# Appendix — Swan Carburetor Co. v. Chrysler Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1942
- **Citation:** 317 U.S. 692

## Text

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Report of the Special Master 1101*

APPENDIX.

Report of the Special Master
In the Case of Swan v. Reeke-Nash,
Northern District of Ohio,
Eastern Division, Equity No. 2047.

REPORT OF WM. B. WOODS, SPECIAL MASTER.
(Filed August 21, 1933.)

To the Honorable Paul Jones, S. HW. West and Geo, P.
Hahn, Judges of the District Court of the United
States, For the Northern District of Ohio, Eastern
Division:

Pursuant to an order made and entered in this
cause on May 26, 1932, at a term of this Court held in the
City of Cleveland, in said District, the undersigned, Wm.
B. Woods, Special Master in Chancery, has proceeded to
take and hear the evidence offered by the respective par-
ties and to report his findings and conclusions along with
his recommendations concerning the relief demanded, to
this Court; and further,

Pursuant to said order there is stipulated into this
cause by agreement of counsel, the pleadings, evidence,
proofs and exhibits, including the affidavits, testimony,
exhibits, and substantially all other matters heretofore

*The boldface page headings and folios in this Report of
the Special Master refer to the pagination of the Record in the
case of Swan v. Reeke-Nash.

bo

1102 Report of the Special Master

filed, taken, submitted, offered or adduced in the case of
The Swan Carburetor Company v. General Motors Cor-
poration, at Law No. 14,169 in this Court, and there is in-
eluded herein such parts of said record as the parties
hereto have offered for the record in this case; therefore,

I, Wm. B. Woods, as Special Master in said cause,
do respectfully report that I have proceeded to investi-
gate the matters so referred to me, that I have been at-
tended by the parties and their respective counsel at my
office at 1214 Terminal Tower Building, Cleveland, Ohio;
that pursuant to said order I proceeded to hear witnesses
and counsel to receive and consider testimony, affidavits,
exhibits and other proof, including that heretofore filed,
submitted, taken, adduced and stipulated into this case
as aforesaid or otherwise, to examine and consider plead-
ings, proof, briefs, arguments, and any and all other
papers or matters relating to the questions involved and
the issues raised herein, to rule on the admissibility of
evidence, but have preserved such evidence as counsel
has demanded, which the Master deemed inadmissible, to-
gether with his ruling thereon for the ultimate and final
ruling by the Court, to observe such tests and experi-
ments as the parties performed or caused to be per-
formed, and to hold the sessions within the District and
Division of this Court, at such time as directed, and thus
to hear and consider all the proof and argument pertinent
to the issues of law and fact arising in the cause. Such
hearings have been had; arguments of counsel have been
had, briefs of counsel have been filed, together with sug-
gested findings of fact and conclusions of law, and upon
consideration of the same, I find and report as follows:

PLEADINGS.

This is a suit for infringement filed November 3,
1926, on Swan Patent No. 1,536,044, for ‘‘method and
means to facilitate distribution of fuel in internal com-
bustion engines.’’ A supplemental bill of complaint was
filed September 23, 1927, alleging infringement of the
Swan Patent No. 1,636,721, for a ‘‘manifold.’’

Although this was the second patent to issue, it was
issued on an application filed September 17, 1921, Serial
No. 501,314, of which the application Serial No. 747,991
filed November 5, 1924, for the first Swan Patent, was a
continuation in part. The pleadings also include an-
swers, amendment to answers, motions and stipulations.

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Report of the Special Master 1103

The alleged infringements are the manifolds made by
The Nash Motors Company and sold by the defendants in
the year 1926, and were used in Nash automobiles known
as Special Six, Advance Six and the Ajax.

MANIFOLDS, SUBJECT MATTER OF THE SUIT.

The subject of the invention involved in this suit is
an intake manifold for use in an automobile. The intake
manifold is a pipe connecting the carburetor with the
eylinders of a motor. The function of the carburetor is
to mix the liquid fuel with air by means of its mecha-
nism, which mixture must be conveyed to the cylinders of
the engine wherein the mixture is to be exploded. This
manifold pipe is connected at one end to the outlet from
the carburetor as a single pipe, which part of the mani-
fold is ealled a ‘‘riser,’’ and this ‘‘riser’’ enters a trans-
verse pipe called a ‘‘header,’’ and this ‘*header’’ divides
into the number of pipes sufficient to connect with all the
ports of the cylinders. These pipes from the ‘‘header”’
to the cylinders are called ‘‘branches.’? Sometimes one
‘branch’? feeds one cylinder with fuel, sometimes two
cylinders, and when a single branch feeds two eylinder
ports they are said to be ‘‘siamesed.’’ In some manifolds
there are branches siamesed and another branch or
branches for a single cylinder.

The fuel mixed with air is drawn by the suction of
the cylinders out of the carburetor through the riser, the
header and the branches into the cylinders. The products
of combustion caused by explosions in the cylinders pass
into an ‘outlet or exhaust manifold’? and are usually

-conveved in a hot condition around or adjacent to the

‘riser’? of the inlet manifold so as to heat it or to form
a “hot spot.”’

The Swan Patents describe the form of intake mani-
fold which is sometimes known as a ‘‘T’’ manifold of
rectangular or square cross-section. As used herein, a
“1? manifold is one in which there is a vertical riser
leading from the carburetor to the longitudinal header
of the manifold. In this riser there is the usual butterfly
throttle valve. At the juncture of the riser and the
header the forward and rear branches of the header and
riser form the letter T. That portion of the manifold
which is at the top of the riser and from which there are
three passages, is referred to as the ‘*T,’’ and in the
Swan Patents this is referred io as the ‘‘distributing
zone.’’

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1104 Report of the Special Master

ISSUES.

The two General Motors cases heretofore tried con-
cerned liability on a royalty contract for the use of the
Swan patents. The entire record in case No. 14,169 is
stipulated into the record in this case and certain por-
tions of the record in the second case, No. 16,366, are also
stipulated into this record. The license there involved
was taken by the General Motors Corporation, which in-
eluded the Buick Motor Company in June, 1923, when
application for the second Swan patent was the only one
then pending in the Patent Office.

In the General Motors cases, after the Buick Com-
pany notified plaintiff in the Spring of 1924 that it in-
tended to give up the square section manifold and use a
round section manifold, the application for the first Swan
patent was filed on November 5, 1924, as a ‘*nartial con-
tinuation”’ of the application for the second patent.

The second Swan patent, No. 1,636,721, issued on the
earlier application, and its claims 5, 7 and 8 in issue being
limited to manifolds with straight ducts which change di-
rection at right angles to each other and ‘*devoid of
curves * * * in the direction of the flow of the fuel mix-
ture.’’ The defendant here asserts there is no infringe-
ment of the manifolds in issue which are circular in cross-
section and which it asserts are replete with curves. De-
fendant further asserts that if the claims are construed
to cover defendant’s manifolds they are met by the prior
art.

Defendant further asserts that until the application
for the second patent, on November 5, 1924, there had
been no claim that a round section manifold was within
the scope of the Swan’s invention.

In the second Swan application claims are made
which are asserted to be broad enough to cover a round
section manifold.

In this situation the defendant asserts that the so-
called ‘“‘Swan method”’ claimed in the first Swan Patent
which issued on the second Swan application, is a false
and mythical mode of operation. Defendant asserts that
this ‘“‘method’’ is non-existent and that the claims there-
to in the first Swan Patent are invalid.

The issues are thus resolved to this, plaintiff asserts
(1) that the Swan manifold operates like and employs the
method described in the Swan Patents, and (2) that the
Swan manifold realizes equal distribution. Both asser-

Report of the Special Master 1105

tions are denied by defendant and other items in dispute
between the parties are collateral to these main questions
in issue.

FACTS ADMITTED OR AGREED TO BY BOTH PARTIES.

(1) The plaintiff, The Swan Carburetor Company,
is and was a corporation of the State of Ohio having its
principal place of business at Cleveland, Ohio, as alleged
in the bill of complaint and the supplemental bill of com-
plaint, and is the sole owner of the entire right, title and
interest in and to the inventions and patents in suit
along with the whole right to recover for all the infringe-
ment therein complained of and to be awarded the relief
prayed for in the bill of complaint and supplemental bill
of complaint. The Swan Carburetor Company is prop-
erly the sole plaintiff here having all the right, title and
interest of every nature whatsoever which formerly rest-
ed in the joint plaintiffs named in the bill of complaint
and supplemental bill of complaint, as appearing in the
stipulation and order, plaintiff’s Ex. 5, made by refer-
ence a part hereof.

(2) The defendant, The Reeke-Nash Motors Com-
pany, is and was an Ohio corporation, and has and had a
regular and established place of business at Cleveland,
Ohio, as alleged in the bill of complaint and supplemental
bill of complaint.

(3) Both The Reeke-Nash Motors Company and The
Nash Motors Company were named as defendants in the
original and supplemental bills of complaint, the defend-
ant, The Reeke-Nash Motors Company, alone filed its
answers to the bill of complaint and the supplemental
pill of complaint. The defendant, The Nash Motor Com-
pany, was not served and made no answer to either the
original bill of complaint or the supplemental bill of com-
plaint.

(4) The manifolds charged by plaintiff to infringe
the patents in suit were all made, used and sold in con-
nection with six cylinder engines, and all comprise a
riser, header and branches, of which typical risers are
shown in plaintiff’s Ex. 50, which is by reference made a
part hereof, and of which the header and branch por-
tions, with certain integrally formed risers, are shown in
plaintiff’s documentary exhibits 40 to 46 inclusive, part
of which by corresponding numbers are also illustrated in
plaintiff’s physical exhibits 41A, 42A, 438A, 45A and 46A,

SPSTR TT TTT SEWER AIS SINT RR AE Me ROEANRNIN CRNIM

1106 Report of the Special Master

all of which by reference are made a part hereof. The
said manifolds and engines were made or ‘aused to be
made by The Nash Motors Company, knowing and in-
tending that certain quantities of them were to be used
and sold by the defendant, The Reeke-Nash Motors Com-
pany. Such manifolds and engines were used and sold
by The Reeke-Nash Motors Company in the Northern
District of Ohio, Eastern Division, prior to the filing
of the original bill of complaint and the supplemental
pill of complaint and subsequent to the issuance of the
respective patents in suit.

(5) The defense of this suit is made by the answer
and pleadings of the defendant, The Reeke-Nash Motors
Company ; and in accordance with Article VI of the con-
stitution of the National Automobile Chamber of Com-
meree, Ine. (plaintiff’s Exs. 74 and 144), and at the re-
quest of the Nash Motors Company, the said Chamber
of Commerce assumed and is carrying on and controlling
the defense of this suit, selected counsel therefor, and
has assumed the payment of all expenses of said defense ;
and said Chamber of Commerce has assumed and is
carrying on and controlling the defense of the pending
suits brought by the plaintiff on the same patents against
‘ts members, The Nash Motors Company, the Reo Motor
Car Company and the Willys-Overland Company, se-
lected counsel therefor, and has assumed the payment
of expenses of such suits.

(6) The patent in suit, No. 1,636,721, was issued
July 26, 1927, to John W. Swan on application for Let-
ters Patent in the United States, Serial No. 501,314, filed
September 17, 1921, and the patent in suit, No. 1,536,044,
issued April 28, 1925, upon an application for Letters
Patent in the United States filed by John W. Swan,
Serial No. 747,991, November 95, 1924. The later appli-
‘ation and earlier patent refer to the earlier application
and is a continuation of the earlier application as stated
in said patent.

(7) The patent in suit, No. 1,536,044, along with
its complete file wrapper and contents including the ap-
plication Serial No. 747,991, and the application Serial
No. 501,314, along with its complete file wrapper and
contents up to and including the amendment of March
3, 1927, were exhibited to the Court for the Northern
District of Ohio, Eastern Division, in the case of The
Swan Carburetor Company v. General Motors Corpora-

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Report of the Special Master 1107

tion, at Law No. 14,169, decided by Judge Westenhaver,
42 Fed. (2) 452, affirmed by the Court of Appeals (C. C.
A. 6) 44 Fed. (2) 24. Both of the patents in suit, along
with the complete file wrapper and contents of each of
them, were exhibited to the Commissioner in the case of
The Swan Carburetor Company v. General Motors, at
Law No. 16,366. In both of the foregoing cases the in-
vention or inventions and improvements disclosed and
claimed in the patents in suit were considered, and dis-
cussed by the tribunals which heard and decided the is-
sues therein raised, which appertained to the said in-
vention or improvements and said patents and appli-
vations.

(8) The issues in this case are in many instances
the same as the issues in the first General Motors case
hereinbefore referred to. The parties are represented
by the same counsel, and the major portion of the testi-
mony and exhibits submitted in the first General Motors
case would have had to be adduced and submitted again
in this ease, except for the agreement of counsel to stipu-
late such testimony and exhibits into this case as if it
had been taken here in the first instance.

(9) The Buick manifolds, plaintiff’s Exs. 6 to 11
inclusive, and including the risers and Marvel heaters
for which this plaintiff recovered royalties in the action
at Law No. 14,169 against General Motors Corporation
hereinabove referred to, are substantially identical with
defendant’s manifolds here charged to ‘infringe, plain-
tiff’s Exs. 40 to 46 inclusive and the physical exhibits
hereinabove referred to, and including the risers and
Marvel heaters, plaintiff’s Ex. 50. The Buick manifolds
including the risers were used with six cylinder engines,
as were and are all of defendant’s manifolds here
charged to infringe.

(10) The claims selected to exemplify the invention
and as the basis for the charge of infringement of the
first Swan Patent No. 1,536,044 are method claims Nos.
4,5, 8, 9 and 10, as follows:

4. A method of distributing a fuel mixture to
an engine which consists in moving the mixture in

a straight line to a zone from which it is distributed

to a plurality of engine cylinders, directing said

movement by forces “which t tend to distribute the
mixture uniformly in all directions in a plane trans-
verse to said movement, and further directing the

: 8

8 1108 Report of the Special Master
2

2 movement of the mixture by forces tending to move
4 it successively in a plurality of directions transverse
3 to the original direction, to the cylinders.

5 5. A method of distributing a fuel mixture to
& an engine which consists in moving the mixture to
a a zone through which it is distributed to a plurality
a of engine cylinders, modifying said movement by
forces tending to distribute the mixture in uniform
a character in various directions in a plane trans-
2 versely of said zone, and further subjecting the
cf movement of the mixture to forces acting to prevent
a impairment of the character of the mixture due to
3 influences created by any changes of direction be-
3 yond the zone.

; g A method of distributing a fuel mixture to
: an engine which consists in moving the mixture to a
; zone through which it is distributed to a plurality of
: engine cylinders, subjecting said movement to forees
3 acting to distribute the mixture in uniform character
* in three directions in a plane transverse to said
; movement, and further subjecting the movement of

the mixture to forces acting to prevent impairment
of the character of the mixture due to influences cre-
ated by any changes of direction beyond the zone.

9. A method of distributing a fuel mixture toa
> six-cylinder engine which includes the moving of the
E mixture to a zone through which it is distributed in
three directions in a plane transverse to said move-
ment, and subjecting said movement to forces tend-
ing to distribute charges in alternating directions
and in uniform character in all of said directions.

10. A method of distributing a fuel mixture toa
six-cylinder engine which includes the moving of the
mixture to a zone through which it is distributed in
three directions in a plane transverse to said move-
ment, subjecting said movement to forces tending to

3 distribute charges in alternating directions and in
| uniform character in all of said directions, and fur-
& ther subjecting the movement of the mixture towards
| adjacent pairs of cylinders to forces tending to qual-
F ify the charges for said pairs in substantially equal
proportions of wet mixture constituents.

E Also of the first Swan Patent are included apparatus
f claims Nos. 11, 12, 13, 20, 22 and 23, as follows:

E

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Report of the Special Master 1109

11. An inlet manifold comprising a distribut-
ing chamber having a single inlet conduit and :
plurality of outlet conduits, said chamber being
formed of walls the intersections of which form
straight lines.

12. In an inlet manifold, a distributing chamber
having a single inlet conduit and a plurality of out-
let conduits, said chamber being formed of walls the
intersections of which form straight lines, the inlet
conduit being at right angles with all outlet con-
duits.

13. In an inlet manifold, a distributing chamber
having a single inlet conduit and a plurality of out-
let conduits, said chamber being formed of walls the
intersections of which form straight lines, one of
said walls being opposite the inlet duct and sym-
metrically shaped and situated relative thereto, so
that entering mixture may be influenced by said wall
uniformly in all directions transversely to the en-
tering stream.

20. In an inlet manifold, a distributing cham-
ber having a single inlet conduit and three branch
conduits, one of the walls of the chamber being op-
posite the inlet duct and symmetrically formed and
situated with reference to the branch ducts so that
entering fluid may be influenced by said wall uni-
formly in all directions transverse to the entering
stream, and the branch conduits being of substan-
tially uniform shape throughout and at any turn
thereof presenting similar walls shaped and situated
so that passing mixture may be influenced thereby in
a manner to distribute equally to eylinders to which
said turns may lead.

22. In combination with a six cylinder engine, a
manifold comprising a distributing chamber having
an intake and three outlets each leading to a pair
of cylinders, the wall of each leading to a pair of
evlinders, the wall of the chamber opposite the in-
take being symmetrically formed and situated with
reference to the outlets to uniformly intluence enter-
ing mixture and cause the same to distribute in uni-
form character in the successive directions deter-
mined by the outlets and induction cycles of the
engine.

fARLAP IE hy

10

1110 Report of the Special Master

@
By

93. In combination with a six cylinder engine,

aati

@ a manifold comprising a distributing chamber hav-
; ing an intake and outlet branches, the wall of the
Fi chamber opposite the intake being symmetrically
| formed and situated with reference to the outlets to
3 uniformly influence entering mixture and cause the
% same to distribute in uniform character in the di-
4 rections determined by the outlets and induction
4 eycles of the engine, the outlet with the intakes of
; pairs of cylinders, and the angular formations being
2 shaped and situated so that passing mixture will be
. influenced thereby in a manner tending to distribute
equally to the evlinders of the pair to which the
branches respectively relate.

Of the second Swan Patent, No. 1,636,721, there are
included apparatus claims Nos. 95, 7 and 8, as follows:
_ 5. Ina manifold for a six-cylinder internal com-
: bustion engine, the combination with a main mani-
fold duct, level throughout its length, a straight or
& substantially straight riser duct connecting the ear-
: buretor with the central part of the main duct and
‘ being at right angles, or substantially at right angles
: thereto, the interior or the connection of the riser

to the main duct being at a substantially uniformly
sharp angle all around the connection, three second-
ary ducts each for connecting the main duct to two of
the engine cylinders, the middle secondary duct being
connected to the main duct at the junction of the
riser with the main duct and at right angles, or sub-
stantially right angles thereto, a distributing zone
with a non-reeessed roof being formed at the junction
of the main duct, the riser and the middle secondary
duct, the two other secondary ducts being connected
to the main duct at the ends thereof, all of said sec-
ondary duets being parallel, or substantially paral-
lel to each other and perpendicular or substantially
: perpendicular to the main duet, on the interior the
3 end secondary duets making a right angle connection
with the main duct at the sides nearest the middle
and the middle secondary duct making a sharp con-
nection with the interior of the main duct, and all of

TOAD vic OS TRS at

said ducts and riser being devoid of curves and
recesses in the direction of flow of the fuel mixture.
q 7. In a manifold for a_ six-cylinder internal
4 combustion engine, the combination with a main
a
q

Report of the Special Master

1]

1111

manifold duct, level throughout its length, a straight
or substantially straight riser duct connecting the
carburetor with the central part of the main duct
and being at right angles, or substantially at right
angles thereto, the interior of the connection of the
riser to the main duct being at a substantially uni-
formly sharp angle all around the connection, three
secondary ducts each for connecting the main duet
to two of the engine cylinders, the middle duet with
the two middle cylinders and each end duct to the
two nearest end eylinders, the middle secondary duct
being connected to the main duct at the junction of
the riser with the main duct and at right angles, or
substantially right angles thereto, a distributing
vone with a roof having a eurved portion being
formed at the junction of the main duet, the riser
and the middle secondary duct, the two other sec
ondary duets being connected to the main duct at the
ends thereof, all of said secondary duets being
parallel or substantially parallel to each other and
perpendicular or substantially perpendicular to the
main duct on the interior, each of the end secondary
ducts making a right angle connection with the main
duct at the sides nearest the middle duct and the
middle secondary duct making a sharp connection
with the interior of the main duct, and all of said
ducts and riser being devoid of curves and recesses
in the direction of flow of the fuel mixture.

8. In a manifold for a_ six-cylinder internal
combustion engine, the combination with a main
manifold duet, level throughout its length, a straight
or substantially straight riser duct connecting the
carburetor with the central part of the main duet
and being at right angles, or substantially at right
angles thereto, the interior of the connection of the
riser to the main duct being at a substantially uni-
formly sharp angle all around the connection, three
secondary duets, each for connecting the main duet
to two of the engine cylinders, the middle duct with
the two middle eylinders and each end duct to the
two nearest end cylinders, the middle secondary
duct being connected to the main duct at the june-
tion of the riser with the main duct, and at right
angles, or substantially right angies thereto, a dis-
tributing zone with a roof curved on a greater radius
than the adjacent secondary duct and formed at the

pee TAA AR RRO AOE

12

1112 Report of the Special Master

junction of the main duct, the riser and the middle
secondary duct, the two other secondary ducts being
connected to the main duct at the ends thereof,
all of said secondary ducts being parallel, or sub-
stantially parallel to each other and perpendicular
or substantially perpendicular to the main duct
on the interior, each of the end secondary ducts
making a right angle connection with the main
duct at the side nearest the middle duct and the mid-
dle secondary duct making a sharp connection with
the interior of the main duct, and all of said ducts
and riser being devoid of curves and recesses in the
direction of flow of the fuel mixture.

FINDINGS OF FACT.

(1) The first Swan patent issued April 28, 1925,
and the second, July 25, 1927; the suit on the first patent
was begun in November, 1926, and upon the second patent
by supplemental bill of complaint filed in September,
1927. The infringements alleged herein are for Nash
manifolds made in 1925 and 1926 on Nash cars sold by
defendant. In April, 1931, plaintiff brought suit against
the Nash Company, and at about the same time the Reo
Motor Company was sued for alleged infringements be-
gun in January, 1927, and the Willys-( verland Company
for alleged infringements begun in 1925. The Dodge
Brothers Company is claimed to have infringed in 1928
but it has not been sued nor has the Chrysler Company,
its successor. The present case is the only infringement
suit, strictly speaking, which has been brought to trial
where the validity of the Swan patents are in issue.
The alleged infringements began as early as July, 1924,
although technical infringement can only start with the
issue of the first patent in April, 1925, and the trial of
this case began in September, 1982.

(2) Substantially all of the prior art testimony of-
fered by the defendant in this case is stipulated into this
record trom the record of one or the other of the General
Motors cases hereinbefore referred to, and all of the
prior art exhibited by defendant here, except defend-
ant’s Ex. 384, a Murray & Tregurtha manifold assembly,
was exhibited to one or the other of the tribunals which
heard and decided the General Motors cases hereinbefore
referred to.

(3) In and about the year 1917 the gasoline fur-
nished for the market became or was generally becom-

_—
13

Report of the Special Master 1113

ing so low in volatility that manifolds for internal com-
bustion engines were called upon to distribute wet fuel
mixtures, which included particles of unvaporized or
liquid fuel, from the carburetor to the several cylinders
of the engine. These changing characteristics of the
gasoline on the market as of about this time brought
about a serious new problem, to-wit, the equal distribu-
tion of the wet or unvaporized constituents of the fuel
mixture in its movement from the carburetor to the sev-
eral engine cylinders. With the gasoline on the market
since about 1917, the fuel mixture as it leaves the carbu-
retor contains much liquid gasoline.

(4) The problem of distributing wet fuel mixtures
from the carburetor to the several engine cylinders was
complicated by the vast difference between the density
and volume of the liquid gasoline as compared with the
air and vaporized gas in the mixture, and further eom-
plicated by the inertia of the liquid particles and the
effect of centrifugal force acting to separate the heavier
liquid particles from the vastly lighter air and gas con-
stituents of the mixture; all of which tended to distribute
different quantities of mixture including the liquid con-
stituents to the various cylinders of the engine. The
complications were increasingly aggravated as the num-
ber of cylinders of the engine was increased, as for ex-
ample, from three to six cylinders. This problem was
difficult and its solution was long sought by many eminent
and distinguished engineers throughout the automotive
industry. The existence and difficulties of the problem
was recognized and known to exist long before Swan en-
tered the field. This problem demanded solution and it
is conceded here that whoever solved. the problem
achieved much and made an important invention.

(9) No prior art manifold exhibited by defendant
here effected or accomplished equal distribution of wet
fuel mixtures, and no prior art manifold has the mode
of operation of the Swan patented manifold and method,
as described in the patents in suit. The Murray &
Tregurtha prior art manifold, as operated on a three
evlinder engine with automatie intake valves and with
the riser and carburetor shown in defendant’s Ex. 381,
came nearer to getting equal distribution and operating
like Swan than anything else in the prior art, but this
combination of riser, header, branches and engine was
different from defendant’s and the patented one and
Was demonstrated by defendant, by the use of a header

mendation for the Swan manifold were Mr. Sage, Pence,

Experimental Engineer, and Bassett, then President and
General Manager of Buick, and DeWaters and Bower,
Chief and Assistant Engineers of Buick, and Hartz, En-
gineer of Buick Testing Laboratory. In addition, there
was Mr. Reuter, President of Olds Motor Works and
Mr. Baker, Chief Engineer of Willys-Overland, and ref-
erences to their statements are found in briefs of coun-
sel.

H. L. Horning, a manufacturer of gasoline engines
and an expert motor engineer, states that:

“‘The art of building six-cylinder engines might
be said to revolve about better valve materials until
some better form of manifold could be designed,”’
(Trans. 23e) ‘‘and after spending a hundred thou-
sand dollars in trying to produce a good manifold,
and research, and so forth, and consideration of the
results we got, it seems to me that the simplicity of
the Swan manifold is a very important thing * * *
because of the saving in the cost of construction of

ee Ne ee ee ee ee) eee ee ee ee a oe.” Cf er we ee ee

39

Report of the Special Master 1139

the usual manifold,’’ (Trans. 23f) ‘‘and finally this
Swan manifold is better than anything we have seen
before.’’ (Trans. 23i.)

Thus many automobile engineers accepted the Swan
manifold and have said that it was an improvement upon
the old island type of manifold. Buick took its license,
proceeded to manufacture, and without cancelling sought
to manufacture a manifold which it claimed was not
within the bounds of the patent. Such claims were de-
nied in the first General Motors case and are now pend-
ing in its second case.

After General Motors took this stand other members
of the National Automobile Chamber of Commerce pro-
ceeded to manufacture, after experimenting with the
Swan manifold, and suits are pending against Willys-
Overland and Reo. Several engine manufacturers took
licenses and there was an acceptance of the Swan mani-
fold as an improvement.

Engineers and engine manufacturers have accepted
the Swan method as an improvement over the old forms
of manifolding and wherever contest was made, it was
on the ground that they did not use the Swan method.
In this case for the first time has the proof been offered
that the so-called Swan method of manifolding is non-
existent, and the basis for this, of course, is the elaborate
tests and testimony of Mr. Tice. Before this case there
has been no proof offered either in publications or by
tests showing with such accuracy and clearness the ac-
tual operation of the forces in a manifold.

Even if there were no other evidence before the court
than the tests and testimony of Mr. Tice, the value and
importance of Swan’s invention and its title to be rated
as an important invention would seem to be clear, for
in his 1911 articles (plaintiff’s Ex. 37) all of the state-
ments which he now affirms (Trans. 1059) set forth the
want, the need, the problem, its difficulties, and the fail-
ure of its solution notwithstanding the many efforts to
improve manifolds as shown in his writings. The later
work of Tice at the Stewart-Warner Company in efforts
to find the solution of the manifold problem, resulted in
patents which have been launched into the trade. While
he has testified to many things and clearly shown and
analyzed the operation of the forces and the actions of
mixture in the manifold, it must be still said that Swan
did add to the solution of the manifolding problem, that
while he may not have secured scientifically ‘‘equal dis-

40

1140 Report of the Special Master

tribution,’’ he did secure ‘‘good commercial distribu-
tion’’ in the operation of his manifold. So that under
the heading of utility the Swan invention has met the
test of invention prescribed by the patent courts.

TESTS AND EXPERT TESTIMONY.

The tests upon which plaintiff relies include the
usual road tests, that is, acceleration, hill-climbing and
economy. Spark plug tests and gas analysis tests were
also offered in evidence. Expert testimony for plaintiff
was given by Frank L. Sessions who testified in the
General Motors cases, Kirkham, engineer for plaintiff,
and President Pelton of the plaintiff company. Gener-
ally speaking, in offering its testimony, plaintiff covered
the same ground as in the General Motors cases and much
of the testimony from those cases was stipulated into this
record.

Defendant also relies upon the record in the Gen-
eral Motors cases for most of its evidence as to prior
art, the only new evidence being as to the 20th Century
manifold. For its defense to the patents, the new evi-
dence upon which defendant principally relies, is the ex-
pert testimony and tests made by or under the supervl-
sion of P. S. Tice. This is the same P. 8S. Tice whose
article on the prior art appeared in ‘‘Motor’’ of May,
1911, and Judge Westenhaver, in Swan Carburetor Co.
v. General Motors Corp., supra, said ‘‘his description of
the existing art in manifolds and of the problems in-
volved may be accepted as correct.’’

The tests conducted by Tice in the Master’s presence
at the factory of the White Motor Company showed the
performance of liquid gasoline at the elbow of manifolds.
Also later at the same factory, he operated another test
ona Murray & Tregurtha engine with a glass window on
its manifold. The Cox indicator tests at Detroit were
made under the supervision of Tice and results became
a part of his testimony. The tests made with the Cox
indicator used a delicate, scientific apparatus, the record
sheets of the tests being in evidence. To better show
the operation of the forces, test apparatus was operated
by Mr. Tice with Neon lights and stroboscope, and the
record contains two reels of moving picture film show-
ing the manifold in operation driven by a dynamometer.

In addition to Mr. Tice as a practical carburetion en-
eineer, defendant relies upon Professor Cooley of the
University of Michigan, Dean Emeritus of College of

41

Report of the Special Master 1141

Engineering, a scientist who testified as to the behavior
of flowing liquids.

With these tests made by defendant, an explanation
is offered of the problem involved in the operation of
forces in a manifold. The facts were developed and
shown in the actual operation of test apparatus and prob-
ably were publicly viewed for the first time. There was
no such proof offered in the General Motors cases, as the
record shows. The operation of the forces as pictured
by defendant’s tests was unknown to plaintiff’s expert,
Sessions, and could not be described by him (Trans. 195)
for he says ‘‘the exact action of mixture is measurable
only by results, so far as I know * * *. We know what
it performs, but we don’t know the manner by which it
performs it.’’

The operation of the forces in the manifold was
also unknown to Swan, as appears from the first state-
ment of his original application for patent, where he
states his inability to describe such forces.

With the Tice tests offered by defendant, showing
operation of forces in a manifold, has this new evidence
destroyed the Swan patents? Judge Westenhaver said
that the Tice 1911 description of the existing art and
manifolds might be aecepted as correct, and that Swan
sought to solve the problem Tice had stated and dis-
cussed; and he found that Swan solved the problems in-
volved ‘‘by introducing a new and original principle of
operation. The gist of his invention consists in bringing
the gaseous mixture from the carburetor to the header
in perpendicular or straight lines, then abruptly chang-
ing its course at right angles in the header, and then
again changing its course at right angles from the header
into the branches.’’

Judge Westenhaver goes on to say that all other
features of Swan are subsidiary, that while he might
have stressed a dome or flat wall, the recesses in the
outer bend, flat or level floors, or even square cross-sec-
tion, such were not made by Swan as the substance of
his invention.

THE NEW PROOF AS TO METHOD AND OPERATION OF
FORCES IN A MANIFOLD OFFERED IN THE TICE
TESTS AND THE SWAN CLAIMS TO INVENTION.

Distribution of the liquid gasoline to the various
cylinders is the function of any manifold. **Hqual dis-
tribution’’ of such gasoline is the claim of the Swan
patents.

1142 Report of the Special Master

Defendant claims that the description of the entire
mode of operation of the Swan manifold is incorrect as
stated in the patents and that the record fails to show
that either Swan or plaintiff’s experts described or un-
derstood the actual operation of the mixture in a mani-
fold. Plaintiff asserts that patents in suit describe the
operation and that its experts have testified sufficiently
as to this (Trans. 104-109, 1334 and 1530).

Relying upon the Tice tests, particularly those made
with a Cox indicator, known in this record as the Detroit
tests and the Fulwiler tests, defendant urges that a Swan
manifold on a Nash engine (plaintiff’s Ex. 375) distrib-
utes gas unevenly to different cylinders, and so fails to
effect the ‘‘equal distribution’’ essential to the ‘‘Swan
method’’ of the patents.

Plaintiff’s answer is in substance, that no matter
what some delicate, scientific laboratory apparatus may
show as to any variation of gasoline as received and re-
corded upon the aspiration of any individual cylinder,
the effect is that the Swan manifold gives ‘‘good com-
mercial distribution,’’ which in itself is invention; was
unknown in the prior art, and is an improvement on the
prior art; and which defendant has appropriated with-
out license and is now an infringer.

With the help of most delicate electrical apparatus
in the laboratory, Mr. Tice has shown every step, in
fact every instant, in the travel of gasoline from car-
buretor nozzle, past the butterfly throttle up the riser,
around the bends, into the header, around another bend
into the branches, and finally into the cylinder for use in
the separate aspiration of each cylinder. These globules
of gasoline move at ‘‘hurricane speed,’’ varying with the
engine speed which operates at 800, 1200 or 1800 revolu-
tions per minute, at the rate of 120 miles per hour at
1200 R.P.M. (Trans. 1169). Most complete is the Tice
analysis of these operations, by charts, diagrams and
photographs of operations, which were viewed in the
tests at the White plant, with and without Neon lights.
Finally two moving pictures of the tests are articulated
in one film so that the audience may have before it at
one time, in a single view, a birdseye view into the top
of the manifold and a view into the side, showing side.
by side the two views of the interior of the manifold, as
the mixture containing particles of gasoline is sucked in
for each separate aspiration of the six cylinders.

Without attempting to describe the different phe-
nomena pointed out by Mr. Tice in a single cycle of the

43

Report of the Special Master 1143

six aspirations of the several cylinders, which include
gasoline on riser walls, its behavior at the T, the eddies
at the corners or bends, the hot and cold blow-backs, the
impingement or failure to impinge of liquid gas at the
ends, the action of the valves and the quick reversals of
the flow of mixture as different cylinders operate, the
claims of operation as shown by the Tice proof must be
considered as against the claims for the Swan method of
the patents.

Counsel for defendant claim for the Tice proof that
it establishes:

(a) That while Swan claims to start with a homo-
geneous mixture of gas particles and air and that such
character of the mixture is maintained until delivered to
the different cylinders, defendant denies that the mix-
ture of air and gas is homogeneous to start with and
never becomes homogeneous.

(b) That the mixture does not move up the riser
in rectilinear lines but has an inherent turbulent motion
with deflections due to carburetor intake, nozzles and
throttle, which prevent movement in rectilinear lines;
that because of the swirling motion most of the liquid
is deposited on the walls of the riser where it aceumu-
lates unevenly and is blown up the riser in uneven
streams.

(c) That the square shape of the Swan riser does
not prevent the swirling of the mixture, which Tice shows
does swirl and deposits liquid unevenly on the riser walls.

(1) That the mixture, on reaching the top of the
riser, does not impinge on the flat surface of the header
above the riser and that the Swan method ignores what
Tice shows, that the mixture stream bends around the
corner at the top of the riser in a curved path and does
not impinge upon the ceiling; yet there is proof that the
liquid globules of gasoline in the mixture do strike the
top of the header at or near the riser, and this is a scien-
tifie fact based upon the action of inertia, for the liquid
gasoline being heavier than the air part of the mixture
as the turn is made, is thrown against the header due to
the force of inertia. The result is the impingement, so-
called, of the plaintiff’s patent and its effeets were to be
seen in all tests viewed by the court.

(ec) That the mixture, when it reached the T or the
so-called distributing zone, makes a right angle turn, is
challenged, because of the speed of the mixture and the

a
44

1144 Report of the Special Master

pulling force, the mixture is shown by the pictures to
bend as it changes direction at the right angle turns of
the manifold, and the Tice tests show the path of the
mixture in curves as large or as ‘‘sweeping’’ as the
diameter of the manifold will permit.

(f) That there is no spattering or rebounding of the
particles of gasoline in the mixture at the turns, although
such descriptive words fairly well describe what is seen
in the tests made, which were observed in this case and
the General Motors case, and were accepted by Judge
Westenhaver and the defendant in that case; only in tlie
new tests made by Tice with the aid of Neon lights and
stroboseope other phenomena appear and spattering and
rebounding are not the only visible results of the effects
of the forces in operation.

(g) That the liquid accumulates in eddies and forms
puddles or reservoirs in the header and center branch at
points just beyond the corners at the top of the riser;
which eddies or accumulations were first shown by Tice
tests and are ascribed by plaintiff’s expert to the tur-
bulence of the mixture and such eddies or accumulations
flatten out and practically disappear when there is a
change of direction in the flow of the mixture as it is
pulled from one end of the engine to the other as the
different cylinders aspirate, which change of direction
is also accompanied by the hot and cold blow-backs, and
the Tice tests show that there is some variation in the
richness of the mixture as received by the end cylinders
compared to the center cylinders.

(h) That after the mixture leaves the T it does not
flow in rectilinear lines to the branches, is untrue for
practically all of the liquid particles of the mixture are
on the walls and such as are in the air stream at the T
immediately come into contact with the walls to which
they adhere.

(i) That the liquid particles are not projected be-
yond the sharp inside corners at the ends of the header
and are not remixed in the gas stream, for Tice says that
the liquid is substantially all on the walls.

(j) That the absence of liquid accumulations of the
Swan method is untrue, for Tice points out eight places
where accumulations or reservoirs of liquid assemble due
to eddies.

(k) That such equality of distribution as has been
obtained by Swan has been due to the application of

Pes ct
oS sh tae = ‘ ee ysigthacncie
ee ° a is ‘ ire ‘Saas

49

Report of the Special Master 1145

heat on the exhaust jacket which has produced evapora-
tion in the riser, but for which heat application there
would be larger accumulations of liquid in the header
and branches; and that whatever commercial suecess the
Swan manifold has had, has been due to this application
of heat to the riser, which vaporizes most of the liquid
before it reaches the T, so that this vapor mixes with
the air and is evenly distributed to the cylinders.

(1) That increased economy is not obtained by the
Swan manifold since its lack of equal distribution re-
quires in practice the setting of the carburetor rich
enough to bring up to the necessary richness cylinders
that run lean, and this practice produces an unnecessary
richness in other cylinders and causes fuel waste.

Defendant urges that there is no proof of equality
of distribution by the Swan manifold; that the only way
to test equal distribution of liquid by a manifold to each
individual cylinder is to test the mixture in each eylin-
der separately from the mixture of other cylinders, and
to establish this claim the new proof of the Tice tests is
offered.

Defendant urges that commercial success, acquies-
cence by the taking of licenses, or statements of engi-
neers skilled in the art do not establish the Swan method
or that the mixture is equally distributed as against proof
tendered in the Tice tests; further, that road tests evi-
dence only the over-all performance of the engine and
give no information as to the method or quality of the
distribution.

As before stated, the court must weigh the evidence
and consider the effect of the new proof offered by Mr.
Tice in this ease.

The motion pictures show particles of the mixture
striking the roof of the header opposite the riser (plain-
tiff’s Exs. 117-123 inel.). Even if this be only a part
of the mixture, yet it is in the method of the patent and
is a phenomena described by Swan and one which has
been shown in all tests heretofore made.

The stroboscopic demonstrations on the glass mani-
fold at the White Plant showed the liquid particles hit-
ting the roof of the header opposite the riser, and liquid
particles were also seen hitting the roof of the header
opposite the riser at the road demonstration, with a glass
manifold on plaintiff’s test car.

The elbow demonstrations with and without the
stroboscopic lights demonstrated movement at the turns,

i ~ oe ee aE
ee ee OY eR ae Le

ea kent

a

46

1146 Report of the Special Master

notwithstanding the controversy between experts as to
the presence of turbulence as contrasted with eddies and
accumulations. Particularly as to the Murray & Tre-
gurtha manifold, with a glass header, it was apparent in
the tests that the mixture was unevenly distributed for
greater quantities of liquid flowed to the front of the
header than to the rear, and confirmed the testimony of
the failure of the Murray & Tregurtha manifold to give
equal distribution. Colchester (Trans. 1409), Kirkham
(Trans. 1427), and Sessions (Trans. 1543).

Finally, while Tice has shown much new information
as to the phenomena of the movement of the mixture in
the manifold which was unknown before the tests offered
in this ease, it cannot be said that the concept of Swan
did not add something new to the art of manifolding, so
that his patents may now be denied because of the new
proof offered by the Tice testimony in this ease. While
his method may not effect ‘‘scientifically equal distribu-
tion,’? he did give ‘‘commercially equal distribution”
and made an advancement in the art of manifolding.

DEFENSES TO THE PATENTS IN SUIT.

Defenses to the patents in suit urged by counsel are
indefiniteness, functional claims, belated amendments to
enlarge scope of application, contentions as to the file

wrapper, and anticipation of method claims of first Swan
patent, which will be considered in order.

The Defense of Indefiniteness is urged and seems
to be on the proposition that Swan patents do not de-
scribe all the forees which tend to distribute the fuel
mixture. Yet the law seems to be, if the applicant states
fully enough the scientific principles and the forces in-
volved in the operation of his method, that he is con-
sidered to have solved a problem and be entitled to a
patent.

The law only requires as a condition for protection
that the world be given something new and that the
world be taught how to use it. Diamond Rubber v. Con-
solidated, 220 U. S. 428, 435 (1911). The rule is stated
‘n Walker on Patents, 6th Ed., Sec. 218, pg. 292:

“Tt is enough to describe one particular mode
and one particular apparatus by means of which the
process may be performed with at least some bene-
ficial result.”’

47

Report of the Special Master 1147

While it might be said that Swan did not completely
and scientifically define his process or method, he de-
fined them sufficiently to meet the requirements of the
patent law. He did describe the apparatus in which the
method could be performed. The patent drawings show
to one skilled in the art not only one apparatus, but a
preferred apparatus and modified forms for carrying out
his process. Mr. Sessions, for the plaintiff, summarized
this (Trans. 1522):

‘‘In fact, my opinion that the Swan patents ade-
quately and accurately describe the structure and
operation of the Swan inventions, has been made
stronger by my observations of Mr. Tice’s demon-
strations, both of the glass manifold, the transparent
manifold on the engine, the moving pictures and the
operation of the engine at Detroit.’’

The Defense of Functional Claims is urged on the
basis that the claims do not say what the forces are or
how they are to be identified, which distribute the mix-
ture uniformly in all directions. The rule seems to be
that the method claims are valid, even though functions
may be recited in them.

The function of the Swan machine and the Swan
method is equal distribution of the mixture. This fune-
tion is not recited in any of the claims in suit, and if it
were such claim would not be functional unless patent-
ability depended upon recitations of the function.

For instance, in claim 9 the steps are the moving
of the mixture to the T from which it is distributed in
three directions and subjecting the movement to forces
which distribute the charges alternately in each direc-
tion in a plane transverse to the original movement.
These are steps in the method and not in the function,
which is the distribution of charges to the cylinders in
equal proportions. The method or process of this claim
is typical and is the orderly succession of movement of
the fuel mixture to the T, changing its direction of move-
ment at right angles and alternately sucking the mixture
from the T, first in one of three directions and then in
another.

Swan discovered that the effect of centrifugal force
“acting to throw the liquid particles out of the intended
aggregate line of travel, and thereby separating the mix-
ture constituents,’’ gave unequal distribution in the prior
art manifolds. His method proposes, pg. 2, line 23, first

ae
48

1148 Report of the Special Master

patent, ‘‘the liquid particles in the air fuel mixture in-
stead of being thrown in a direction not intended, as at
some curve, are influenced to move in a proper direction
and thereby the mixture will be delivered to. all the eyl-
inder ports substantially alike.’’ Thus by the effects of
centrifugal force and inertia, he claims for his method
the successive steps of moving the mixture from one
point to another, i.e., through the T with its turbulence
or its adjacent eddies, and thus from one stage of re-
mixing to another. Swan uses those forces for his new
purpose, but does not seek to claim the use of old and
well-known force. Thus with such known forces as the
suction from the engine and the inertia of the fuel par-
ticles, Swan discovers a method by which substantially
equal distribution of the constituents of the fuel mixture
was effected between the several cylinders of the engine.

So that in this case, as in New Fermentation Co. v.
Maus, 122 U. S. 413 (1887), where a similar argument
was made, this is a mode of treatment to produce a given
result and the patent requires certain things be done
with certain substances and in a certain order, and is
therefore a process or art.

The Defense of Belated Amendment Which Seeks
to Enlarge the Scope of the Application: Counsel urge
that Swan described and claimed the square section mani-
fold and disclaimed the round section in his first applica-
tion. Yet he illustrated a manifold round in cross-section
and described and claimed such a manifold. Disclaimers
are in the nature of estoppels and only apply where the
intention to abandon is clear and unequivocal. Nothing
less will prevent the resort to the doctrine of equivalents.
Winans v. Denmead, 15 How. 330 (1853).

In considering the disclosure of the original Swan
application, it is to be remembered that patent specifica-
tions and other disclosures are directed to those skilled
in the art. Without further considering the measure-
ments, figures and descriptions of the patent, it suffices
to say that it does not matter whether the Swan applica-
tion shows a round manifold or not, so far as this case
is concerned. Professor Cooley has stated that the mak-
ing of the manifold round instead of square would not
make any difference (Trans. 1180). Even if the patent
only showed a square manifold, infringement would ex-
ist under the doctrine of equivalents. Societe v. U. S.,
224 U.S. 309, 328 (1912).

- 49

Report of the Special Master 1149

That the Swan method was disclosed in the original
application was held by Judge Westenhaver and by the
Commissioner in the General Motors cases, and recently,
in considering the Commissioner’s report in the second
General Motors case, Judge Hahn said on this subject :

‘“‘It is enough that the language at pages 243
(14-25) and 244 (11-16) suggest a principle or meth-
od of operation, (or a sufficient basis for amendment)
not dependent upon specific form of device, and no
language of the specification directly or by impli-
cation excludes the possibility that the essence of
Swan’s invention may be a principle or method of
operation not dependent for its successful operation
upon any particular embodiment as to form.’?

The authority urged by counsel, Railway Co. v.
Sayles, 97 U.S. 554 (1878), holds that new matter could
not be added which was at variance with the original ;
in this case the holdings have been that the method was
disclosed in one original application.

That a patentee may amend his specification from
time to time, making no additions in substance or ma-
terial variations from the original disclosure, is well
established; Michigan Carton v. Sutherland Paper Co.,
29 Fed. (2d) 179 (C. A. 6, 1928), where Judge Knappen
said, at pg. 184:

“The rule is that insertions by way of amend-
ment in the description or drawing, or both, of a pat-
ent application do not invalidate the patent, if they
are only in amplification and explanation of what
was already reasonably indicated to be within the
invention; and this rule applies with special foree
where the insertion was required by the Patent Office.
General Electric Co. v. Cooper, ete., Co., (C. C. A. 6)
249 F. 61, 64, certiorari denied 246 U. 8. 668, 38S. Ct.
336, 62 L. Ed. 930. And if an inventor comes to bet-
ter understanding of the principles of his invention
while his application for patent is pending, an amend-
ment of his claim to conform thereto does not intro-
duce any original matter nor enlarge his invention,
and is within his legal rights. Cleveland, etc., Co. v.
Detroit, etc., Co., (C. C. A. 6) 131 F. 893, 857, et seq.;
Proudfit Co. v. Kalamazoo Co., (C. C. A. 6) 230 F.
120, 141.”

It hardly comes with good grace for a member of
the National Automobile Chamber of Commerce to

50

1150 Report of the Special Master

charge that the plaintiff has interfered with their mani-
folding business. The record shows that when manufac-
turers were struggling with the old island and other types
of manifolds, that Swan showed them the advantages of
the Swan manifold which would handle a wet mixture
better than had ever been done before. At expense to
plaintiff, defendant was taught the merits of the Swan
invention and manifolds were ‘‘tailored’’ to operate on
defendant’s engines. And now, plaintiff is entitled to
protection for its patent, from infringers who have
copied the Swan manifold.

File Wrapper Contentions: Defendant urges that
the essence of the invention as Swan originally con-
ceived it lay in a square or rectangular cross-section
manifold with flat bottom, flat ceiling and flat surfaces
against which the mixture could impinge, with the avoid-
ance of liquid accumulations and the absence of curves,
both in cross-section and in the direction of the flow of the
mixture. Defendant asserted similar limitations for
plaintiff in the General Motors cases. Yet on such broad
disclosure in the first instance Swan should not now be
estopped to assert the broad construction of the present
patented claims. Examination of the Swan file wrapper
could not lead one to believe that Swan intended to limit
himself as defendant urges. Of the meaning and effect
of patent claims, Walker on Patents, 6th Ed., See. 219,
says:

“To use the words of the Supreme Court, ‘the
claims measure the invention,’ and ‘apprise the

9°99

public of what is still left open to them’.

and in Section 234:

‘‘Likewise a patentee of a manufacturer is not
restricted to a construction which he describes in the
specification merely as ‘preferable’ unless specifi-
cally limited by the claims.”’

If, as defendant urges, the essence of this invention
was the square manifold or flat bottom, the avoidance
of curves and the avoidance of liquid accumulations, such
issue as to supposed limitations was disposed of in each
of the General Motors cases and has heretofore been
commented upon.

Method Claims of the First Swan Patent are not
Anticipated: Defendant urges that method elaims 4, 5
and 8 are anticipated in the Murray & Tregurtha mani-

_—

Report of the Special Master 1151

fold if these claims be construed to cover defendant’s
‘Special Six’? manifold which is asserted to be identical
in shape with Murray & Tregurtha, also method claims 9
and 10 are urged as literally anticipated by Murray &
Tregurtha.

The burden of proof that the prior art devices of
Murray & Tregurtha operate like Swan and realize the
Swan method of operation is ever upon the defendant.
The rule is that the burden rests upon the defendant to
prove that the prior art device operates like the patented
device or like defendant’s device. Coffin v. Ogden, 18
Wall. 120 (1870).

Defendant cannot escape this issue for, as stated by
Judge Westenhaver in Fulton v. Bishop & Babcock, 284
Fed. 774 (1922), and again in the 6th Cireuit, 17 Fed.
(2) 999 (1925) in the same case, Bishop & Babcock v.
Fulton, 37 Fed. (2) 293 (1930), the second syllabus is:
‘‘Patentee of process is entitled to have patent con-
strued broadly enough to cover the meritorious thought
of his process.’? The opinion is by Judge Moorman, and
for this rule he relies upon Tilghman v. Proctor, 102 U.S.
707, 728 (1880), and Fibel Process v. M. & O. Paper Co.,
261 U. S. 45, 63 (1923).

Defendant relies upon the rule of Knapp v. Morss,
150 U. S. 221, 228 (1893), that what would infringe if
later would anticipate if earlier. Judge Westenhaver
thought that the Matheson manifold was the nearest to
the Swan, and the proof is here lacking that the Murray
& Tregurtha manifold is identical with Swan in respect
to performance, mode of operation and achievement.
Defendant also urges that the 20th Century manifold
and the Fiat also anticipated the method claims, and
what has been said here as to Murray & Tregurtha ap-
plies equally as to these.

PRIOR ART.

All of the prior art relied upon in this case was
relied upon and considered in one or both of the General
Motors cases. The conclusion there reached was that

The Swan Patent is a Pioneer in Manifolding.

The manifold art was illustrated and discussed in
the articles by Mr. Tice in Motor (plaintiff’s Ex. 37) for
April and May, 1911, and the Swan principle of manifold-
ing seems to have met the difficulties experienced by in-
ventors and manufacturers of gasoline engines. Gordon

a

1152 Report of the Special Master

Form Lathe Co. v. Walcott Machine Co., 32 Fed. (2) 55
(C. A. 6, 1929), Byers v. Keystone Driller, 45 Fed. (2)
283 (C. A. 6, 1930).

The opinion of Judge Westenhaver, with the af-
firmance of the Court of Appeals, states the rule that
patents are to be construed according to the order of im-
portance and the degree of the advance in the invention _
patented. Any doubt as to the scope or the effect of the |
patent should be resolved in favor of the patentee, with
increasing liberality where the patent is basic and marks
a great advance in the art, as Mr. Chief Justice Taft said,
in Eibel Process v. M. & O. Paper Co., 261 U.S. 45 (1923,
pg. 63):

‘In administering the patent law, the Court
first looks into the art to find what the real merit of
the alleged discovery or invention is and whether
or not it has advanced the art substantially. If it
has done so, then the Court is liberal in its construe-
tion of the patent to secure to the inventor the re-
ward he deserves * * * the application of the rule
‘ut res magis valeat quam pereat’ has been sustained
in so many eases in this Court.’’

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bo

The prior art relied upon consists of

(1) Patents in Exhibit 398, 29 in number, which
were cited by the Patent Office Examiner in one or other
of the Swan applications and were relied upon and ex-
hibited to the court in the first General Motors case.

(2) Other Patents and Publications, in the second
General Motors case, which included patents to Sundh
(defendant’s Ex. 394) and Koken & Pichl (defendant’s
Ex. 395).

(3) Manifolds Shown in Exhibit 380, 6 in number,
not shown in patents, all of which were in the second
General Motors case and some in the first case. Consid-
ering these prior art items, all of the patents in the first
eroup relied upon are paper patents which have had no
commercial use (Trans. 1582). While a paper patent
may anticipate, yet if it never found commercial favor,
it has little foree and credit on the question of non-in-
vention. Republic v. Youngstown, 272 Fed. 386 (C. C. A.
6, 1921), Wellman v. Cramp, 3 Fed. (2) 531 (C. A. 6,
1925), and Gordon v. Walcott, supra.

From the large number of manifolds used, many are
illustrated in the Tice articles, some in Exhibit 380, and

Report of the Special Master 1153

Matheson is shown in both the Tice articles and in Ex-
hibit 380. The record does not show that any of the
6-cylinder manifolds of the Tice articles or of Exhibit
380 were in production when Swan entered the field, ex-
cept perhaps the Fay & Bowen and the F ‘anklin, which
manufacturers later adopted the Swan manifold. Of the
users of 6-cylinder manifolds illustrated by Tice, only
three, Franklin, Pieree Arrow and Oldsmobile were still
in business at the time of the trial (Trans. 1059) and
these three became licensees adopting the Swan manifold
(Trans. 31).

The record fails to show that anyone, except de-
fendants contesting the Swan patent, has ever claimed
that the prior art manifolds employed the Swan mode of
operation. In this ease Mr. Tice testified that none of
the manifolds in defendant’s Exhibit 380 employed the
Swan mode of operation and that none of them realized
equal distribution (Trans. 1084).

Since the manifolds of defendant’s Exhibit 380 are
conceded by the experts of both parties to be those near-
est to Swan, all evidence of other manifolds in patents
or publications loses its probative effeet if those of Ex-
hibit 3880 fail as to prior art.

The rule is that the burden is on the defendant to
show that the prior art device operated like the patented
device and performed its functions. Defendant must
show that the prior devices ‘t produced are ‘‘eapable of
producing the results sought to be accomplished,’’ as re-
quired in Coffin v. Ogden, 18 Wall. 120 (1870). Defend-
ant cannot eseape this issue for, as stated by Judge Wes-
tenhaver in Fulton v. Bishop & Babcock, 284 Fed. 774
(1922), and again in the 6th Cireuit Court of Appeals, 17
Fed. (2) 999 (1925), in a Per Curiam opinion on rehear-
ing, pg. 1007 (1927), anticipation is not effected by an
arrangement which was not adopted and used to perform
the funetion which was performed in the patented inven-
tion. So, as the Supreme Court said in Coffin v. Ogden,
_ Supra, “the burden of proof is upon defendant to prove
these things, and every reasonable doubt should be re-
solved against him.’’ Defendant must prove that prior
devices were capable of and adopted or used to perform
the Swan functions or embody the Swan principle of op-
eration. The record is clear, that if any of the mani-
folds of the prior art ever did operate like Swan or
realize equal distribution, such was accidental and unree-
ognized.

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1154 Report of the Special Master

That the Swan method might have been performed
by one or another of the prior art manifolds if operated
under certain conditions is no answer; for the rule is well
established that a method or process cannot be anticipated
by a device in which it might have been performed. Car-
negie Steel Co. v. Cambria Steel Co., 185 U.S. 403 (1902) ;
Nestle-LeMur v. Eugene, 55 Fed. (2) 854 (C. A. 6, 1932).

Murray & Tregurtha Manifold. Experts for both
parties in this case agree that this manifold comes near-
est to looking like Swan and when placed on a 3-eylinder
engine as it was used, ought to come nearer than others
to doing what the Swan manifold does on a 6-eylinder
engine. The experts also agree that fuel distribution to
a 6-cylinder engine is more difficult than distribution toa
3-eylinder engine (Trans. 1179), so if Murray & Tregur-
tha solved the problem that Swan solved, with the 3-cylin-
der engine, the Murray & Tregurtha manifold would not
necessarily anticipate one who solved the more difficult
problem of the 6-cylinder engine. Tests of the Murray &
Tregurtha glass manifold (defendant’s Ex. 382) failed to
show equal distribution on a 3-cylinder engine, so there is
no need for the court to speculate as to what could be done
on a 6-eylinder engine. It would seem to be sufficient to
say that the Murray & Tregurtha manifold cannot be held
to anticipate Swan because there was no problem of dis-
tributing the mixture at the end of each of the branches.

Fiat manifold. Of the 6-eylinder manifolds, Mr.
Tice as defendant’s expert, picked the Fiat manifold as
best of all. This is based on the testimony as to a Fiat-
manifold-Greuter-carburetor device which is claimed to
anticipate Swan. The Fiat manifold (defendant’s Ex.
272) with the testimony of Rowan (Trans. 1480-81, 1490)
shows efforts to correct fuel distribution, failure, and that
the Italian experts were called to remedy trouble with
the manifold, which efforts were unsuccessful. The most
that ean be said for the Fiat manifold is that, as modified
by the witness, it can only rate as one of several prior
efforts and failures to do what Swan did.

Matheson Manifold. In the first General Motors
‘ase Judge Westenhaver picked Matheson and Peerless
as the best of the manifolds in the prior art, following
the testimony of plaintiff’s expert, Mr. Sessions, to the
same effect. Also in the second General Motors case
defendant’s expert, Schwartz, considered the Matheson
manifold to be the best.

The Matheson manifold is also one of the 76 mani-
folds illustrated in the Tice article in which he says that

.

=

Report of the Special Master 1155

they fail to effect equal distribution, and commented
upon the inability of the devices of the then existing
manifold art to equally distribute the fuel mixture. The
faults of the Matheson manifold were testified to by
several witnesses. Dean, who had operated a Matheson
ear, said the center pair of cylinders, 3 and 4, fouled and
were apparently getting more mixture than others
(Trans. 1395-6). Parker, who had operated a Matheson
ear with Matheson manifolds in 1911, said the motor was
never smooth or flexible and missed when running slow
(Trans. 1400). Greuter, who had been a Matheson en-
gineer and knew the Matheson manifold, said that on
tests he had made the cylinders connected to the center
branch would invariably get more gas than the end ones
(Trans. 1402). The Matheson manifold, like the others,
must rate as a prior effort and failure instead of a device
anticipating the Swan invention.

Pierce Arrow Manifolds. Two types of Pierce Ar-
row are relied upon (defendant’s Ex. 252), and the
modified Pierce Arrow shown in Exhibit 249 (also
shown in Ex. 380).

These manifolds were used upon one of the finest
and highest priced cars, its engineering and equipment
being considered of the highest order. The manifold
shown in defendant’s Ex. 251 was unsatisfactory, and
witnesses were called to show how the standard Pierce
Arrow manifold was improved, yet the Pierce Arrow
manifold as modified is not considered as close to Swan
as Matheson or Peerless by any of the experts. These
also must be regarded as a prior effort and failure before
the advent of Swan.

Fay & Bowen Manifold. This manifold (defend-
ant’s Ex. 229) was also presented in the trial in the Gen-
eral Motors case, and the proof it offered was considered
by Judge Westenhaver only as cumulative. This mani-
fold was also used on marine or other 6-cylinder engines,
and its performance was inconsistent with any claim of
the Swan principle or result, for Ware said “the Swan
manifolds were very much better’? (Trans. 1438, 1442).
This also represents a prior effort and failure.

New York Yacht & Engine Manifold (20 Century
Manifold). This is shown in defendant’s Exhibits 380
and 268. Testimony is meager and fails to show that it
realized the Swan principle or the Swan results. It ean
only be classed as a prior effort which does not anticipate.

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1156 Report of the Special Master
INFRINGEMENT.

The Nash Company, like many other automobile
manufacturers, had been using the island type of mani-
fold for several years (Trans. 404). After the plaintiff
conducted experiments at the Nash plant, showing the
improvement to be effected by the Swan manifold over
the island manifold, Nash adopted the manifold which is
claimed to be the Swan manifold, there being this dif-
ference, the manifold as adopted was of round cross-see-
tion instead of square, which Professor Cooley says
makes no difference in operation. This manifold became
standard equipment with Nash and defendant has never
gone back to the island manifold since the change was
made,

That the manifolds adopted by Nash (plaintiff’s

Nxs. 41-A, 42-A, 43-A, 45-A and 46-A) and disclosed in
drawings (plaintiff’s Exs. 40 to 46 incl.) operate like and
eet the same results as Buick manifolds (plaintiff’s Exs.
9, 10 and 11), which Buick manifolds were held to in-
fringe in the General Motors suits, is the testimony of
Engineer Wahlberg, Vice-President in charge of En-
eineering of the Nash Motors Company (Trans. 418, 419,
427, 428). The qualifications of Engineer Wahlberg are
not in question. A strong case is one which can be proved
by cross examination of opposing witnesses, said Mr.
Chief Justice Taft, Eibel Process Co. v. M. & O. Paper
Co., 261 U.S. 45.

Such result is further confirmed by the testimony of
plaintiff’s experts, and the outdoor tests which included
economy, hill-climbing and acceleration tests. These are
the standard tests accepted by the automobile and in-
ternal combustion engine industry for testing manifolds,
carburetors and equipment to determine operation and
relative performance. The challenge of the defendant
is that such standard tests should now be discarded in
favor of the laboratory tests as conducted by Mr. Tice
on manifolds driven by a dynamometer and tests with a
Cox indicator.

The broad claims in suit, Patent No. 1,536,044,
claims 4, 5, 8, 10, 20, 22 and 23, are infringed for the same
reasons that they were infringed by the manifolds in the
two General Motors cases.

The method claims of the first patent cover what
Judge Westenhaver characterized as ‘‘the new and
original principle of operation’? which Swan invented.
Some of these claims cover a 3-step method and some of

eee ee Ne eee ee ees

—
57

Report of the Special Master 1157

them a 2-step method, and some are limited to a six-
cylinder engine. Claim 10 is typical, is limited to a six-
cylinder engine, employs a 3-step method, which are the
characteristics of the defendant’s manifolds charged to
infringe. The claim may be analyzed into various steps,
as follows:

(1) ‘‘A method of distributing a fuel mixture to a
six-cylinder engine which includes moving the
mixture to a zone through which it is distributed
in three directions in a plane transverse to said
movement,

(2) subjecting said movement to forces tending to
distribute charges in alternating directions and
in uniform character in all of said directions,
and

(3) further subjecting the movement of the mixture
towards adjacent pairs of cylinders to forces
tending to qualify the charges for said pairs in
substantially equal portion of wet mixture con-
stituents.’

The opinion evidence and the tests of plaintiff show
that defendant’s manifolds employ all of the steps re-
cited in this claim, and defendant denies that the Swan
manifold so operates.

Notwithstanding defendant urges that the claims
are invalid because the method claimed is not performed
by the Swan manifold, plaintiff must prevail on this is-
sue which has been considered in the discussion of the
law on the subject.

Improved Performance of Infringing Device, No De-
fense. It would not avail defendant if it had established
that the Swan manifold with the round cross-section per-
forms better than the Swan manifold with a square cross-
section. This is only a matter of degree and the same
claims were made by witnesses Sage and Bower in the
General Motors cases as to the Buick manifolds there
held to infringe.

The performance and operation of the Buick mani-
folds tested with the Swan was so clearly alike that they
could not be fairly distinguished (Trans, 128-157 and
187-88), which is also supported by the admission of wit-
hess Sage as quoted by witness Pelton (Trans, 1229),

The rule is that where there is a mere improve-
ment on the device, that infringement can never be

58

1158 Report of the Special Master

avoided by thus improving the patented device and mak-
ing it work better. This rule is stated by Mr. Chief Jus-
tice Taft in Temco v. Apco Co., 275 U.S. 319 (1928) at pg.
328, as follows:

“Tt is well established that an improvement can-
not appropriate the basic patent of another and that
the improver without a license is an infringer and
may be sued as such.”’ Cochrane v. Deaner, supra,
and other cases.

DEFENSE OF LACHES.

Defendant urges that plaintiff has been guilty of
laches in the prosecution of this suit filed late in 1926 and
brought to trial in September of 1932. Before consider-
ing the application of such principle to this patent cause,
a review of the steps taken in the litigation over the pat-
ents in suit seems necessary.

The bill of complaint in this cause and the petition
in the first General Motors case were both filed in No-
vember, 1926. The General Motors case was heard by
Judge Westenhaver in April, 1927, and judgment entered
on September 27, 1927; decision in the Court of Appeals
was had in June, 1930, and rehearing denied November
5, 1930, after which Writ of Certiorari to the United
States Supreme Court was denied January 12, 1931.

By stipulation of counsel this case was dropped
from the trial calendar in May, 1927. The second patent
in suit was issued in July and the plaintiff restored the
ease to the trial calendar, filing a supplemental bill of
complaint in September, 1927.

Following Judge Westenhaver’s decision in the Gen-
eral Motors ease, on November 12, 1927, counsel moved
to reopen the General Motors case, claiming newly dis-
covered evidence in the Murray and Tregurtha matter,
and on the 18th of November amended its answer in the
‘ase at bar by adding such new matter to its defenses
here.

This case was on the calendar ready for trial; par-
ties stipulated parts of the General Motors record as ap-
pears by plaintiff’s Ex. 25; and any part of the General
Motors record that either party desired was to be used
in this ease. After Judge Westenhaver’s death in 1928,
by consent of counsel the case was again dropped from
the trial calendar during the appeal of the first General
Motors case and the case was not reinstated until Oc-
tober of 1929.

w—

59

Report of the Special Master 1159

On November 18, 1929, his Honor, Judge Jones,
ordered this case be passed pending the decision of the
Court of Appeals in the General Motors case, and the
first General Motors case was concluded by the denial of
Writ of Certiorari in January, 1931.

Meanwhile the second General Motors case had
been filed and was set for hearing April 15, 1931, and
awaiting the outcome of this second case, counsel stipu-
lated an extension in the case at bar until May, 1931.
Also in May defendant amended its answer to inelude the
20th Century manifold as used by it and by General :
Motors as an alleged prior use. Also, defendant offered :
two more amendments in May, 1931, regarding Fiat and 5
other manifolds, to which amendments plaintiff made no
objection but asked delay of trial until the newly as-
serted defenses could be investigated. Counsel there-
upon agreed that the case be dropped from the trial
calendar, ‘

Trial of the second General Motors case began in the
Fall of 1931 and the case was submitted to the Commis-
sioner late in the Spring of 1932. After the testimony
was concluded in that case, the case at bar was reinstated
on the trial calendar and the order of reference to the
Master bears date of May 26, 1932. After the reference
the Master stated to counsel for both parties that he
would not proceed with the trial of this case until the
General Motors case then on hearing was concluded. The
Commissioner’s report was filed with the District Court
on August 15th, and after several conferences with coun-
sel about proceeding to trial, the first testimony in this
case was taken on September 28, 1932.

Counsel for defendant rely on the leading case of
Johnston v. Standard Mining Co., 148 U. S. 360 (1893),
where it was stated that the mere institution of a suit
does not relieve from the charge of laches and that if
plaintiff fails to diligently prosecute the action that the
consequences are the same as though no action had been
begun.

Counsel further rely upon Kellogg Switchboard &
Supply Co. v. Dean Electric, 231 Fed. 197 (1915), where
Judge Clarke cited Johnston v. Standard Mining, supra,
and stated that plaintiff had shown such lack of diligence
in the prosecution of its claim that it deserved no relief
ina Court of Equity, and further stated that ‘laches
is a defense which can be made without any pleading to
support it.’’ There seems to be no analogy between the

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60

1160 Report of the Special Master

facts of that case and the case at bar for there the plain-
tiff did absolutely nothing for a period of ten years. In
this case the plaintiff has been busy prosecuting matters
concerning this patent and defendant has acquiesced in
delays except the delays which have followed upon Court
orders.

Defendant has not pleaded laches as a defense and
has offered no support for such defense, whether pleaded
or otherwise, and under the new equity rules it seems is
not entitled to raise a defense not pleaded. Walker on
Patents, 6th Ed. See. 632, pg. 728:

‘The defense of laches could formerly be made
in a demurrer, or in a plea, or in an answer, or in
an argument on the hearing without any pleading to
support it. Of course now this defense can be made
only by answer or motion to dismiss accordingly as
the situation permits.”’

The rule also seems to be that a mere lapse of time
alone does not constitute laches, 48 Corpus Juris, 331.
Accompanying the lapse of time in the case at bar has
been a litigation against others for royalties under li-
censes concerning the patents in suit. While it is true
that the validity of the patents could not be attacked in
such suits, the attack made by the defendant there was
based upon the same prior art and the same kind of de-
fenses raised in the ease at bar. Delay in the prose-
cution of other suits for infringement of the same patent.
48 Corpus Juris, 333, citing Plecker v. Poorman, 147 Fed.
528 (C. C. Ohio, 1905), U. 8. Mitis v. Detroit, 122 Fed.
863 (C. C. A. 6, 1903).

Laches like any other equitable defense must be
maintained in equity and good conscience. Here the de-
fense is admittedly maintained by the National Automo-
bile Chamber of Commerce, of which General Motors
Corporation, defendant in the prior cases has been a
member prior to the beginning of all litigation on these
patents (plaintiff’s Exs. 57-8). The several members
of the Chamber contribute to the defense of patent suits
which are defended by that body. Reo v. Gear Grinding,
42 Fed. (2) 965 (C. C. A. 6, 1930).

Such being the relationship between General Motors
and Nash Motor, the real defendant here, both being
members of the Chamber, plaintiff should not be penal-
ized and this defendant cannot be heard to take advan-
tage of a situation created by one of its privies, where

—_

61

Report of the Special Master 1161

plaintiff elected to pursue the General Motors and estab-
lish its rights on issues which also arise in this litigation.
In Frank V. Smith v. Pomeroy, 299 Fed. 544 (C.0.A4. 2
1924) Judge Manton says at pg. 547:

“* * * that the appellant was exeused for the
delay in suing for infringement by reason of the
previous Yates litigation, taken in connection with
the concurring circumstances above described. We
regard these facts and circumstances as justifying
an appeal to the conscience of a court of equity as
a sufficient excuse for the delay. Such delay should
not work to the advantage of one who has fraudu-
lently and deliberately infringed, and who has stood
behind and actively participated in a stubborn at-
tack upon the validity of the patent by another liti-
gant. They should not profit by the appellant’s help-
less condition, nor be permitted to escape from the
results of their wrongdoing.’’

CONCLUSION.
This case for the first time tests the validity of the

Swan patents. In the second General Motors case the
Commissioner concluded his report with this statement:

‘Judge Westenhaver, upon mature deliberation,
found that Swan sought to, and did solve the prob-
lems in the existing art in manifolds by introdue-
ing a new and original principle of operation. He
found the gist of the Swan invention to consist in
bringing the gaseous mixture from the carburetor
to the header in perpendicular or straight lines, then
abruptly changing its course at right angles in the
header, and then again changing its course at right
angles from the header into the branches, Having
before him the judgment and the opinion in the for-
mer case, with the affirming opinion on appeal by
the 6th Cireuit Court of Appeals, the Commissioner
would be presumptuous, indeed, to attempt to set
them aside, or even not to give full effect to these
judgments. ”’

Notwithstanding the new proof offered in this case,

the so-called Tice tests which have shown better the phe-
nomena of the action of forces in a manifold than it has
ever been shown before, the Swan patents are found to
be improvements giving ‘‘commercially equal distribu-

62

1162 Report of the Special Master

tion,’’ if not ‘‘scientifically equal distribution,’’ and are
entitled to the protection of the court.

Many protracted hearings have been held in this pro-
ceeding and the testimony has covered a wide range.
Tests were made which the Master attended and there
observed the operation of manifold apparatus, and the
results of the tests are offered in evidence. Some of the
evidence has been received over objection, so that the
court may have before it all of the claims and the proof
offered by both parties. Claims of new issues in this case,
supported by new evidence, have been heard at length by
the Master, for it was believed by all parties that a full
and complete hearing should be had in this proceeding.

The Master reports that on the 30th day of June,
1933, he handed draft copies of this report to counsel
and asked that errors and corrections to be made be
pointed out by counsel by July 12th, 1933, that the Mas-
ter might consider and make such corrections insofar as
the Master believed proper and in keeping with the views
as expressed in the report. Such suggestions have been
received and corrections made in the report, and there-
after, again on July 25th, 1933, draft copies of the cor-
rected report were handed to counsel with the request
that errors and corrections to be made be pointed out
by August 3rd, 1933, and such suggestions have been
received and the corrections made. Two copies of this
report have been furnished to counsel for each party.

Herewith I hand up for your Honors the following:

(1) Original files and papers from the Clerk
of the Court.

(2) Stipulation.

(3) Transcript of testimony, together with
plaintiff’s exhibits Nos. 1 to 168, inclusive, and de-
fendant’s exhibits Nos. D-201 to 410a inclusive.

(4) Briefs of Counsel.

(5) Suggested Findings of Fact and Conclu-
sions of Law submitted by counsel.

(6) Report of Special Master.
Respectfully submitted,

Wma. B. Woops,
Special Master.

August 21, 1933.

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sey yw “Bunsed sopusjA> uma & jo Sys0d pase
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1339%3A3. Public record. Not legal advice.