The opinion of the court was delivered by: KNIGHT
This is a suit for infringement of the patent to Edward L. Barrett No. 1,924,082, issued to plaintiff as assignee on August 28, 1933, on application filed January 3, 1933, claimed to cover a vibrator used in a "B" battery eliminator for radio receiving sets. Title is admitted. The manufacture and sale of certain of the accused devices are also admitted. The issues raised are validity and infringement of the patent and whether punitive damages should be awarded.
Plaintiff is a manufacturer of radio apparatus and supplies, including vibrators claimed to be made in accordance with the patent in suit. The defendant is a subsidiary of General Motors Company, and manufactures and sells, among other items, "B" eliminator vibrators for use in automobile radio receivers.
Automobile radio receiving sets require that electrical current be supplied to them at two different voltages. These two supplies of current are commonly referred to as "A" and "B" supplies. The "A" supply is a low voltage current, and for this purpose a low voltage source may be either alternating or direct current. For the "B" supply however a source of comparatively high voltage direct current of between 180 and 250 volts must be had.
In an automobile as well as in a house radio set where only battery current is available, the user of a radio set, before the introduction of the so-called vibrator, was compelled to buy separate batteries for the two separate voltages. Until recent years several methods were used to supply the second voltage. One method was the use of a separate set of batteries. Objections to this method are obvious. The batteries were expensive and required frequent renewal. They were bulky and heavy, and were impractical for use in the limited space available for installation in automobiles. Another form of supply unit was the motor generator, in which current from the car battery was used to operate a small motor to operate a rotating electric motor. It, likewise, was expensive to construct, bulky and heavy. It was inefficient and imposed a heavy drain on the storage battery. There was also the so-called dynamotor which operated on principles similar to those of the motor generator, and was subject to the same objections.
The storage battery of the car, the source of the current for a car radio set, is a conventional six volt battery. This voltage varies, having approximate range from 3 to 9 volts. The effect of this variation of the voltage is shown in the use of a vibrator in a buzzer, one particularly referred to herein being known as the Edward buzzer. Where there is a decrease in the battery voltage from 30 to 40 per cent., the pull of the magnet may be insufficient to open the contacts. This results in burning these contacts. Where the voltage is beyond its normal value, an abnormally strong pulling force is evidenced on the armature, and this causes irregular movement and chattering, and also burns the surface of the contacts. Road shock and general unevenness of travel by motor, likewise, destroy uniform effectiveness of a vibrator such as the Edward buzzer.
A "B" battery eliminator, as a whole, includes as major elements, a transformer, a rectifier and vibrator. The Barrett patent in suit is claimed to cover only the vibrator. The function of the transformer is to change the low voltage direct current supplied by the low voltage storage battery to a high voltage alternating current. The function of the vibrator is to break up the steady direct current from the car storage battery into a rapid succession of impulses of current in the primary winding of the transformer. The high potential alternating current is changed to direct current of similar potentiality by the rectifier. It is claimed that the combination of the elements shown in the Barrett patent makes possible a smooth, rhythmic circuit interruption despite abnormally high or low voltage, despite any changes in position and consequent variation in gravital effect, and despite vehicle vibration. The general combination of major elements which were included in the vibrator in the patent in suit and by which these results are obtained are the so-called reed (an elongated, thin, flat, metallic, flexible, resilient element); a side contact mounting; a magnet in such a position that the armature on the end of the reed swings past the pole piece of the magnet in close proximity but not in contact therewith.
The patent in suit is entitled "Motor Actuated Circuit-Controlling Means." The patent states that the invention relates generally to a circuit controlling means and has particular reference to means of a nature which is suited for use in connection with a direct current transformer system "intended to replace the 'B' battery which customarily supplies direct current to one circuit of a radio receiving set." Below are shown the patent drawings, Figure 1 illustrating the vibrator, Figure 2 illustrating the circuit in which the vibrator is used. Figure 1 shows a magnet with active pole faces 39. A vibrating reed 29, like the side contacts 27 and 28, is described as an elongated flat resilient member rigidly secured to the base. The reed is "arranged for swinging movement to close a circuit either through the contact 27 or contact 28." It shows spacing fingers 44, having their ends bent outwardly to serve as spacers and limiting abutments between the contacts 27 and 28. They are rigidly secured together by spacers 42 and 43. A vibrating reed 29, normally straight and untensioned, is supported substantially intermediate the contacts 27 and 28, such reed extending beyond the contacts 27 and 28 to a point substantially adjacent to the plane of the pole pieces 39 and carrying an armature 51 in an off-center position in relation to the pole faces and having a clearance therefrom as described in the specifications preferably from .005 to .010 of an inch.
[See Illustration in Original]
The operation of this device may be thus described in relation to Figure 2. When the switch 54 is closed, the electromagnet 34 is energized through a circuit from a battery 24 through lead 22, center tap 13, one side of the primary winding 11, wire 26, lead 53, electromagnet winding 36, leads 52 and 31 to the battery. The electromagnet, thus energized, tends to draw the armature 51 from its eccentric position to a central position with respect to the two pole fixtures. This closes the circuit through contacts 28 and 29 causing a surge of current in one section of the primary winding 11 through a circuit from the battery comprising lead 22, center tap 13, primary winding 11, lead 26, contact 28, contact 29, and leads 30 and 31. Closing this contact shunts out the electromagnet. Upon the de-energization of the magnet, the resilience of the reed reverses the swing of the reed and contact is established between the reed or contact 29 and contact 27 to establish a different circuit through contacts 29 and 27, wire 25, the other section of the primary winding 11, center tap 13, lead 22, battery 24 and leads 31 and 30. Meanwhile the electromagnet has again become energized through breaking of the circuits through contacts 28 and 29 and again exercises a pull on the armature to swing the reed to contact 28 and the cycle is repeated with exceeding rapidity, alternately energizing the sections of the primary winding and producing a corresponding current in the secondary winding, which, after it passes through the rectifier, is conveyed to the filter system as direct current of high potential. The disclosures of the Barrett patent satisfy the statutory requirements as to sufficiency of description. There is no question as to the operability of this vibrator. There is no question as to the practical value of the Barrett device or its utility.
The evidence discloses that a large number of the Barrett vibrators have been sold by the plaintiff company. These have been sold in separate units and as parts of complete "B" eliminator apparatus. These sales began on or about August 5, 1932. Since that date the physical design of the vibrator has been changed and certain improvements have been made, but the essential characteristics have been retained. The industry has increased very rapidly from the year 1932 to the present time. A large increase in sales of radio ets for automobiles has resulted from the use of a "B" battery eliminator in connection with automobile radios. There is not any automobile radio used today which does not have such an eliminator.
The first action on the Barrett application was taken by the Patent Office on April 8, 1933. Subsequent amendments were shortly thereafter acted upon, and the application was finally allowed July 20, 1933. Prior to the latter date the Barrett vibrators had been marked with the notice "Patent Pending." Trico Products Corp. v. Apco-Mossberg Corp., 1 Cir., 45 F.2d 594. The fact that others skilled in the art may not have devised its equivalent is evidence of patentability. If this patent is valid, it is a pioneer in the field of radio. Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 18 S. Ct. 707, 42 L. Ed. 1136. It is claimed that the defendant's vibrators clearly embody the combination of the patent in suit. Three forms of defendant's vibrators shown below are the three forms of vibrators charged to be copies of three corresponding forms of vibrators marketed by the plaintiff.
These drawings are taken from plaintiff's brief and are used in preference to the exhibits from which they are taken for reasons of simplicity and clarity:
[See Illustration in Original]
In the record the defendant's vibrators are referred to as plaintiff's Exhibits A, B, and C. As to Exhibit A, the proofs show that none of these have been made or sold. Manufacture, sale and use of vibrators substantially identical with Exhibits B and C, after the issuance of the patent in suit and prior to the filing of the Bill of Complaint, are admitted. In addition we also have another exhibit, defendant's Exhibit YY, admitted to have been made by the defendant. Let us examine these structures, Exhibits "B," "C" and "YY", in comparison with the plaintiff's patent.
The three elements of the basic combination of the Barrett patent are found in plaintiff's Exhibit B. This shows an elongated, flat, resilient vibrator reed. It is sufficiently strong to support the armature without distortion by gravity or road shock. It has sufficient resiliency and hardness to give a natural mechanical vibration of relatively high frequency, to contribute to the rebound movement in the course of its vibration and to insure full movement on return stroke. It has a resilient end portion extending a substantial distance beyond the side contacts, thus allowing continued movement at the free end of the reed after one of the side contacts has been engaged. This exhibit shows a side contact arrangement substantially identical with the Barrett patent, Figure 1. It has a set of double contact points 50-D carried by the reed 29-D. They are disposed in normally open relation with respect to co-operating contacts 48-D and 49-D on opposite sides of the reed. These side contact points are carried by resilient and flexible support arms, 27-D and 28-D, with the outer ends of these secured at one end of the frame, 32-D. The spacing between the side contacts 48-D and 49-D, with respect to the reed contact, is adjusted by means of fixed fingers, 44-D. The relationship of these parts is described in defendant's patent application No. 699,522, and there shown to be comparable with the relationship of corresponding parts of plaintiff's patent.Exhibit B bears a second set of cooperating contact points. Functionally this secondary set serves a ...