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September 10, 1934


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This action is brought for relief by injunction and money damages, for the alleged infringement of patent No. 1,879,863, issued to Harold A. Wheeler, assignor to Hazeltine Corporation, for volume control, granted September 27, 1932. Original application filed July 7, 1927, serial No. 203,879, and in Great Britain July 3, 1928. Divided and this application filed November 13, 1930, serial No. 495,386.

This suit is based on claims 1, 5, 6, and 10 of the patent in suit.

 The plaintiff, Hazeltine Corporation, is not a manufacturer, but is the owner of a number of patents, of which the patent in suit is one of one hundred and fifty seven, and its sole activity consists in granting licenses to manufacturers of radio apparatus under all of its patents.

 The defendant is engaged in operating a small retail store in Flushing, Long Island, and regularly handles the Bosch and RCA-Victor radio receivers.

 The United American Bosch Corporation, Colonial Radio Corporation, and RCA-Victor Corporation, the respective manufacturers of the three radio receivers alleged to infringe in this case, are not licensees of the plaintiff.

 The three corporations last above named are all licensees of Radio Corporation of America, General Electric Company, American Telephone & Telegraph Company, Western Electric Company, and Westinghouse Electric & Manufacturing Company (and their respective related and associated companies), under all patents owned by each of them, and the radio receivers charged in this case to infringe were manufactured under such license.

 All of the patents of the prior art in evidence in this case, to which I will hereinafter refer, are patents under which the three alleged infringing receivers are and were licensed, and this is true whether there was recited on each of them the numbers of all of said patents or only some of them.

 A suit in equity (No. 6873) was brought by the same plaintiff in this court against the same defendant, prior to the commencement of the present action, complaining of the defendant's sale of one radio receiver manufactured by the Kolster Radio Company of Newark, N.J., and known as Kolster model K-130.

 No other manufacturer or set was ever referred to at any time in that suit.

 The Westinghouse Electric Supply Company, which was interested in the Kolster only, assured the defendant of reimbursement for any damages or costs which might be assessed in said suit against Kolster sets, the defendant defaulted after answer, and a decree was entered therein after inquest, containing the usual provisions as to validity of the patent and the infringement thereof of the said Kolster receiver model K-130.

 The manufacturers of the Bosch, Colonial, and RCA-Victor sets have not involved themselves in the present suit.

 In Hazeltine Corporation v. Benjamin Abrams et al., 7 F. Supp. 908, a suit brought in this court on claims 1, 5, 6, and 10 of the patent in suit, Judge Galston, in his opinion dated August 2, 1934, held the same to be invalid, claims 1, 5, and 6 for want of invention because of Affel patent, No. 1,574,780, Heising patent, No. 1,687,245, and Bjornson patent, No. 1,666,676, and claim 10 for want of invention because of Heising patent, No. 1,687,245.

 By reason of the decree on default in the former suit, the defendant cannot raise an issue as to the validity of the patent in suit, and in this suit the patent in suit must be treated as valid.

 The defendant can and does raise the issue of infringement, and may seek to limit the construction of the claims in view of the prior art.

 I find no support for plaintiff's claim of infringement in the granting of a preliminary injunction in this suit, as Judge Moscowitz, by his opinion, clearly shows that he believed there was no issue of infringement before him, while on this trial that issue has been fully litigated, and much evidence offered which was not before Judge Moscowitz.

 Plaintiff offered evidence designed to show commercial success of the patent in suit.

 Evidence of commercial success may, when the question of invention is a narrow one, lend weight in the determination of that question, but, inasmuch as the patent must be accepted as valid for this case, such evidence does not assist.

 In any event the evidence of commercial success is not impressive, as the evidence does not furnish grounds for determining what success this patent may have had, disassociated from other patents owned by plaintiff.

 The settlement by the Zenith Radio Corporation and its terms does not assist in determining the question of infringement in this suit, but in any event the $10,000 paid by that corporation was not merely in settlement of that suit, but in settlement of past infringement of all of the patents of the Hazeltine Corporation during the many years of the existence of the Zenith Radio Corporation.

 We will therefore proceed to consider the three radio receivers of three different manufacturers, Bosch, Colonial, and RCA-Victor, confining the discussion to the question of infringement.

 My findings are based on conflicting evidence, and, while I have considered the evidence, arguments, and briefs offered on behalf of both plaintiff and defendant, I find it neither necessary nor proper to discuss it all in detail.

 The patent in suit is not a pioneer patent. The patent in suit relates to the radio art, and is directed to "automatic volume control," usually termed AVC. This has been defined by the Standardization Committee of the Institute of Radio Engineers, as "a self-acting device which maintains the output constant within relatively narrow limits, while the input voltage varies over a wide range."

 Automatic volume control or AVC, and the fundamental principle thereof, viz. the utilization of a direct current potential from the output circuit of a device, to affect the input circuit of an associated amplifier, to thereby control the degree of amplification effected by the amplifier, has been known at least as early as 1921. See Affel patent, No. 1,574,780, included in Exhibit B.

 The drawings of the patent in suit, in Figs. 1, 3, and 7, show three radio frequency amplifier tubes arranged in series; the output circuit of the last amplifier tube being connected to the input circuit of a detector tube. This detector produces audio frequency currents. In each figure it consists of a triode (a three-electrode tube) having its two cold electrodes (the plate and grid) connected together so that the vacuum tube acts as a diode (a two-electrode tube). The detector tube in each instance is located between the radio frequency and audio frequency sections, and its output circuit passes on to the remainder of the system (shown as comprising audio frequency amplifier tubes and a loud speaker) the current that passes through it. In each instance, likewise, the output electrode and output circuit of the detector tube is the sole means by which the current, which ultimately reaches the loud speaker, is relayed to it. Likewise, in each of the figures the output electrode of the detector is also connected, as an automatic volume control, to the grid or control input electrode of one or more of the radio frequency amplifiers.

 Figs. 4 and 6, the two remaining circuit figures of the patent, differ from Figs. 1, 3, and 7, principally in the type of detector that is employed.

 Figs. 4 and 6 employ the conventional three-electrode detector, that is, a triode used as a triode, instead of using a triode connected as a diode.

 In Fig. 6 the filaments of the vacuum are shown as connected in series, whereby the resistance of the filaments establishes a potential difference between the filament of the detector tube (and therefore the plate electrode thereof) and the filaments of the amplifier tubes which precede it.

 Fig. 7 combines the features of Figs. 1 and 6, and shows a triode connected as a diode as the detector performing the double function of effecting automatic volume control and serving to relay the signal current to the succeeding stages of the system, and also the utilization of the series connected filaments to establish a potential difference between the cathode of the detector and that of the controlled amplifier.

 Plaintiff confined the consideration of its expert Langley to Fig. 1 of the patent in suit, as being the only arrangement shown approximating the automatic volume control circuits of the three receivers alleged to infringe herein.

 Plaintiff's expert Langley says that the invention of the Wheeler patent in suit consists of three following features or points:

 First, an arrangement by which the anode of a detector tube is maintained normally negative relative to the cathodes of the amplifier ...

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