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melts, not only releases the material which forms the conducting link, but itself becomes that link, while in the other the only function of the fusible material is to hold until it melts, and then to release the shot which become the conducting link between the plates. This, however, is an immaterial difference. It is not of the essence of the invention or of its operation. The essence of that part of this invention which relates to the fusible plug--the mode of operation which distinguishes it from all other devices—is the holding of a conducting material out of the circuit in one of the plates by means of a fusible material until an arc heats the plate and melts the fusible material so that it releases the conductor, and causes it to form the link between the plates. This mode of operation—this distinguishing characteristic of the inventionthe appellants have completely appropriated. Their device holds the conducting material out of circuit in the same way that White's does, —by a fusible material. It releases it in the same way that White's device does,-by the melting of the fusible material. And it forms the conducting link between the plates in the same way that the combination of White does,-by permitting the conducting material to run down between the plates and in contact with them at the appropriate time. The two devices were constructed for the same purpose. They have the same mode of operation, and they accomplish the same result in the same way, by equivalent mechanical means. The appellants cannot escape liability for the appropriation of the entire essence of this invention by the slight change they have made in a single element of the combination which embodies it.

This conclusion has not been reached without a careful consideration of all that has been said and written concerning the effect of the silk dielectric, its partial burning, and its carbonization in the operation of the device of the appellants. But inasmuch as the complainant's patent clearly covers a potential discharger using a silk dielectric in the place of the slotted mica partition, our conclusion is that the discussion of the operation and effect of the silk dielectric is not material to the determination of the issue presented in this case, and for that reason it has been pretermitted. This case stands as it would have stood if the device described in the patent had contained a silk dielectric in the place of the slotted mica partition. The appellants can reap no advantage and can escape no liability on account of the peculiarities of the operation of the silk which they have substituted for the mica partition of White.

The decree below is sustained by the evidence, is warranted by the law, is equitable and just, and it is affirmed.

(113 Fed. 659.)

KINLOCH TEL. CO. et al. v. WESTERN ELECTRIC 00.

(Circuit Court of Appeals, Eighth CircuitFebruary 17, 1902.)

No. 1,637.

1. PATEXT8-COMBINATION OF OLD ELEMENTS.

A new combination of old elements, whereby an old result is attained in a more facile, economical, and efficient way, may be protected by a

patent. 2. SAME-INVENTION-IMMEDIATE AND GENERAL USE EVIDENCE OF.

Where the question of novelty is fairly open for consideration under the law, the fact that a patented device or combination has displaced others which had previously been used to perform its function, and has gone into immediate and general use, is pregnant and persuasive evi

dence that it involves invention. 3. SAME-LETTERS PATENT No. 330,067 VALID.

Letters patent No. 330,067, dated November 10, 1885, to John A. Seely, for an improvement in grouping spring jacks and annunciators for multiple switchboards, are not void for want of novelty in the device, or of invention in its production, and they are infringed by the divisional

system of the Kinloch Telephone Company. 4. SAME-INDEPENDENT INVENTIONS PATENTABLE WHERE ADVANCE IN ART

GRADUAL.

Where the advance toward the desideratum is gradual, and several inventors form different combinations which accomplish the desired result. with varying degrees of operative success, each is entitled to his own combination, so long as it differs from those of his competitors and does

not include theirs. (Syllabus by the Court.)

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

R. S. Taylor, for appellants.
Frederick I'. Fish and George P. Barton, for appellee.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

وو

SANBORN, Circuit Judge. The circuit court rendered a decree in favor of the Western Electric Company, the complainant in that court, to the effect that the defendants, the Kinloch Telephone Company and Samuel M. Kennard, had infringed the first three claims of letters patent No. 330,067 issued to John A. Seely on November 10, 1885, for an "improvement in grouping spring jacks and annunciators for multiple switchboards,” and perpetually enjoined them from using the invention described in those claims. The defendants have appealed from this decree, and they insist that it is erroneous, on the usual grounds, that the combination described in the patent was the product of mechanical skill, and not the result of the exercise of the inventive faculty, and that they have not used the combination. The three claims of the patent involved read in this way:

“(1) In a multiple switchboard system in which the individual annunciators are distributed in groups upon the different boards, switches for all the lines on each of the boards, and, in addition thereto, sets or groups of switches on the different boards corresponding to the different groups of individual annunciators, each group of annunciators and its corresponding group of switches being placed relatively to each other in the same position on each of the boards, whereby the manner of answering the subscribers is made uniform upon all the boards. (2) In a multiple switchboard system, a spring. jack switch on each board for each line, and additional spring-jack switches, one in each line, for the initial connection, said additional spring-jack switches being distributed on the different boards in uniform groups, and the individual annunciators of the different lines arranged in corresponding groups, substantially as and for the purpose specified. (3) In a multiple switchboard system, a spring-jack switch on each board for each line, and additional spring-jack switches, one in each line, for the initial connection, said additional spring-jack switches being distributed on the different boards in uniform groups arranged in lines across the boards, and the individual annunciators of the different lines arranged in corresponding groups, substantially as and for the purpose specified.”

51 C.C.A.-24

The improvement of Seely described in these claims relates entirely to the placing and grouping of switches and annunciators in a multiple switchboard system. He describes in his claims two classes of switches which in the operation of his combination perform different functions. A switch is any device by which one line may be electrically connected with another. The form in common use t.. switchboards in the telephone exchanges consists of a socket set in the switchboard containing the terminals of the two sides of the subscribers' circuit, and this is used by means of a plug which contains the terminals of the two wires that are attached to it in a cord. The insertion of the plug in the socket makes the electrical connection between the subscriber's line and the wires attached to the plug, and these wires usually lead to another similar plug or to the telephone of the operator. If they lead to another plug, electrical connection may be made between the lines of two subscribers by inserting these plugs in the respective switches of the subscribers upon the switchboard. These sockets set in the switchboard through which the subscribers communicate with each other are called "switches" in Seely's patent, but they are also called “jacks," "spring-jacks,” “spring-jack switches," and "line jacks.” In this opinion they will be termed “line jacks.” They are the "switches for all the lines on each of the boards" specified in Seely's first claim. The "groups of switches on the different boards corresponding to the different groups of individual annunciators" will be called answering jacks, to disturiguish them from the line jacks, and because their function is to enable the operator to answer the calls of the subscribers and to learn their wants by plugging into them instead of into the line jacks, and thus electrically connecting her telephone with the wires of the subscribers when their annunciators announce their calls. When Seely made liis invention the annunciator commonly used was a shutter hinged at its lower edge, which dropped and disclosed the subscriber's number when he took his telephone from its hook or otherwise actuated the current so as to release the catch which held the shutter in place. The multiple switchboard upon which Seely made his improvement was the switchboard divided into sections usually by perpendicular lines described in the patent to Firman of January 17, 1882. After Seely had placed his improvement upon it each section of this board contained all the line jacks of all the subscribers served by the entire board and the annunciators and answering jacks of about 200 of the subscribers. If there were 1,200 to be served by the entire board it might consist of six sections, upon each of which a line jack would be placed connected with the line of each subscriber, while each section would contain the annunciators and answering jacks of only about 200 members of the exchange. For instance, the first section might contain the annunciators and answering jacks of subscribers numbered from 1 to 200, inclusive; the second section those numbered from 201 to 400 inclusive; the third section those numbered from 401 to 600, inclusive. But each section would contain a line jack for every subscriber served by the entire board. The annunciators and answering jacks are divided between the sections in order to enable a single operator to attend to the calls of all the subscribers whose annunciators appear upon a section, and it is impracticable for a single operator to serve more than 200 subscribers. In the combination of Seely the annunciators on each section of the board are formed into a group, and the answering jacks of the subscribers represented by these annunciators are formed into another group by themselves and placed upon the same section. The members of the several groups oi annunciators, and their corresponding answering jacks, are placed in the same relative positions to each other on each section, so that the method of finding and plugging into the answering jacks of the subscribers is uniform on all the sections of the board. When a shutter drops the operator plugs into the answering jack of the subscriber who calls, switches her telephone into the circuit, answers the call, learns the number of the subscriber sought, plugs into the line jack of the latter upon her section of the board, calls the subscriber wanted, and then switches her own telephone out of the circuit and leaves the two subscribers electrically connected, so that they may talk with each other. Prior to Seely's invention the line jacks on a multiple switchboard performed the function of Seely's answering jacks. When a shutter dropped the operator was required to find the line jack of the calling subscriber, to plug into that, to answer the call, then to find the line jack of the subscriber called, to plug into this line jack, to call him, and then by means of a cord with plugs at each end to connect the line jack of the caller with that of the called. Seely's invention consisted in the combination with the line jacks and groups of annunciators on the sections of a multiple switchboard of groups of answering jacks in such a way that each group of annunciators should have on the same section with it a group of the answering jacks of the subscribers represented by the annunciators thereon, so that the members of the corresponding groups of annunciators and answering jacks should be placed in uniform relative positions to each other on every section of the board. The essence of his invention was the convenient and uniform grouping of the annunciators and their corresponding answering jacks relatively to each other. Some of the obstacles removed and some of the advantages derived from this combination were these: In the absence of Seely's groups of answering jacks, when a shutter dropped and disclosed the number of a cailing subscriber, the operator was obliged to search throngh all the line jacks on her section, perhaps 1,200 in number, to find the jack of the subscriber and to plug into that line jack in order to answer the call and to learn what was wanted. The desired line jack might be at some distance from the annunciator, and time and thought would be required to find it and to make the connection with it. Seely placed the groups of answering jacks near to their corresponding groups of annunciators. No group contained more than 200 jacks. When a subscriber called, the operator was relieved from a search for his line jack among a very large number, perhaps 1,200 similar jacks. She was only required to find and connect with his answering jack in order to learn his wants. As the number of these answering jacks was small, not more than 200, and they were uniformly placed and arranged relatively to their corresponding annunciators, a little experience soon enabled her to plug into the right answering jack automatically, without noticing the number described by the annunciator or thinking of or searching for it. This automatic and almost involuntary habit of the operators greatly increased the accuracy, speed, and efficiency of the service. It is sometimes necessary to transfer an operator from the section at which she has been employed to another section of the board. The line jacks corresponding to the group of annunciators on one section of a multiple board are in a different place upon the section from those which correspond to the group of annunciators on any other section of the board.' In the absence of Seely's uniformly grouped answering jacks an operator would become accustomed to find the line jacks through which she must answer on a certain part of her section. When she was sent to another section she would be compelled to devest herself of the habit of plugging into that part of the section to answer the calls, and to learn to answer them through another set of jacks on another portion of the section. This condition of things necessarily resulted in delay, mistakes, and confusion. But when the groups of answering jacks were combined with their corresponding groups

of annunciators in the way discovered by Seely, an operator who once learned the relative positions of the answering jacks and their corresponding annunciators on one section knew their relation upon all the sections, because their relative grouping was uniform throughout, and she could serve equally well on any section of the board. It is frequently convenient, and sometimes necessary, to change the service of a subscriber from one section of a board to another, because the subscribers represented on a certain section require more service, while those assigned to another require less service, than a single operator can render. The only convenient method to make this transfer without the uniformly grouped answering jacks of Seely was by changing the number of the subscriber, and many subscribers seriously objected to changes in their numbers, because these changes involved a change of thought and habit, and because their numbers came to have value in trade. Seely's groups of answering jacks enabled the telephone companies to transfer the service of a subscriber from one section to another by a simple transfer of his annunciator and answering jack without any change in his number, because the uniform relation of the respective members of the corresponding groups of annunciators and answering jacks renders numbers upon

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