric through the medium of apertures arranged in series both longitudinally and transversely thereof, means for advancing said strips comprising means which, upon successively engaging the series of transversely-arranged apertures, render said advancing means intermittently inoperative to continue said advancement."

 "Claim 29. An autographic register adapted for use with record strips containing a series of similar forms between each two of which a hole is provided, and comprising a frame, a roller journaled in the forward end of said frame, an annulus on said roller, and a rotating object against which said annulus presses a strip for movement thereby until said annulus enters one of the holes in said strip."

 "Claim 30. An autographic register adapted for use with record strips containing a series of similar forms between each two of which a hole is provided in each strip of forms, and comprising a frame, a pair of rollers journaled in the forward end of said frame, to receive said strips, an annulus on one roller to press a strip against the other roller for movement thereby until said annulus enters one of the holes in said strip, and means to advance all of said strips after the corresponding holes therein reach said annulus."

 "Claim 31. A device of the character described adapted for use with webs having a series of spaced feeding sections thereon, comprising, in combination, a support for webs, means for feeding a plurality of webs over said support, comprising means for engaging said webs at one of said feeding sections and feeding each of said webs a distance equal to the length of said feeding section of said webs, said means being adapted to pass out of engagement with said webs at the end of the feeding section, whereby the feeding of the webs is stopped, and means for engaging the webs for starting the feeding of said webs when said feeding means is not in engagement with the feeding section of the webs."

 "Claim 32. A device of the character described adapted for use with webs having scribed adapted for use with webs having longitudinally spaced perforations, comprising, in combination, a support for a plurality of webs, means for feeding said webs over said support comprising means adapted to engage said webs in longitudinal alinement with said perforations, said means being of a width less than the width of the perforations, and auxiliary means adapted to engage said webs out of alinement with the perforations."

 "Claim 33. A device of the character described adapted for use with webs having longitudinally spaced perforations, comprising, in combination, a support for webs, rotary means for engaging said webs in line with said perforations on a line of contact narrower than the width of the perforations, comprising rotating members acting on both faces of the webs, and means for engaging said webs out of alinement with the perforations to start the feeding of the same."

 "Claim 47. In mechanism for regulating the feeding of a strip of fabric through the medium of an aperture therein, the combination, with means for advancing said strip, which, upon engaging said aperture, become inoperative to continue such advancement, and means adapted for either mechanical or manual actuation of said advancing means, of means manually made effective for rendering said advancing means again operative for strip advancement."

 "Claim 48. In mechanism for regulating the feeding of a strip of fabric through the medium of a series of apertures arranged longitudinally thereof, the combination, with means for advancing said strip, which, upon engaging any one of said apertures, becomes ineffective to continue such advancement, of means for rendering said advancing means again effective for strip advancement, the period of intermission between successive advancements of said strip being variable at the will of the operator."

 "Claim 53. In mechanism for regulating the feeding of a strip of fabric having a series of perforations arranged longitudinally thereof, the combination, with a feed roller, and means for actuating said roller, of a rotatable member adapted for frictional engagement with said strip, and cooperative with said roller for strip advancement, said member, upon successively engaging said perforations, becoming non-effective to cooperate with said roller for strip advancement, and means rendered effective manually for bringing said member into frictional engagement with an unperforated portion of said strip, and thus rendering said member again effective to cooperate with said feed roller for strip advancement, whereby the period of intermission between each of the successive strip advancements is subject to manual control, either through the medium of said means for actuating said feed roller, or through the medium of said means for bringing said co-operating member into engagement with an unperforated portion of said strip."

 "Claim 54. In combination, a strip of fabric provided with a series of appertures arranged longitudinally thereof; rotatable means comprising a roller and a disk, by which the strip is advanced and which becomes ineffective to advance the strip when an aperture is over the disk; and means, actuated by an operator, to co-act with the feed roller to move the strip so that the aperture is no longer above the disk, whereby the feed roller and disk may again advance the strip."

 The plaintiff contends that the claims mentioned were infringed by the defendant by selling the alleged infringing devices which were furnished by the American Sales Book Company, Limited.

 The following patents were introduced by the defendant to illustrate the prior state of the art: Casler patent, No. 776,723; Cook patent, No. 486,768; Pfeifer patent, No. 496,894; Krauth reissue patent, No. 14,189; Jennings, Jr., patent, No. 1,235,805; Swift, Jr., patent, No. 963,828; Crowell patent, No. 624,308; Bilgram patent, No. 734,215; Keyes patent, No. 765,316; Schirmer patent, No. 1,106,976; and Schulman patent, No. 1,317,226.

 The defendant has offered as defenses that the alleged infringing devices were made and sold under a license granted by the plaintiff to the American Sales Book Company, Limited, under the patent in suit, and that the plaintiff is guilty of laches. The defendant denies infringement of the claims of the patent in suit, except it admits the infringement of claims 31 and 33 in the absence of a license.

 On an application dated October 19, 1916, the patent was granted on November 8, 1921. An interference was declared between this patent and an application of Louis F. Hagemann, filed July 17, 1917, for improvements in autographic registers. The Hagemann application was owned by the American Sales Book Company, Limited.

 The Patent Office, after submission of proofs of Shoup and Oliver, allowed all of the claims relied upon by the plaintiff in this action. The claims in the patent cover broadly autographic registers in which the feed of the strips of paper is effected by a feed roll or rolls, one or more of which is so arranged as to enter apertures in the strips of paper, thereby becoming temporarily inoperative to feed the strips.

 Hagemann, having lost the broad claims in the interference, prosecuted his application with respect to the specific subject-matter of his invention, and thereafter patent No. 1,456,773 was granted to the American Sales Book Company, Limited, assignee of Hagemann. Hagemann's invention consists of means for separating the feed rolls from the pressure rolls, thus releasing the paper strips from the grip of the rolls. The only means disclosed for such separation are pins 39 on the feed rolls, and such pins are required by each and all of the claims.

 The American Sales Book Company, Limited, as a result of the interference, was unable to employ the Hagemann invention without infringing upon the claims of the patent in suit.

 On April 18, 1918, plaintiff granted a license to the American Sales Book Company, Limited, which is still in effect, to make and sell registers involving plaintiff's invention, provided they also embodied the Hagemann invention. Under the terms of the license agreement the American Sales Book Company, Limited, did not receive an exclusive license to use the invention. The license contained the following provision: "First: The First Party hereby exclusively licenses and empowers the Second Party to manufacture, use and sell to others to use within the United States autographic registers and other paper feeding devices of the specific type disclosed in the said application of Louis F. Hagemann, and modifications thereof which do not depart from the general design illustrated in the drawings of said application and disclosed in the specification, it being understood that, subject to the foregoing limitations, the Second Party is licensed hereby to manufacture, use and sell to others autographic registers and other devices in which the feed of the strip or strips, such as are intended for use with the type of autographic register referred to herein, is affected by a feed roll or rolls, one or more of which are so designed or arranged as to enter apertures in said strip or strips, and thereby release the feed grip of the roll or rolls on the strip or strips."

 In this license agreement, the licensee acquired the right to use the broad invention only in conjunction with Hagemann's specific type of device. Under the license agreement plaintiff had the right to use the invention, but obtained no right to use Hagemann's invention.

 Pursuant to the terms of the license agreement, plaintiff is entitled to operate under the invention of the Shoup and Oliver patent. It is excluded from employing the specific type disclosed in the Hagemann application. The American Sales Book Company, Limited, is licensed to use and manufacture and sell to others to use within the United States autographic registers and other paper feeding devices of the specific type disclosed in the said application of Louis F. Hagemann, and modifications thereof ...


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