HILLARD v. FISHER BOOK TYPEWRITER CO.

(Circuit Court, S. D. New York. February 9, 1907.)

1. PATENTS-INVENTION AND INFRINGEMENT-TYPEWRITER ESCAPEMENTS. The Hillard patent, No. 580,281, for improvements in typewriter escapements, the principle of which is the utilization of the carriage-propelling power for the re-engagement of the members of the escapement and the return of the key and typebar to normal position synchronously with the feed of the carriage, was not anticipated, and discloses invention of a high order, and the claims are entitled to a broad construction as limited by the prior art and a liberal application of the doctrine of equivalents, as covering, in a limited sense, and in the particular field of the art to which they relate, a pioneer invention. Claims 30 to 35, inclusive, and 37, 38, and 41, also held infringed.

2. SAME-Validity-SuFFICIENCY OF DESCRIPTION.

It is immaterial whether or not the means for accomplishing a result covered by a patent are illustrated therein, if they are sufficiently described in the specification.

8. SAME-NONUSE OF PARTS.

If a patentee shows a new result to be attained, and means which are new and novel for attaining that result, and the device indicated is operative, his patent is good, even if in subsequently applying it he varies the means employed by substituting equivalents.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 49.]

In Equity. Suit to restrain alleged infringement of claims 30 to 35, inclusive, and claims 37, 38, and 41, of United States letters patent No. 580,281, dated April 6, 1897, to Frederic W. Hillard, for new and useful improvements in typewriter escapements, and for an accounting. Kerr, Page & Cooper (Thomas B. Kerr and John C. Kerr, of counsel), for complainant.

Philip T. Dodge (D. Walter Brown, of counsel), for defendant.

RAY, District Judge. The patent in suit, No. 580,281, to Frederic W. Hillard, issued April 6, 1897, application filed January 9, 1893, for new and useful improvements in typewriter escapements, contains 42 claims, 9 only of which are in issue; but these cover an invention, if it be that, which has gone into general use, commanded attention and respect, and forced a confession of its utility even from the defendants' experts in this litigation. That its introduction into the manufacture of typewriting machines wrought a great improvement in speed, neatness of work, and ease and accuracy of operation cannot be successfully controverted. The defendant, however, contends that a result cannot be patented, which contention is true, as the means for producing the desired result is what are patentable. And hence is presented the questions whether complainant's patent discloses patentable invention, in view of the prior art, the scope of that invention, and whether or not defendant infringes if invention is disclosed. Patentable invention is not, however, denied. Infringement is. The defendant says:

"This sult is an attempt by the patentee of a machine to hold tributary to his patent every other machine in the same art which attains the same me chanical result, however much the constructions and modes of operation of such other machines differ from his. It is a settled principle of patent law that a result cannot be patented, but the complainant here attempts to ac

complish the same end, by the contention that his patent covers every 'combination of mechanical parts in a typewriter which accomplishes the same result as is accomplished by his patented combination, however greatly the elements of the combinations in other machines differ in construction and mode of operation from the elements of his combination."

Defendant also says:

"But the only issue in the suit is whether this patentee, and with the prior art as it is, can broadly cover every combination in a typewriter of a carriage and carriage-propelling power, and escapement and finger keys, wherein the carriage propelling power assists in returning the escapement to normal position and in lifting a finger key after the key has been depressed, without regard to the construction and mode of operation of the elements of such combination."

And it may be well to insert here the grounds of defense as stated. by the defendant:

"(1) Noninfringement, and that from a time prior to the grant of the patent to complainant the defendant has manufactured and sold, under patents granted to and inventions owned by said defendant, the typewriter escapement and machines for which it is now sued.

"(2) That, if the claims sued on are expanded so as to cover defendant's construction, then the claims are anticipated by complainant's prior patents and by the prior art.

"(3) That the application upon which the patent in suit was granted was unwarrantably expanded in the Patent Office to cover inventions not fairly within the scope of the said application as filed.

"(4) That complainant's cause of action, if any there ever was, is defeated by reason of his laches in not bringing suit against this defendant for many years after complainant well knew defendant was manufacturing the very identical machines and escapements upon which he finally brought suit."

If the defendant has manufactured and sold the typewriter escapement covered by the Hillard patent in suit, contained in typewriters or otherwise, under patents granted to, and under inventions owned by, the defendant, it has been done since the complainant made his invention and filed his application for his patent, and has been done without the consent or acquiescence of the complainant or of his licensees or agents, and has been in violation of his rights, if any. No prior patent covers the Hillard invention.

As to the defense of laches, I do not find any evidence in the case that will justify the charge of unreasonable delay in bringing suit; clearly none that he has unreasonably delayed suit after knowledge of defendant's acts. I have carefully examined the proceedings in the Patent Office in reference to the claims of this patent while it was there under consideration, and am decidedly of the opinion that the application, or claims, was not improperly or unwarrantably expanded. What was done was more to "separate wheat from chaff" and mold into proper form the real claims and invention disclosed in the original claims and specifications. I do not consider it necessary to travel over the route followed by the original application and point out the modifications and changes. The history would be too long. The patentee, Hillard, a most competent and skilled man of experience in typewriter construction and needs, and also a person of integrity, in the specifications, says:

“My invention is an improvement in typewriter escapements; its aims being to attain a uniform and certain feed at high speed by controlling the moment

of release of the paper-platen, to avoid the blurring incident to movement of the paper at the instant of printing, whether in feeding or by reason of irregular action of the machine, and to secure an escapement which by its action polishes its contacting surfaces. An important feature of my invention consists in an escapement comprising two engaging members; which are disengaged and re-engaged to effect the spacing, in which the spaced memberthat is, the member of the escapement which moves forward step by step with the paper-platen as the paper is fed-is also movable transversely with respect to the other member of the escapement to effect the step by step movement in the spacing. Both members may be movable transversely with respect to each other, as in the forms shown in Figures 1 to 9 and 15 to 20, inclusive, of the accompanying drawings, or the spaced member may be alone transversely movable; the other member being stationary, as in the form shown in Figs. 10 to 14, inclusive.

"My invention also comprises, broadly, means for bringing the carriagepropelling power into action with the key while the key is depressed, and for thereby employing the force of the propelling power to aid in lifting the key and in re-engaging the disengaged members in the escapement and in restoring the printing member to normal position synchronously and in unison with the feed of the paper-carriage.

"In its narrower aspect my invention consists in the various specific forms of escapement hereinafter described and claimed."

It will be seen that he first points out the aims and objects to be attained, and which had not before been attained, and then generally the improved means to be employed in attaining these ends and purposes. He then goes into detail in describing these mechanical means aided by extensive drawings shown in Figs. 1 to 20, inclusive. These details and drawings cannot be reproduced here. After and in describing certain means he says, among other things:

"The universal bar will thus be lifted, carrying with it the key and drawing down the type-bar, which is attached to the key-lever by its connecting-wire. This movement cannot be effected if the key is held down, but the effect of the mainspring will be to give an upward impulse to the key, which will cause the operator to remove his finger. This I call a 'repulser effect.' I have shown and described what I designate as a 'repulser,' and have claimed it broadly in my patent No. 577,982, dated March 2, 1897. The repulser effect will be felt by the operator at a moment not later than the instant of actual printing if the position of screw 13 is adjusted to throw the rack onto the spacing-dog at or before the instant of printing. The advantage of so timing the impulse is that the operator will never hold a key down after the type has struck the paper once, and the type therefore will not rebound and print supernumerary impres sions or 'ghosts.' This impulse on the key and type-bar is referred to in the claims, where it is specified that one or both of them are started toward normal position. * * In the constructions which I show in this application, excepting Figs. 10 to 14, the mainspring performs the functions mentioned by drawing the carriage forward after its disengagement from the detaining-dog during the stroke on the key, and before the rack comes into collision with the spacing-dog, and then it acts as a repulser by imparting an impulse through the spacing-dog to the key, by which the operator is notified that the key has been depressed sufficiently for printing and by which he is assisted in lifting his finger in time to avoid blurring and double impressions in the print.

"During the depression of the key, the spacing-dog, 8, which normally engages with the rack, 14, is disengaged from the rack, and the detaining-dog, 9, engaged therewith, and the spacing-dog, 8, is cammed backward, as above described, by the longitudinal arm, 11, pressing on the support, 7. As the key is still further depressed, the screw, 13, engages with the rack, 14, and swings the rack off from the detaining-dog, 9, and into the path of the spacing-dog, 8. The carriage will then be fed forward by the mainspring until the face of the rack-tooth comes into engagement with the spacing-dog. The forward feed

of the carriage will then be checked so long as the key is held down, but the pull of the mainspring still tends to feed the carriage forward. But the mainspring can then only feed the carriage forward by lifting the longitudinal arm, 11, on the dog, 8, and by thereby returning the rocker-frame to normal position and lifting the key. Hence the mainspring tends to repulse the key and notify the operator as soon as the rack comes into collision with the spacing-dog, 8; but, in addition to this novel repulser function which is performed by the mainspring, I have also provided means for retracting the carriage and for holding it stationary while the key is depressed and the type held against the paper, so that if the operator fails to heed the signal and does not lift his finger soon enough to avoid blurring in the print, but, on the contrary, continues to depress the key, he will simply retract the carriage in case a legato blow has been struck and the carriage spaced too far forward, and he will then hold the carriage stationary so long as the type-key is depressed and held against the paper. On the other hand, if a staccato blow is struck, the carriage will, as above stated, be fed forward during the stroke through only a portion of the distance which it would traverse if a legato blow were struck. Hence, in this case, if the operator fails to heed the repulser-signal, and does not lift his finger in time to avoid the blurring in the print, the carriage will simply be stopped in its advanced position and held stationary until the key is released. * In the modification shown in Figs. 15, 16, and 17 the escapement is the same as that of Figs. 1 to 5, except that the locking device is different and differently located, the pushing-point that contacts with the inner or front face of the rack is higher than that which contacts with the outer face instead of being lower, as in Figs. 1 to 5, and the rack is not supported on a friction-joint and is normally in mesh with the detaining-dog instead of the spacing-dog. With this device the rack is not necessarily released from the detaining-dog until the key is released. The rack, 14d, is normally in mesh with the detaining-dog, 9d. During the depression of the key the parts pass through the position of Fig. 16 into the position of Fig. 17. In this position the rack may be entirely or only partially released from the detaining-dog. If the rack is thrown entirely from the detaining-dog and onto the reciprocating dog, the mainspring will tend to lift the key just as heretofore shown respecting Figs. 1 to 5 and to return the type into the basket and to re-engage the disengaged members in the escapement. * Figs. 18, 19, and 20 show a device similar to that of Figs. 15, 16, and 17, except that there is no locking device for the rack, 14e, and therefore the screw, 13e, must be so adjusted as certainly to push the rack onto the spacing-dog during the downstroke of the key. During the down stroke the parts pass from the position of Fig. 18 through that of 19 to that of 20. The repulser effect is immediately transmitted from the mainspring to the key, the operator lifts his finger, and as the rocker-frame is carried back by the spring, 6e, the rack moves off from the spacing and onto the detaining dog; but the carriage is not released until the key is released.

* *

"The operation of the parts shown in Figs. 18 to 20 is as follows: The rack, 14e, is normally in engagement with the detaining-dog, 9e, and disengaged from the spacing-dog, Se. During the depression of a key the spacing-dog is cammed backward or to the right by the camming-arm, 11e, and simultaneously the rack is pushed by the screw, 13e, off from the detaining-dog onto the spacing-dog. As soon as the rack has been disengaged from the detaining-dog it is pulled forward or to the left by the mainspring until it comes into collision with the face of the spacing-dog. Then, if the operator still continues, to depress the key, he will overcome the pull of the mainspring and retract the carriage, with the dog, to the right, until the dog comes against the screw, which limits its vibration in that direction. Upon release of the key the mainspring, acting through the rack and the spacing-dog on the camming-arm, 11e, assists the spring, 6e, in returning the rocker-frame to its normal position."

Hillard has referred to his prior patents, and distinguishes or differentiates them from the patent in suit. The swinging rack form of buckle-joint escapement described in the patent in suit was reserved. when patent No. 554,874 was granted. It is the second improvement

described or referred to in the words commencing "My invention also comprises, broadly, means for bringing the carriage-propelling power," etc., already quoted, that is the subject-matter of the claims involved in this suit. In complainant's former patent he accomplished the purpose, or one main purpose, of the patent in suit by a separate device, not by the mainspring which was there used for feeding the carriage only. This invention also cams the carriage back when a long or slow blow is struck, and that was done in prior patent No. 554,874, but in a different way and by somewhat different means. This invention also uses the mainspring to re-engage the members of the escapement and restore the printing member and the finger key to their normal position as well as to move the carriage. In the prior Hillard patents the following functions are not performed by the mainspring, as I can see: (1) Producing the repulsion of the finger key, (2) camming back the carriage unaided by a separate cam, (3) re-engaging the escapement members, and (4) restoring the type-bar and the finger key to normal position by its own force. For these, and other reasons, it seems to me that the patent in suit is not anticipated by Hillard's prior patents. I do not think the patent in suit is limited to the buckle joint or to the use of the other improvements of the patent with it. It may be that the improvements of the claims in suit are illustrated in the drawings of the patent in connection with the buckle-joint escapement only, but that is in no way conclusive that they are so limited. The patentee says, as already quoted:

"My invention also comprises, broadly, means for," etc. "I have shown and described in this specification several distinct but co-operating improvements in typewriter escapements. While these improvements are all mutually beneficial, they are not dependent on one another, and either one may be employed without the others," etc.,

It seems to me that this is quite satisfactory and conclusive on this subject. The fact that the alleged improvements are illustrated in the drawings as connected with the buckle-joint escapement is in no wise conclusive, as it is only one mode of using them, and we have the express statement that they are not dependent, and that any one can be employed without the others, and this applies to their use in connection with the buckle-joint escapement.

In claim 41 we have in combination: (1) The key, or the ordinary letter or space key, by pressing which the operator of the machine does the printing and spacing. This pressure of the key also operates the escapement. (2) The carriage-propelling power, meaning the mainspring or any equivalent device; anything, I think, that constantly draws the carriage forward from its starting point. (3) An escapement, or toothed rack on or connected with the carriage, which is the rack member, connected with the rocking-frames, or dog-member, which is operated by the key and which operates with the rack member to con trol the forward movement of the carriage. That claim reads as follows:

"(41) In a typewriter, the combination of a key, carriage-propelling power, an escapement, and means for bringing the propelling power into action with the escapement to lift the key when the key is depressed, substantially as described."