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validity thereof and shall not receive a challenge to more than one member at a time."

The acts of congress make no provision for a challenge to the array, and point out no method whereby the question of the disqualification of all the members may be determined in the first instance by any one but the members of the court themselves challenged one by one. It is said that a court-martial is like a jury; that the reviewing officer occupies the place of a judge; that the disqualification of a juror, if not suggested at the trial, is waived, and does not render the verdict void (Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432; Clark v. Van Vrancken, 20 Barb. 281; In re Voorhees, 6 Op. Atty. Gen. 206); and that the judgment of this court-martial ought not to be held void because all its members were incompetent to sit upon it. But in the essentials of the issue the analogy does not hold. does not hold. The question of the qualification of triors. arises in limine. It is to be determined before the trial commences. In the case of a trial by jury, the judge, not the jury, determines the qualifications of the jurors; while in a trial by a court-martial the members of the court must determine their own qualifications, and, if all the members are incompetent to sit in the court at all, how can they be competent to decide that they are either competent or incompetent to act there? Moreover, a jury decides nothing but questions of fact, while the members of a court-martial determine both the law and the facts. This argument by analogy is not persuasive. Indeed, the analogy between the judgment of a court-martial and the judgments of courts composed of disqualified judges is much closer. All the members of this court-martial were disqualified. It was a court of inferior-of limited-jurisdiction. Why should its judgment have more virtue than those of courts of general jurisdiction some of whose judges are incompetent to sit? Yet the general rule, supported by the great weight of authority, is that the judgments of such courts are void, and that neither waiver nor consent can give them validity. Case v. Hoffman, 100 Wis. 314, 356, 75 N. W. 945, 44 L. R. A. 728; Oakley v. Aspinwall, 3 N. Y. 547, 552; Low v. Rice, 8 Johns. 409; Clayton v. Per Dun, 13 Johns. 218; Edwards v. Russell, 21 Wend. 63; People v. Connor, 142 N. Y. 130, 133, 36 N. E. 807; Chambers v. Clearwater, *40 N. Y. 310, 314; Sigourney v. Sibley, 21 Pick. 101, 106, 32 Am. Dec. 248; Gay v. Minot, 3 Cush. 352; Hall v. Thayer, 105 Mass. 219, 224, 7 Am. Rep. 513; Railway Co. v. Summers, 113 Ind. 10, 17, 14 N. E. 733, 3 Am. St. Rep. 616; Ochus v. Sheldon, 12 Fla. 138; Chambers v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676, 678; Templeton v. Giddings (Tex. Sup.) 12 S. W. 851.

The insuperable objection, however, to the jurisdiction of this courtmartial and to the validity of its sentence is that the officer who called it was not only unauthorized, but was positively forbidden by act of congress, to constitute it of the officers of the regular army, to detail these officers to sit upon it; and when these officers were so detailed they were in like manner prohibited from responding to the call and from becoming members of the court. The order convening the court-martial declared that the purpose of its call was "for the

trial of Captain Peter C. Deming, assistant commissary of subsistence U. S. volunteers," and it commanded nine officers of the regular army to meet and sit upon the court. The seventy-seventh article of war prohibited Gen. Shafter, who issued this order, from directing these officers to sit upon a court-martial to try this officer of the volunteer force, and forbade them to do so. The court was therefore illegally constituted. It did not have a single member upon it that the commanding officer had the power to direct to participate in the trial of the petitioner, or that could lawfully do so. "It was necessary to show that the court was legally constituted in order to gain jurisdiction of the persons and offenses of those who were to be tried before it." Mills v. Martin, 19 Johns. 33. "To give effect to its sentences, it must appear affirmatively and unequivocally that the court was legally constituted, that it had jurisdiction, that all the statutory regulations governing its proceedings had been complied with, and that its sentence was conformable to law." Runkle v. U. S., 122 U. S. 556, 7 Sup. Ct. 1141, 30 L. Ed. 1167. In the army of the United States courts-martial derive their power-their jurisdictionfrom the acts of congress. Neither the silence, the consent, nor the agreement of the parties can confer it if it is not granted by the statutes. This court-martial derived no power or jurisdiction from the acts of the congress of the United States, because it was constituted in direct violation of, and not in accordance with, them. It was therefore entirely without jurisdiction to try the petitioner, and its judgment against him was absolutely void.

The judgment below must accordingly be reversed, and the case must be remanded to the circuit court, with directions to issue the writ of habeas corpus, and to proceed in accordance with the views expressed in this opinion; and it is so ordered.

(113 Fed. 652.)

KINLOCH TEL. CO. et al. v. WESTERN ELECTRIC CO.
(Circuit Court of Appeals, Eighth Circuit. February 24, 1902.)
No. 1,640.

1. PATENTS-DEVICE NOT CLAIMED ABANDONED.

Where a patentee has made his claim, he has thereby disclaimed and abandoned to the public all other combinations and improvements that are not mere invasions of the device, combination, or improvement which he claims.

2. SAME-CLAIM SECURES MECHANICAL EQUIVALENTS.

But one who claims and secures à patent for a new machine or combination thereby necessarily claims and secures a patent for every me chanical equivalent of that machine or combination, because, in the light of the patent law, every mechanical equivalent of a device is the same thing as the device itself.

3. SAME-MECHANICAL EQUIVALENTS.

Where form is not the essence of the invention, machines or combinations which are constructed upon the same principle, which have the same mode of operation, and which accomplish the same result by the same or by equivalent mechanical means, are mechanical equivalents, within the meaning of the patent law, although they differ in form or in name.

4. SAME-MECHANICAL EQUIVALENTS.

Shot and wax or other fusible material holding them in perforations in the faces of conducting plates until released by the heat of the plates, produced by a persistent arc between them, so that they will then run down between the plates and form a conducting link, are mechanical equivalents of the mass or plug of fusible material described in patent No. 438,788, when they are used in a potential discharger for the same purpose and perform the same function as that plug.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the Eastern District of Missouri.

Charles C. Bulkley, for appellants.

George P. Barton and De Witt C. Tanner, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge. This is an appeal from a decree which enjoined the defendants, the Kinloch Telephone Company and Samuel M. Kennard, from infringing upon the first claim of letters patent No. 438,788, for a potential discharger, issued October 21, 1890, to Anthony C. White. (C. C.) 111 Fed. 175. This is the claim:

"(1) A potential discharging protector or lightning arrester comprising two conducting plates placed with parallel surfaces closely adjacent to each other, adapted to be connected, respectively, with an electric circuit and the earth, and an interposed thin dielectric, one of the said plates having a plug or mass of easily fusible conducting material embedded in its approximate surface, substantially as hereinbefore described, and for the purposes specified."

The device protected by this claim consists of an upper conducting plate, preferably of carbon, electrically connected with the line to be protected, and provided with a perforation in its lower surface filled with a plug of some easily fusible material or alloy, a lower conducting plate of carbon electrically connected with the earth by wire, and a thin dielectric partition, preferably of mica, slotted in the middle opposite the fusible plug, and securely fastened between, and in contact with, the plates. The purpose of this combination is to protect telephone and other apparatus used in connection with electric currents of low intensity from injury by means of currents of electricity of high potential which occasionally intrude upon telephone and telegraph wires when they are accidentally crossed with electric currents conducting heavy electric and power currents developed under high potential, or when, by induction or a stroke of lightning, atmospheric electricity charges them. The patentee stated the object he sought to attain in his specifications very clearly, in the following

terms:

"The object of my present invention is to provide an improved form of the second element of this system of protection, namely, the lightning arrester or potential discharger, which can be applied with equal facility to either metallic or earth completed circuits; which shall not involve the normal conductive connection of an earth wire to the circuit; which can readily be adjusted to discharge with any given or desired potential; which shall be equally efficient whether the charge coming on the circuit be a transient and instantaneous impulse, as in the case of lightning, or a sustained and protracted impulse, as in the case of a cross with a dynamo circuit operated under any electro-motive force exceeding the minimum to which the appliance is set, and which in the latter event will rapidly and

certainly establish a short circuit to earth, thereby effecting a discharge which is permanently maintained as long as the charge continues, and preventing the said charge, irrespective of the period of its continuance, from causing injury to cable or apparatus."

The combination which White described and claimed accomplishes the purpose for which he constructed it. The conducting plates are located at such a distance apart that the air dielectric in the slot of the partition prevents the legitimate operating currents of the circuits with which the device is connected from leaving those circuits, and they pass on and perform their appropriate work. If, however, a transient charge of electricity of dangerously high potential, due either to lightning, a momentary dynamo cross, or to any other similar accident, intrudes upon the line, this charge passes to the earth by means of a disruptive discharge across the dielectric of air between the plates. If such a charge persists, the sparks of discharge develop into an arc between the plates through which a current passes to the earth. This current heats the plates and fuses the material composing the plug. As this material melts, it runs down into the slot between the plates and forms a conducting link between them. The current then follows this link, the arc is extinguished, the fused metal cools and forms a solid and permanent conductor between the plates, which safely leads the trespassing current to the earth. In this way the legitimate operating currents of the protected lines are repelled by the thin dielectric, and prevented from short-circuiting to the earth through the potential discharger, while both the transient and persisting charges of dangerous intensity are led off the line and to the earth by it, without injury to the telephone or other apparatus connected with the protected lines.

The novelty, utility, and patentability of this combination are conceded. But the decree of the court below is challenged on the ground that the device used by the appellants does not infringe upon the patent to White. The appellants' device consists of two plates of the same character, electrically connected and used in the same way as the conducting plates of White, a silk dielectric partition between them, and two leaden balls or shot secured by wax, one in a perforation in the inner surface of the upper plate, and the other in a hole in the inner surface of the lower plate. The appellants do not claim to escape liability for infringement on account of the substitution of the silk dielectric for the slotted mica partition, because White describes and claims a thin dielectric of any suitable material, and his slotted partition is only the preferable form of that dielectric. The shot secured in the plates by wax discharge the function of White's fusible plug. A transient charge of dangerous intensity produces a disruptive discharge through the interstices in the silk partition. When this discharge continues, forms an arc, and develops sufficient heat, the silk is burned away, the wax is melted, the shot roll down together and form a conducting link between the plates, through which the dangerous current is led to the earth. The arguments advanced in support of the contention that this device of the appellants does not infringe upon that of White are (1) that the patentee, by the terms of his claim and specification, restricted his monopoly to the

use of a "plug or mass of easily fusible conducting material" to constitute the conducting link between the carbon plates, and the defendants. do not use easily fusible material for that purpose, but leaden balls or shot, which cannot be readily fused; and (2) that, when attention is given to the parts which really do the work, the device of the appellants does not perform its function in substantially the same way as the device of White, because the wax, the fusible material of the appellants, is not essential to the operation of their combination, but is a mere means of assembling and holding the parts of the device in its construction, while the fusible material of White is indispensable to the operation of his device.

It is true that the statute requires the inventor to particularly point out and distinctly claim the improvement or discovery which he seeks to secure (Rev. St. § 4888), and that when he has made his claims he has thereby disclaimed and abandoned to the public all other combinations and improvements that are not mere invasions of the device, combination, or improvement which he claims. Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 24 L. Ed. 344; Manufacturing Co. v. Sargent, 117 U. S. 373, 378, 6 Sup. Ct. 931, 29 L. Ed. 950; McClain v. Ortmayer, 141 U. S. 419, 425, 12 Sup. Ct. 76, 35 L. Ed. 8c0; McBride v. Kingman, 97 Fed. 217, 223, 38 C. C. A. 123, 129-130; Building Co. v. Eustis, 65 Fed. 804, 807, 13 C. C. A. 143, 145, 27 U. S. App. 693, 709; Stirrat v. Manufacturing Co., 61 Fed. 980, 984, 10 C. C. A. 216, 220, 27 U. S. App. 13, 47; Adams Electric R. Co. v. Lindell R. Co., 77 Fed. 432, 451, 23 C. C. A. 223, 241, 40 U. S. App. 482, 514. But it is no less true that a copy of the thing described and claimed in a patent, either without variation, or with such variations as are consistent with its being in substance the same thing, is, for all the purposes of the patent law, the same device or combination as that described in the patent. Burr v. Duryee, 1 Wall. 531, 573, 17 L. Ed. 650. One who claims and secures a patent for a new machine or combination thereby necessarily claims and secures a patent for every mechanical equivalent for that device or combination, because, within the meaning of the patent law, every mechanical equivalent of a device is the same thing as the device itself. Moreover, in determining what is a mechanical equivalent of a given device, where, as in the case at bar, form is not the essence of the invention, forms and names are of little significance. The similarities and differences of machines and combinations are to be determined by the offices or functions which they perform, by the principles on which they are constructed, and by the modes which are used in their operation. A device which is constructed on the same principle, which has the same mode of operation, and which accomplishes the same result as another by the same or by equivalent mechanical means, is the same device, and a claim in a patent of one such device claims and secures the other. Machine Co. v. Murphy, 97 U. S. 120, 125, 24 L. Ed. 935. Mere changes of the form of a device or of some of the mechanical elements of a combination secured by a patent will not avoid infringement, where the principle or mode of operation is adopted, unless the form of the machine or of the elements changed is the distinguishing characteristic of the invention. National Hollow Brake Beam Co. v. Interchangeable

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