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The record as finally made in the suit against the General Electric Company does not greatly differ from that in the Cutler-Hammer Company Case, except in such respects as the varying structures of the different defendants render appropriate. The Cutler-Hammer magnet was held not to infringe, assuming validity in the patents; in the General Electric proceeding, validity was necessarily assumed, because of the decision of this court as to Magnet H. After appeal taken, however, the General Electric Company moved here to reopen the case, in order that the District Court might reconsider the whole cause, alleging that the new proofs, first shown upon the hearing for supplementary injunction, swept away the ground of decision as to Magnet H, and rendered unjust adherence to the judgments of this court and the court below in respect of said Magnet H. This application for reopening was heard with the appeals above specified.

Alfred Wilkinson, of New York City (Emerson R. Newell, of New York City, of counsel), for Sundh Electric Co.

W. Clyde Jones and Arthur B. Seibold, both of Chicago, Ill. (Everett N. Curtis, of Boston, Mass., of counsel), for Cutler-Hammer Co.

Frederick P. Fish and Charles Neave, both of New York City, and Albert G. Davis, of Schenectady, N. Y., for General Electric Co.

Before COXE, WARD, and HOUGH, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above). [1] The claims in suit are printed in 198 Fed. 117, and 235 Fed. 710, and the opinions containing them fully describe the type of apparatus under consideration, its purpose and function. When (in 204 Fed. 277, 122 C. C. A. 475) the General Electric Case was here before, we felt it impossible to deal with the matters in issue, otherwise than to consider the apparent weight of evidence (largely opinion) relating to the very technical application of an abstruse science. Even without reference to the Cutler-Hammer record, it is now plain that the points then deemed obscure and difficult have been greatly elucidated by testimony now for the first time laid before us. Thus Ihlder, the patentee, whose application had been promoted contemporaneously with that of Lindquist and by the same solicitor, did not testify upon the original hearing, and we criticized his absence. 204 Fed. 278, 122 C. C. A. 475. This omission has been more than supplied by the evidence of Lindquist himself.

Again, it was held below (198 Fed. 123) that it would be "practically impossible to make an operative device" from the teachings of the Schuckert German patent, and we substantially accepted this finding upon the evidence as it then existed (204 Fed. 280, 122 C. C. A. 475). It now appears that one of plaintiff's own witnesses constructed a Schuckert magnet and testified concerning his handiwork that it did not chatter with no load, began to chątter at 45 pounds, and was released between 65 and 75.

The patent to Scott (No. 639,447) was in evidence on the first appeal, and was destructively criticized by plaintiff's witnesses and not referred to in any opinion rendered until 235 Fed. 712, where it is erroneously said to have been “fully considered” by both courts As matter of fact it was viewed as a paper patent, and plaintiff's counsel greatly emphasized the statement (then undoubted) that defendant had neither produced a Scott device, nor shown to the court that it covered a working and workable apparatus. It is now admitted that the so-called Scott-Lamme magnet went into extensive and successful use for years, and we have before us an actual apparatus which has practically demonstrated its value.

Research since the first appeal has also revealed a French patent (No. 322,254) antedating Lindquist and describing a magnet operated or actuated by a two-wire current; and finally it now appears what is the relation in the mind of the patentee himself between his own (so-called) senior and junior patents. Speculation is no longer necessary as to why two applications were filed.

Considering the nature and extent of the foregoing new matter, of which a considerable part appears also in the Cutler-Hammer record, it seems advisable to restate the construction of the patent made upon an incomplete record, as preface to a statement of changes of view produced by new evidence, and to do this before consideration of the motion of General Electric Company to reopen the whole case.

The object of Mr. Lindquist's invention, as plainly stated in his specification, was to hold an armature in position with an alternating current by means of a “substantially constant pull” and (as a result) "without chattering." It being obviously unlawful to attempt to patent per se “a substantially constant pull,” the applicant describes his patentable means, which are a “symmetrical” disposition of a "plurality of coils” around a “central axis”; the axis of each coil being "parallel to said central axis.” This symmetrical disposition of coils is illustrated by numerous figures, all revealing coils in pairs except one (Fig. 5), which exhibits three coils only. The currents actuating said coils are shown in both two-wire and three-wire systems; in the former case dephasing of current being accomplished by a resistance for which the patentee asserts no invention in himself. Having disclosed these various embodiments of the means of attaining his result, Lindquist sums the matter up by calling attention to the fact that in all his various styles of apparatus "the axes of the coils are always parallel to, and symmetrically disposed around, the axes of the cylindrical magnet core.” It is thus seen that what the patentee described as his invention, the things upon which he founded the claims descriptive and definitive of that invention, all consist in a symmetrical arrangement of coils, always parallel to and surrounding the axis of the cylindrical core.

It has always been admitted that this description and the claims in suit accurately fit a core cylindrical in the ordinary geometrical sense and symmetrically (i. e., in a circumference) surrounded by coils also cylindrical and having axes parallel to that of the cylindrical core. But such a reading of the claim (it was said) would confine the patentee to a mechanical arrangement, capable of avoidance by infringers, without departing from a co-ordination of parts capable of producing the same electrical and mechanical results as those sought after and attained by Lindquist, and Magnet H was urged as an effort to accomplish exactly this result. The situation, and the nature of the argument is summarized by the subjoined drawings.

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Construing the patent favorably, and believing (upon evidence then produced) that the patentee had accomplished a broadly novel result by new and ingenious means, this court affirmed a holding that the symmetrical or cylindrical arrangement covered by the claims and described in the specification, applied to magnetic symmetry rather than to physical or geometrical relation. No such phrase as “magnetic symmetry” is to be found in the patent. It is a creation of expert witnesses, and was adopted by the court as meaning that “the net pull of all the coils must be constant and in one and the same straight line; and this line must be coincident with the axis of symmetry of the core.” 198 Fed. 118. The court below also said that any arrangement of a core with coils and pole pieces adjacent, which results in a “substantially uniform distribution of symmetrically balanced magnetic forces,” would constitute magnetic symmetry and infringe. 198 Fed. 119. This emphasized the idea of equal forces "balanced” so as to produce a fixed point of application of force. Our view was correctly stated by Hand, J., in the Cutler-Hammer Case by saying that we held:

"That Lindquist was the inventor of a mechanism to hold the armature against the magnet without noise or vibration by means of magnetic forces constantly applied at the point of contact without shifting.”

If the symmetrical arrangement prescribed by the claims was made referable to a "straight line [of pull] * * * coincident with the

axis of symmetry of the core,” it is plain that by the use of Thomson's shade coils, equidistant from the axis of plunger, Magnet H obtained a fixed point of pull in the plunger axis line; that pull never shifted, but it did fluctuate in value, as does the form of Lindquist's device (Fig. 7) in which a two-phase current is derived, by an interposed resistance, from a single-phase.

These considerations produced the finding that Magnet H infringed. In reaching that success, plaintiff, through its expert, deliberately dropped as an immaterial error the construction shown in Fig. 5 of the patent, because that shows (without explanatory comment in the letter-press) a three-wire system with an arrangement of currents certainly productive of a shifting point of pull, with a constant force of pull. Such a resultant could never be "coincident with the axis of symmetry of the core,” or of any reasonable equivalent to a core. To save the patent, this disregard of what seemed not vital at all events was allowed, though not discussed in any of the decisions enumerated. Such practical excision of Fig. 5 is obviously necessary, if the doctrine of “magnetic symmetry" (as recognized in 20+ Fed. 277, 122 C. C. A. 475) is maintainable; for the only possible way of calling all the embodiments of invention pictured and described by Lindquist, “symmetrical” is to refer that word solely to the mechanical or geometrical arrangement of poles and coils around a central axis, which is the very thing sought to be avoided by "magnetic symmetry."

Upon reconsideration of the record in the General Electric Case as it stood prior to the petition for supplementary injunction, we are not disposed to depart from the decision then made; but if this were the first appeal, and all the testimony had been adduced on final hearing, we should unhesitatingly hold that Lindquist's invention was accurately described in the claim allowed him by the German Patent Office, which is definitely and unmistakably restricted to mechanical symmetry.

The additional evidence on which our present opinion rests, has been already summarized, except that given by Lindquist himself. From him we learn that Ihlder's magnet (patent No. 791,423) was not only prior in time, but that the problem set Lindquist (apparently by the common employer of both patentees) was to study Ihlder's actual mechanism, and improve it. The improvement consisted in changing the mode of construction, by producing pole pieces and contacts from a cylindrical ribbon roll of metal, a method which minimized or avoided what is called “humming," but treated “chattering" just as Ihlder did, except for such suggestions as those of Figs. 5 and 7.1

Upon these appeals we are confronted with the Cutler-Hammer magnet, and Magnets A to G of the General Electric Company, and we shall first consider them without regard to the new proofs above

1 The second patent in suit (764,608) needs no separate mention. While it describes a polygonal, instead of cylindrical, arrangement of parts, the differ. ence is functionally unimportant. The form was adopted solely to cover the ordinary and cheaper laminated construction; and since the patentee clearly contemplated a regular polygon, capable of inscription in a circle, "functional cylindricity" of arrangement was preserved.

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