[3] Of course, a claim of a patent cannot be broadened by the specification, but in order to determine what the patentee meant by the word "tympanum" in the claims 29 and 30 recourse should be had to the specification, because the patentee presumably knew the description he intended and may not have known how the word was defined in the dictionary.

Mr. Himmer, defendant's witness, would not say that the defendant's structure (Exhibit F) was a duplication of the device of the Maxwell patent, No. 216,051, but said that it illustrated the principle of the Maxwell patent.

The Maxwell patent, No. 216,051, is for an improvement in mechanical telephones, and Fig. 1 shows, but the patent does not describe, with reference to that figure, a mechanical telephone that had sounding boards. The patentee said that his invention claimed in said patent "relates to the construction of a vibratory apparatus of quite different form and of a much better result from the one herein before described." It is the improvement which it is claimed defendant is making. The improvement which was the invention of the patent consisted of a couple of membranes of sheepskin, which the patentee said had to be "stretched and held taut by means of the button e on the wire T; and but for the button i on the wire outside of the box the vibrators would collapse when the wire was relaxed," and he put them in a box which had sound deadening material in it. Evidently he had discovered that there was not enough energy to make the sounding board resound, and therefore wanted to substitute for that a device with a resonant chamber.

Maxwell also says: "There is in it no more of wood, which is itself capable of a high degree of vibration, than enough for a frame to hold the vibrators in position and proper shape, and that it is therefore very efficient for the purpose of condensing and strengthening air vibrations for transmission."

Clearly the defendant is not using in its structure the prior art because it chose for its comparison, as nearest in the prior art, the device of the Maxwell patent, and to my mind it is impossible to say that defendant is using that device even in principle.

I am unable to see that the claims in suit are limited beyond the plain meaning of their language, as I have hereinbefore construed the same, by the rejection and cancellation of claim 19, because the combination of claim 29 was not the subject-matter of

claim 19. The subject-matter of claim 19 was never abandoned but was insisted upon and finally allowed. In this patent in suit claims covering the tympanum and its supporting structure limited to a mechanical sound reproducer are found, and in the divisional application which was filed (patent No. 1,271,529) are found the broad claims for the tympanum and its supporting structure as an acoustic device; claim 12 being the same in substance as said original claim 19, except that it is limited to "a machine for directly regenerating sound from a record of the same."

The effect of the amendment of March 4, 1916, was to limit the claims to a device in which there is a rigid support for the peripheral edge of the tympanum. "The peripheral edge of the tympanum," as used in said claims, means, as we have herein before shown, not the edge of the vibratory cone, but the peripheral edge of the interposed yielding rim 1. The claims cannot be asserted by the plaintiff to cover a device in which there is not such rigid support for the tympanum.

In the device of the patent in suit the supporting rim is turned out. In the defendant's structure (Exhibit 3) it is turned in, and the rigid support is found in both instances at the periphery of the supporting rim. The words of the claim "and freely exposed to unconfined air" are used to emphasize the fact that the device of the patent in suit has no horn or amplifying chamber. The patentee is not estopped by the file history to say that the defendant's device embodies a tympanum freely exposed to unconfined air, nor are the claims limited by the prior art as shown in patents No. 562,753 to Amet, No. 822,024 to Shanks and No. 986,477 to Lumiere, because while these patents all showed attempts to produce self-sustaining sound waves on unconfined air, without the interposition of a sound box or amplifying horn, none of them suggested the idea of accomplishing that purpose by means of a cone of the character described, and actuated in the manner described and claimed in the patent in suit. In the defendant's structure there is neither a sound box nor horn.

The second element, "a sound-vibrated element," is found in the defendant's structure in the vibrating armature of an electrically driven device.

The third element, "vibration transmission means connecting said element and said tympanum and arranged to impart to the tympanum vibrations which are relatively

which encircles said conical portion, and which is (3) rigidly supported, said conical portion being freely exposed on all sides to unconfined air, and being of sufficient area to produce self-sustaining sound waves in the surrounding air when vibrated, substantially as described.

The tympanum is described in the specification at page 2, lines 72-79, as follows: ."The tympanum L, which forms the subject of the present case, is constructed of light, vibratile material and has an annular plane peripheral portion or supporting rim 1, the outer edge of which is tightly gripped and rigidly supported between the rings K, K', and a central conical portion 1' rising from the inner edge of the said rim 1."

The specifications further point out that if a satisfactory regeneration of sound is to be had, the diameter of the whole tympanum should exceed nine inches and the base of the central conical portion should exceed in area one-half of the effective area of the entire tympanum. The diameter of the base of the conical portion should be at least eight-tenths of the diameter of the tympanum. If the tympanum be nine inches in diameter of the base, the conical portion will be 7.2 inches.

As has been shown in the discussion under the prior patent, No. 1,271,527, p. 3, line 124, to page 4, line 2, the conical portion 1' of the tympanum is the active resounding portion, and the rings K, K' constitute a rigid mechanical support for the outer edge of the supporting rim 1 and "the plane peripheral portion 1 of the tympanum maintains the place of the conical active portion of the tympanum and yields sufficiently to permit the required motion of the conical portion resisting however displacement of the conical portion in just that degree necessary to maintain the form and neutral position of the active conical portion.

Defendant contends that its device does not infringe any claim of the patent in suit, in that it does not employ a tympanum rigidly supported at its periphery, but that its tympanum has a floating or vibratory periphery, and again contends that its device is constructed on the principle of the Maxwell patent. These questions have been considered in the discussion of the infringement of the prior patent in suit.

Clearly the word "tympanum" as used in the claims includes the conical portion L and the supporting rim 1, and in the defendant's device the inturned supporting rim, interposed between the active conical portion and the defendant's rigid supporting ring,

flexibly supports the active conical portion and is the corresponding element to the flat supporting rim of the patent in suit, of which it is a mechanical equivalent.

Defendant further contends that its cone support for the tympanum forms a wall of a resonance chamber. With this contention I cannot agree because Mr. Himmer, called on behalf of the defendant, admitted that the resonance of the chamber was substantially the same as the resonance of the cone itself practically below the audible spectrum; therefore the device will not resound to any note within that spectrum and thereby disturb the correct reproduction of the words and music.

The entire device is made nonresonant for all frequencies of the audible spectrum. The defendant's device is larger than the device of the patent in suit, but the proportion seems to have been preserved. The three elements are thus found in the defendant's device.

Patent No. 1,271,529 is valid and infringed.

A decree may be entered in favor of the plaintiff against the defendant, with costs and the usual order of reference.

Settle decree on notice.

In Admiralty. Libel by the Prince Line, Limited, as owner of the steamship Gaelic Prince, against the steamship Katrina Luckenbach, her engines, boilers, etc., the Luckenbach Steamship Company, Inc., claimant, wherein the United States was impleaded. Libel dismissed for want of jurisdiction.

Kirlin, Woolsey, Hickox & Keating, of New York City (J. Parker Kirlin, John M. Woolsey, L. deGrove Potter, and E. S. Murphy, all of New York City, of counsel), for libelants.

Carter & Carter, of New York City (Peter Carter, of New York City, of counsel), for claimant of the Katrina Luckenbach.

Supreme Court rule No. 19 and its substantial counterpart, rule 18. Such rule, however, is not applicable to public ships. The Exchange, 7 Cranch, 116, 3 L. Ed. 287; U. S. v. Cornell Steamboat Co., 26 S. Ct. 648, 202 U. S. 184, 190, 50 L. Ed. 987.

Now, there is no question but that the Katrina Luckenbach was in August, 1918, a public ship, and under the terms of the vessel's requisition her master, officers, and crew had become the immediate employees and agents of the United States, with all the rights and duties as such, the vessel passing completely in to the possession, and the master, officers, and crew absolutely under the control of the United States. And as was said by Mr. Justice Holmes in the Western Maid decision: "The personality of a public vessel is merged in that of the sovereign." It would seem, therefore, that any liability incurred by the Katrina Luckenbach, and arising from her own necessities, or rendered at the request of her master, would be the obligation of the United States, and is payable, if at all, only in the manner and method prescribed by Congress. Since the Western Maid decision, I take it, no fiction of the admiralty can require privately owned property to stand as security for a public indebtedness. Such would be the result, if I should not hold the libeled vessel.

As the United States likewise disputed the court's jurisdiction to pass upon the merits of the controversy, I must dismiss the libel.

1. Banks and banking 2882, New, vol. 11A Key-No. Series-Indictment for defrauding and misapplying assets of national bank, not alleged to be federal reserve bank or member bank, insufficient (Rev. St. § 5209, as amended by Act Sept. 26, 1918 [Comp. St. Ann. Supp. 1919, § 9772]; Act Dec. 23, 1913 [Comp. St. §§ 9785-9805]).

Under Rev. St. § 5209, as amended by Act Sept. 26, 1918 (Comp. St. Ann. Supp. 1919, § 9772), indictment for defrauding and misapplying money and credits of a national bank, not

alleged to be a federal reserve bank or member bank, is insufficient; national bank not being ipso facto a federal reserve bank or member bank under Act Dec. 23, 1913 (Comp. St. §§ 9785-9805).

2. Indictment and information 59.

It must judicially appear from indictment itself that an offense has been committed.

Statute of limitations does not run while accused is fugitive from justice.

Charles J. Dooley, impleaded with James E. Stiles, was indicted for defrauding and al bank, and demurred to the indictment. misapplying moneys and credits of a nationDemurrer sustained, and defendant discharged.

William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Asst. U. S. Atty., of Brooklyn, N. Y., and Guy O. Walser, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Louis J. Castellano, of Brooklyn, N. Y., for defendants.

MOSCOWITZ, District Judge. On November 9, 1922, the grand jury presented an indictment containing fifteen counts, which charged Charles J. Dooley, defendant, aided and abetted by one James E. Stiles, while cashier and director of the First National Bank of Rockville Center, a national banking association, created under the laws of the United States of America, with defrauding and misapplying certain moneys and credits of the said bank.

[1] The indictment is brought under section 5209 of the Revised Statutes, as amended by the Act of September 26, 1918, 40 Stat. 967 (Comp. St. Ann. Supp. 1919, § 9772). The defendant interposes a demurrer claiming that the indictment is insufficient for failure to state that the First National Bank of Rockville Center is a federal reserve bank or member bank.

Old section 5209, passed for the protection of national banks against the acts which it defined as crimes, was not in force at the time the alleged offenses of which Dooley was indicted are charged to have been committed. It was repealed by the Act of September 26, 1918. Shaw v. United States (C. C. A.) 292 F. 339.

The indictment at bar fails to allege an offense against the federal statute, unless under the Federal Reserve Act any national bank or banking institution is ipso facto a federal reserve bank or member bank. An examination of the federal reserve bank 'clearly shows the contrary.

The act establishing federal reserve banks (38 Stat. L. 251 [Comp. St. §§ 9785 to 9805]) provides that national banks were