Transcript of Record — Abercrombie & Fitch Co. v. Baldwin

(25,050)

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1916.

No. 323. ©

ABERCROMBIE & FITCIL COMPANY AND JUSTRITE MANU-

FACTURING COMPANY, PETITIONERS,

v8.

FREDERIC E. BALDWIN AND JOIN SIMMONS COMPANY.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT.

INDEX.

Original. Print

Sk ENE ON ee rr eee e eee ae ee a l

Transcript of record from the district court of the United States

, for the southern district of New York... ......0e.eeee eee eee 5 1

Meeanaed Hill of COMPIBINE...g 00:0 occsc ccd ccocvcescccccsene 1 l

RN ANNO 8 tr eee oN ee ecu ean Oe ees ce ek Kaen 6 4

Stipulation as to adoption of answer, &C.......... 6602 00e 18 10

Notice and petition of John Simmons Co. to intervene..... 19 11

Notice and petition of Justrite Manufacturing Co. to inter-

EAC per Pee eee ere ee ene eee ny eee ey ee ee 25 13

i cr nk cae bh we ce meade eh Careers Ge 28 15

Testimony of Frederic FB. Baldwin......c.ccccesvcssecces 29 16

eeemmony OF Alfred W. PROCGOR...o.s ccs ccccccvdeseeseres 47 26

REPRE TRL EE TERY EC ET EE TT Ore 7 42

OGMOMY OF MIOWOTO BE. OOK... ccc ccc cccccssecescecwcces 76 42

Peemony Of Aupic L. FANSOD. oi ccc cecceccccesebcesecs 119 65

I C006 si cibecscecectcbspeteheedeats chveevtccas: “ae 74

re

4 Jupp & DeTWEILER (INC.), PRINTERS, WASHINGTON, D. C., NovEMBER 4, 1916.

Ty

INDEX,

Original. Print

Testimony of Alfred Proctor (recalled) .................4. 136 75

Seer Gr PU FA SP RID on ss ne sisi Seeks twee ne 172 5

ESE ee ey ee eee LE eee ei 177 97

Nd lace alan ward Wik Rew Wana Via did Ska -0N wade ic whee op h0 8's 192 105

Petition for appeal and order allowing appeal...... cana 194 107

ERE ae ee Cee eee 197 108

Sana warnawenn y@eupae 64:55 tere ree Ee eee 200 109

INES CINNINIE UNO 5055 cy 0:0 0:00:00 0.8 800s 00008 201 110

Stipulation concerning exhibits.................ceseecees 202 110

Seipeintion Waiving CemtiMention. «6.0... ciiccccccseessnccs 204 111

as cia Ga uch attend nb lacaeha hts a hse ws we WSs 8 we 205 112

Complainants’ Exhibit 1—Patent in suit No. 13542....... 2 112

3—Stipulation of facts. &e........ 211 117

5—Judge Orr’s decision, Baldwin *

O68: Grier Bros: 0.65.00. 000% 213 118

&8—RBaldwin direction sheet....... 225, 124

13—Justrite direction sheet........ 226 125

16—Proctor’s sketch, Handshy first

je ee 227 125

17—Proctor’s sketch, Handshy sec-

ond modification ........... 228 165

Defendants’ Exhibit C—German publication .............. 229 126

D—File-wrapper and contents of orig-

inal patent No. 821,580......... 234 128

Commissioner's certificate ....... 234 128

Extracts from examiner’s book... 235 129

Petition and specifications........, 236 130

Report of cxaminer. .....000..045 248 137

Amendments to application of

Frederic FE. Baldwin, February

ab oko in ces ous Oe eee 250 138

Exhibit A—Construction and

operation ...... 256 14i

Exhibit B—Drawings ....... 257 141

Letter, Kerr, Page & Cooper to

Commissioner, February 17,

ee eer rer Ter re - 260 142

Report of examiner on amended

NIID oor sos: euins taeda on 261 142

Letter, Kerr, Page & Cooper to

Commissioner, March 6, 1905... 262 148

Report of examiner op amendment

oo a a 263 144

Letter, Kerr, Page & Cooper to

Commissioner, January 17,1906. 264 144

Amendment to application, March

| ere veer aes his . 265 145

Report of examiner on amend-

ment of March 12, 1906......... 269 147

Amendments to application, March

ee ee ae siasibs 5a) Ree 147

Opinion, Rogers, J..........

RA es See eee

INDEX.

iii

Original. Print

Notice of allowance of patent,

MOA D2 SOOO 85.5 suid eck ease 271

Letter. Kerr, Page & Cooper to

Commissioner, May 2, 1906..... 272

Letter, Commissioner to Bald-

Win, DAY By AOS oisced sin sivenv aes 275

Patent No. 821,580, May 22, 1906. 274

GM RERER CORGHLENES S Re ee cutee ee

SRAaidN «ois sete 6's ace iwiein we dei ee

openers <5 Raita ace esineuts 296

rsh eo wre eh i6 hd bie pie Svetans wALK Mesos. & 6 aoe 297

148

149

149

10

15

165

165

166

ATAU BOND ce PRIA

q

Carte, Kd

“a ?

ABERCROMBIE & FITCH CO. ET AL. VS. FREDERIC F. BALDWIN ET AL. 1

Ml United States Cireuit Court of Appeals, for the Second Cir-

cuit.

Frevertc BE, Batpwin and Joux Simmons Company, Complain-

ants-Appellees,

against

ABERCROMBIE & Fircn Company and Justrire MANUFACTURING

Company, Defendants-. ppellants.

TRANSCRIPT OF RECORD.

Appeal from the District Court of the United States, for the South-

ern District of New York.

United States Cireuit Court of Appeals, Second Circuit. Filed

April 22, 1915. William Parkin, Clerk.

1 Amended Bill of Complaint.

United States District Court, Southern District of New York.

In Equity.

Freveric E. BaALpwin and Joun StmMons Company, Intervenor,

Plaintiffs,

vs.

ApercrombBle & Fircu Company, and Justrire Mro. Company,

Intervenor, Defendants. .

The plaintiff, Frederic E. Baldwin, for his amended bill of com-

plaint alleges:

First. That the plaintiff Frederic E. Baldwin, is a citizen of the -

State of New York, and resident and inhabitant of the Borough of

Manhattan, City, County and State of New York; that the plaintiff,

John Simmons Company, is a corporation organized and existing

under the laws of the State of New York, and a resident and in-

habitant of said Borough of Manhattan; that the defendant, Aber-

crombie & Fitch Company, is a cerporation duly organized and

existing under and by virtue of the laws of New York and a citizen

of said State, having its principal and a regular and established

place of business in, and a resident and inhabitant of said Borough

of Manhattan, City, County and State of New York: and that the

Justrite Mfg. Company is a corporation duly organized and existing

under and by virtue of the laws of the State of Illinois, a citi-

zen of said State having a regular and established place of

business in, and a resident and inhabitant of, Chicago,

County of Cooke, in said State of Tlinois, f

1—323

= Ee HNAN HOE SIE RINE RELA MEET DIET TES TI IDET: tS EY IME LOREAL ENE) ED

vb a aad ) " 7

PREIS ERS AUREL I RLY MONS AINA OL EN

ABERCROMBIE & FITCH CO, ET AL. VS.

Second, That the jurisdiction of this court depends upon the

patent laws of the United States,

Third. That plaintuf (frederic EE. Baldwin) being, prier to O¢

tober 18, 1899, the first, original and sole inventor of certain jm-

provements in Acetylene Gas Lamps net known or used by others in

this country before his invention or discovery thereof, and not pat-

ented or described in any printed publication in this or any foreign

country before his invention or discovery thereof, or more than two

vears prior to his said appiication, and which had not been for more

than two years prior to said application in public use or on sale in

this country, and which had not been first patented or caused to be

patented by him or his legal representatives or assigns in a foreign

country upon an application filed more than seven months prior to

the filing of said application in this country for said Letters Patent,

and which had not heen abandoned. filed an application for Letters

Patent for the said invention and having complied in all respects

with the requirements of the law, Letters Patent of the United States

were on the 28th day of August, 1900, duly granted to him bearing

No. 656.874.

Fourth, That said plaintiff being. prior to July 15, 1903, the first,

original and sole inventor of certain improvements in Acetylene

Gas Generating Lamps which had not been known or used

3 by others in this country before his invention or discovery

thereof, and not patented or described in any printed publica-

tion in this or any foreign country befere his invention or discovery

thereof, or more than two vears prior to his said application, and

which had aot been for more than two years prior to said appliea-

tion in public use or on sale in this country, and which had not been

first patented or caused to Le patented by him or his legal represen-

tatives or assigns In a foreien country upon an application filed more

than twelve months prior to the filing of said application in this

country for said Letters Patent. and which had not been abandoned,

filed an application for Letters Patent for the said invention and hav-

ing complied in all respects with the requirements of the law, Letters

Patent of the United States were, on the 22nd day of May, 1906, duly

granted to him, hearing No, 821,580,

Fifth. That said patent heing inoperative and invalid by reason of

a defective and insufficient specification arising from inadvertence,

aceident and mistake, and without any fraudulent or deceptive in-

tent, said plaintiff, on February 5, 1913, duly surrendered the said

letters patent, and applied for a reissue thereof in due form of law,

and that on the 11th day of March, 1913, all the requirements of the

statutes then in force having heen complied with, letters patent of the

United States reissue No. 13,542, were duly granted to said plain-

tiff.

Fifth (A). That the plaintiff, John Simmons Company, is and

has been, since about the vear 1908, the only manufacturer

4 of acetylene gas lamps for miners’ use embodying the inven-

tions of said original and reissued letters patent. is the only

licensee thereunder, and is now and has been for the past two years

the only authorized selling agent for said lamps.

—

FREDERIC E, BALDWIN ET AL. 3

Sixth. That a large number of Aceiylene Gas Lamps embodying

the inventions of each of said letters patent have been made end

sold, all of which Lamps were duly marked “Patented.” together

with the dates of -aid Letiers Patent of which the plaintiff Frederic

E. Baldwin is now and has been since their respective grants the

sole owner,

Seventh. The Abercrombie & Fitch Company (and Justrite Mfe.

Company, and each of them), has infringed upon each of said Let-

ers Patent, since the dates of each of said letters patent and prior

to, and within six vears of the filing of this bill, and particularly

daims 1 and 10 of the said Letters Patent No. 656.874, and claims

Land 4 of said reissue letters patent No, 13.542. by making or caus-

ing to be made, using or causing to be used. and selling or causing

fo he sold. in the Borough of Manhattan. New York City, within the

Southern District of New York, and elsewhere in the United States,

Acetylene Gas Lamps, made in accordance with and embodying the

inventions set. forth in said claims of said Letters Patent, without the

onsent of the plaintiffs, and are continuing so to do, and have de-

rived unlawful gains and profits from such infringement which

laintiffs wonld otherwise have received and have thereby been

caused irreparable damage.

) Wherefore, plaintiffs pray for writs of injunction, as well

provisional as permanent. issuing out of and under the seal

f this court, enjoining and restraining the defendants, Abercrombie

¢ Fitch Company and Justrite Mfg. Company. their and each of

heir officers, directors, clerks, servants, agents and workmen from

nfringing upon said letters patent and each of them: that each of

aid defendants account to each said plaintiff for the profits made

wv them and each of them. and the damages sustained hy each

Maintiff, and that upon rendering a decree herein, the actual dam-

ges so assessed he trelbled, in view of the wilful and unjust infringe.

nent by the said defendants; that the plaintiffs recover the costs and

lishursement: of this suit: and plaintiffs pray for such other and

urther relief as may appear proper and be agreeable to equity.

PREDERIC E. BALDWIN,

By PHILIPP. SAWYER, RICE & KENNEDY.

Nolicitors for Plaintiff, Frederic BE. Baldivin,

220 Broadway, Manhattan, N.Y.

JAMES 0. RICE.

Of Counsel for Plaintiffs.

The foregoing amended bill of complaint is hereby adopted by

en Simmons Company, Intervenor, pursuant to the annexed

rder.

JOTIN SIMMONS CO., ;

Sy PHILIPP. SAWYER, RICE & KENNEDY,

Solicitors for Intervenor, John Simmons Company,

220 Broadway, Manhattan, N.Y.

ABERCROMBIE & FITCH CO, ET AL. VS.

6 Amended Answer.

United States District Court. Southern District of New York.

In Equity.

Freperic FE. Barpwin and Joux Simmons Company, Intervenor.

Plaintiffs,

vs.

ABERCROMBIE & Fircu Company, and Justrire Mra, Company,

Intervenor, Defendants.

Amended Answer to Amended Bill of Complaint.

To the Honorable the Judees of the United States District Court for

the Southern District of New York.

The Justrite Mfg. Co.. admitted as a party defendant in the above

entitled suit, states that it is a corporation organized and existing

under the laws of the State of Illinois and doing business in the

City of Chicago. and County of Cook in’ the said State, an-

swering the Bill of Complaint filed by the plaintiff, defendant an-

swering says:

First. This Defendant on information and belief avers that the

Complainant. Frederic FE. Baldwin, is not entitled to sue for in-

junction or damage herein. as said complainant is not engaged in

the manufacture or sale of any article containing his alleged pat-

ented invention, and on like information and belief this defendant

avers that said complainant, for certain royalties to him re

7 served, has licensed for the full term of his said alleged pat-

ent and for the United States, the John Simmons Manu-

facturing Company to manufacture and sell and to license others to

manufacture and sell the said patented inventions, and that on the

12th day of August, 1912, the said John Simmons Manufacturing

Company, in consideration of a license from this defendant to use

patent No. 688,925, issued to Alvin L. Buffington, (and by him as

signed to the Justrite Mfg. Co.) and the payment by said John Sim-

mons Manufacturing Company to this defendant of the sum of

Five Thousand ($5000.00) Dollars. released to this defendant and

to all persons acting or claiming under said alleged patents, and that

during the said month of August the president Frederick J. Becker,

and Harry Lea Dodson, attorney of the Defendant, The Justrite

Manufacturing Company, called upon Mr. Charles Simmons, the

president, of the John Sim-ons Company, plaintiff, and that the said

Dodson at that time and in the presence of Mr. Charles Simmons

and Mr. Becker made a pencil memorandum setting out the details

of the agreement as above set forth, entered into between the parties,

that a short time thereafter Mr. J. Q. Rice, one of the attorneys

for the plaintiffs came into the matter for the purpose of preparing:

formal documents embodying the terms of agreements entered into

REE TERT RT eS eee HEATER ROE POETS SAN —

FREDERIC £. BALDWIN ET AL, 5

between Mr Charles Simmons for and in behalf of the John Sim-

mons Company, and Mr. Frederick J. Becker, for and in behalf of

the Justrite Manufacturing Company, that the said Rice attempted

to embody in the agreement many things which the Defendant had

never agreed to, and that a number of papers were prepared, and

each and every one of which set forth the consideration as

8 above stated but contained many covenants which this de-

fendant had never made nor agreed to make, and that there-

upon to wit, on or about the Ist day of May 1913, the defendant,

The Justrite Manufacturing Compnay relying on Mr, Charles Sim-

mons, acting for the John Simmons Manufacturing Company,

sending the release as his part of the said agreement existing between

the parties, and in order to fulfill its duties forwarded a formal

license,

Second. Answering the 3rd Clause of plaintiff's Bill of Complaint,

this defendant admits upon information and belief that Letters

Patent of the United States No. 656,874, bearing date of the 28th

day of August, 1900, for certain alleged improvements in acetylene

lamps, were issued to plaintiff, but this defendant denies that the

plaintiff was the original, sole and first inventor of the alleged im-

provement sought to be claimed in and by said Letters Patent: de-

nies that said improvements had not been known or used hy others

before said Frederic E. Baldwin’s pretended invention thereof, de-

-hies that the same had not, before such pretended invention, been

patented or described in any printed publication, in this or any

foreign country; denies that the same had not been in public use

or on sale for more than two years prior to the application for said

Letters Patent; and denies that said Letters Patent are valid or ef-

fectual to secure to the said Frederic E. Baldwin his heirs. admin-

istrators, executors or assigns, the exclusive right, or any right what-

ever, of making use, or selling to others to be used, the alleged im-

provements as set forth in the said Letters Patent, and par-

9 ticularly denies the validity of the invention as described in

the Ist and 10th claims of the said Letters Patent.

Third. And this defendant further answering denies that the

said alleged invention as described in the 1st claim is useful or that

it is an improvement, and advance in this art, but on the contrary

thereof, this defendant avers and charges the fact to be that said 1st

claim of the said Letters Patent is null and void for want of utility

and also for the further and separate reason, for want of invention

on the part of the said Frederie FE. Baldwin.

Fourth, This defendant further answering the 4th Clause of

Plaintiff's Bill of Complaint admits upon information and _ belief

that Letters Patent of the United States No. 821,580, bearing date of

the 22nd of May, 1906, for certain alleged improvements in acety-

lene lamps were issued to plaintiff, but this defendant denies that

the plaintiff was the original, sole and first inventor of the alleged

Improvement sought to be claimed in and by said Letters Patent:

denies that said improvements had not been known or used by others

fore said Frederic E. Baldwin’s pretended invention thereof;

denies that the same had not, before such pretended invention, been

—

patented or described in any printed publication, in this or any

foreign country; denies that the same had not been in public use

or on sale for more than two vears prior to the application for said

Letters Patent: and denies that said Letters Patent are valid or

effectual to secure to the said Frederic 2. Baldwin, his heirs, admin-

istrators, executors or assigns, the exclusive right, or any

10 right whatever, of making use, or selling to others to be aan

the alleged improvements as set forth in the said Letters

Patent, and particularly denies the validity of the invention as de-

seribed in the Ist and 4th claims of the said Letters Patent.

Fifth. And this defendant further answering denies that the said

alleged invention as described in the 2nd claim is useful or that it

is an improvement and «dyance in this art, but on the contrary

thereof, this defendant avers and charges the fact to be that the said

Ist claim of the said Letters Patent No. 821,580 is null and void for

want of utility, and also for the further and separate reason, for

want of invention on the part of the said Frederic . Baldwin.

Sixth. This defendant denies that it has ever made, used, or

vended to others to be used, the said alleged invention, or any sub-

stantial part thereof, and denies that it has ever made, vended, or

vended to others to be used, any device in acetylene lamps made

according to, or employing said alleged invention, or any substantial

part thereof. and denies that it has in any way infringed or violated

the plaintiffs privileges in this behalf, or that it intends so to do,

or that it has received or enjoved any gains or profits therefrom, or

has caused any injury or loss to the plaintiff.

Seventh. Defendant further answering says that it is now, and

has been for several vears past. engaged in the manufacturing, sell-

ing and introducing into use acetvlene gas lamps, and that

11 the Jamps thus made were made in accordance with the de-

scription and drawings embodving the invention of Augie L.

Hansen, described in Letters Patent No. 42.460, and dated May 7,

1912, as the assignee of the entire right, title and interest in the

invention of the said Augie L. Hansen, above named.

Kighth. Defendant further answering states that the portion of

the said lamp alleged to be covered by the Ist claim of the said Patent

No, 656.874. does not embody the said construction, but is the in-

vention of Ludwig Schmitt, of Mannheim, Germany, the description

of which was published in his British Patent No, 15,688, of July

1898, which was duly published in the United States, and became

public property long prior to the application for patent by the said

Frederic FE. Baldwin.

Ninth. And this defendant answering savs that the said Frederic

E. Baldwin was not the sole or original inventor of the alleged in-

vention and improvement described hy him as new in the 10th claim

of Letters Patent No. 656,874, but affirms that the same, or all

material parts thereof, were prior to the supposed invention thereof

by the said Baldwin, well known to one Leroy S. Buffington, of

Minneapolis.” Minn., and embodied in a lamp constructed and by

him publicly used at that time. and which he still has properly

attested and witnessed; and that the subject matter of the last claim -

CLE EL” dP BERIT ke, CLG cat aoe ae See a % “apm —

6 ABERCROMBIE & FITCH CO, ET AL. VS.

FREDERIC E, BALDWIN ET AL, 7

as well as the 10th claim of said patent was well known to Thomas

F, Williams, of Chicago, TIL, and practiced by him, and by various

other persons whose names are unknown to this defendant,

12 but which this defendants prays leave to insert herein and

make a part hereof when they shall be discovered, and the

defendant further denies the validity of the said Letters Patent for

the reason that the said claim was held invalid by the Circuit Court

of Appeals of the Sixth District in a decision reported in Vol. 199

Fed. Rep. p. 153: and this defendant further answering avers the fact

to be that the said Frederic Ff. Baldwin was not the first and original

inventor of the said alleged improvement in acetylene gas lamps

described in the Ist and 10th claims of Letters Patent No, 656,874

and the Ist and 4th claims of Letters Patent No. 821,580, but on the

contrary thereof that the same thing in all material and essential

features, and the same principle and combination, » as, previous to

the said alleged invention of the said Frederic FE. Baldwin, fully de-

scribed and set forth in the Letters Patent, hoth of the United States

and foreien countries, long prior to the alleged invention of diseovery

by the said Frederic Ef. Baldwin. the said Letters Patent being here-

inafter enumerated as follows:

United States Patents.

ee re arr 614,438, Nov. 22, 1898,

ns: OEE ey ee 614,652, Nov. 22, 1898,

EO a na vee ewe ee 627.303, June 20, 1899,

coags is, Terres: te Feb, 22, 1898,

ME hh cy sae he he ka eae 599,270, Feb. 15, 1898,

BS gs ae ate bee nas, AYE 74.601 Jan. 5, 1897,

Se rT tee eee 610,150, Aug, 30, 1898,

RN ey cre gery Serre 621,331, Mar. 21, 1899,

ee | re BAF O10, Mar. 6, 1900,

ripe ere rere ys aie 608,571, Aug. 9, 1898,

13

ee ere rere 624,068, May 2, 1899,

pea nse TREE ROT? 618,594, Jan. 31, 1899,

RAE oer anes Set reine ee) 662,842, Noy. 27, 1900,

ite ER eS H97 900. Jan. 25, 1898,

ee SE eee eee 595,230, Dec. 7, 1897,

ee 2 See eee 600.563, Mar. 15, 1898.

DEE ee ae 582,548, May 11, 1897,

SR SS EY ae 4 622,015, Mar, 28, 1899,

Re teen httas eee 616,889, Jan, 3, 1899.

| Se eee eee 332,087, Dec. 8, 1895,

re eee 643,111, Feb. 13, 1900,

Zimmermann ............... 634.319, Oct. 3, 1899,

a eee 625,943, May 30, 1899,

eres Jan. 4, 1899,

NE GOD oy ete 633.844, Sept. 26, 1899,

Eee rere Nov. 2, 1897,

OS eee 627, 139, June 20, 1899,

-

June 29, 1897,

Feb. 15, 1898,

Oct. 24, 1899,

Nov. 28, 1899,

July 18, 1899,

Jan. 30, 1900,

Oct. 19, 1897,

Dec. 12, 1899,

Feb, 21, 1899,

Oct. 4, 1898,

Oct. 5, 1897,

July 18, 1899,

Dee. 5, 1999.

of Oct. 21, 1897,

of July 18, 1898,

of Nov. 15, 1597,

of Jan. 31, 1899,

of Oct. 14, 1898,

of Sept. 7, 1897,

No date,

of Dec. 11, 1897,

of Oct. 15, 1897,

of Apr. 27, 1898,

of Dee. 31, 1896,

of Feb. 7, 1899,

of Jan. 19, 1898,

of Aug. 22, 1898,

8 ABERCROMBIE & FITCH CO, ET AL. VS.

Ere eee 585,642,

Hanotier, et al. ............. 599,098,

SA eae rere ae 635,599,

EE css vk pps ced eae 637,934,

EE. 6 vn ened sn Vine pe acen’s 628,964,

SO ax 'e hates ee 40680 Heo 642,559,

Tere rerrrer me |

_ . DANSE Rrra 638,898,

0, ER REE ear mer arsey 619,814,

Gos veel ons wan en ys 611,885,

| PRET OTE CCRT OCTET...

a” Rapa emaenere rere Ser 629,309,

MN ahd ale o Jsy. coe o ele oes 638,449,

British Patents.

I eee a cr ete rats oo 24,360,

| an aren a ape 15,688,

Re ee .... 26,676,

WE NE pak ba aopwedwenn 2,227,

14

Me NE ie cea ee anh eae 21.691,

PECs oo hes odes hawker ds 20,537,

aha ke aad ek aes 16.399,

Ae 2 ee eee 29,405,

IRON da edhe ewenns 23.802,

SS ere 9,718,

MEPS er errr cree 30,134,

SE ciao dis hor e's 6.00 ons 0-9 2.699,

SSE ga eereerece 1,549,

I I fone sian ne Rhea ah 17,997,

EP 5 a6 osd che ore Wn hoe 14,984,

French Patents.

Peper rer rears toe 270,623,

Swedish Patents.

IS Vo em pais vie eae 10,259,

of July 20, 1899,

Jan. 10, 1898.

Mar. 15, 1898.

Tenth. The defendant answering the 5th paragraph of the said

Bill of Complaint denies that the said original Letters Patent No.

821,580 were or contained the proper grounds for a reissue, but

affirms that the said reissue patent No, 13,542, is invalid by reason

of the fact that the Ist and 4th claims of the said original patent No.

821,580 were held invalid by the United States Circuit Court of

Appeals of the Sixth District in a decision reported in Vol. 199, Fed.

Rep. P. 133; and for the further reason that the said application for

reissue was not made until seven years after the issuance of said |

original Letters Patent, and therefore, said reissue was invalid due

Dae (ad a ee eae en ea tem Rn A aa —

-

to the intervening rights which had accrued to the defendant and

others to wit:

FREDERIC FE. BALDWIN ET AL. 9

Norgard Mfg. Co., Des Moines, Lowa.

Maple City Mfg. Co. Monmouth, Illinois.

15 Bleser Mfg. Co., Springfield, Illinois.

Seranton Lamp Co., Seranton, Pennsylvania.

Grier Bros. Mfg. Co., Pittsburg, Pa.

Eleventh. And the Defendant further shows to the Court that it

is claimed by the plaintiff herein that the Court of Appeals for the

Sixth Circuit sustained Claim 1 of said Patent No. 656,874 in its

judgment and decree, as reported in Vol. 199 Ped. Rep., P. 133.

This defendant, however, shows to the Court that the only patents

cited in the trial and hearing of said Cause, or considered by the

Court were as follows:

I Shia hori Wa ea ok kt Oct. 5, 1897,

ET re ee eee ee soars Seg EEE Dec. 5, 1899,

ee Ea rn |, re Mar. 6, 1900,

and that the patents cited herein were not before the Court. A care-

ful examination and analysis of the Court’s decision in said cause

will show that the minimum of patentable novelty referred to by the

Court had reference to the projection of the wire passing through

the water tube into the carbide below, thus regulating the flow of

water, and constituted the meager invention which led the Court to

say :

“This claim presents the minimum of patentable novelty.”

and the defendant avers that an inspection of the Letters Patents

last referred to will show that ‘his invention was not new, but had

been anticipated by said patents and was well known in the art,

and that said citations show that there was no element that

16 =~ could be declared to be new in the said Baldwin invention.

Twelfth. And this defendant further answering plaintiff's

Bill of Complaint shows to the Court that the said Letters Patent,

and particularly as to claims 1 and 10 of Letters Patent No. 656,-

874, and the Ist and 4th claims of Letters Patent 13,542 are invalid

upon their face by reason of the disclosure contained in the Letters

Patent of the United States and Great Britain, Sweden and France

hereinbefore enumerated.

Thirteenth. This defendant answering the Sth clause of Complain-

ant’s Bill of Complaint denies that it has in any manner infringed

either of said Letters Patent mentioned in plaintiff's Bill of Com-

plaint, and denies that, this plaintiff has atiy right to any further

answer to its Bill of Complaint and denies that the plaintiff is en-

titled to any injunction, damages, account or any other relief what-

ever against this defendant, injunctional or otherwise.

2—323

. . . 7 Pg fah A Rae NEN RETA SRADARO RTT AGE NALR lt IPTG A

- SL EAIIOES IL OL MO ERT CRIN GLI NORGE NSO LYONS. IS BE oe oe re.

Pe PA ME I OF vA. mr

10 ABERCROMBIE «& FITCH CO. ET AL. VS.

Wherefore this defendant prays that said bill be dismissed, and

for all proper relief.

JUSTRITE MANUFACTURING COMPANY,

By FREDERICK J. BECKER, President.

WILLIAM M. CHADBOURNE,

Solicitor for Defendant.

CHARLES H. ALDRICH,

HARRY LEA DODSON,

Of Counsel.

if Srate or ILLINOIs,

County of Cook, ss:

Frederick J. Becker, being first duly sworn, deposes and says that

he is the President of the Justrite Mfg. Co., that he has read the

foregoing answer and knows the contents thereof and that the same

is true except as to those matters stated to be on information and

belief and as to such matters he believes them to be true.

FREDERICK J. BECKER.

Sworn to and subscribed before me this 10th day of December,

1913.

C. M. BAUMEISTER,

Notary Public,

18 Stipulation.

United States District Court, Southern District of New York.

In Kquity.

Frepertc BE, BaLowin, Plaintiff,

against

ABERCROMBIE & Fircu Company, Defendant.

It is hereby stipulated between the solicitors for the complainant

in the above entitled suit and the solicitor for the defendant, Aber-

crombie & Fitch Company, that Abercrombie & Fitch Company

need file no separate answer to the bill of complaint in this suit, but

that it may adopt the answer filed this day in this suit of Justrite

Manufacturing Company and rely thereon with the same force and

effect as if it had filed an answer in form and substance similar to

the said answer on the Justrite Manufacturing Company.

Dated New York, June 28, 1913.

PHILIPP, SAWYER, RICE & KENNEDY,

Solicitor- for the Complainant.

WILLIAM M. CHADBOURNE,

Solicitor for Defendant, Abercrombie & Fitch Company.

—_ ‘

; FREDERIC E, BALDWIN ET AL. 11

19 Petition of John Simmons Co, to Intervene.

United States District Court, Southern District of New York.

In Equity.

Freperic E. BALDWIN, Plaintiff,

against

ABERCROMBIE & Fircu Company, Defendant.

The defendants will please take notice that the annexed petition

will be brought on for hearing on the Motion Calendar on October

10, 1913, at the opening of court on that day, or as soon thereafter

as counsel can be heard.

Dated, New York, October 2nd, 1913.

PHILIPP, SAWYER, RICE & KENNEDY,

Counsel for Petitioner, John Simmons Company.

To William M. Chadbourne, Esq., Solicitor for Abercrombie «

Fitch Company and Justrite Mfg. Co., 32 Liberty Street, New York

City, N. Y.

20 United States District Court, Southern District of New York.

In Equity. E-10/219,

IkeDERIC KE. BaLpwin, Plaintiff,

against

ABERCROMBIE & Fircu Company, Defendant.

Petition of the John Simmons Company to Intervene and be Made

Complainant.

To the Ilonorable the Judges of the District Court of the United

States for the Southern District of New York:

Your Petitioner, the John Simmons Company, respectfully shows

unto your Honors:

That it is a corporation organized and existing under the laws

of the State of New York, having its principal place of, business in

the Borough of Manhattan, in the City and County of New York,

in said State, and is engaged in the manufacture and sale of acetylene

lamps, including such as are covered by the patents here in suit,

under which said patent it has a license.

That, on or about the 20th day of May, 1913, Frederic E. Baldwin

(petitioner’s licensor) filed his bill of complaint in equity in this

court against Abercrombie & Fitch Company, charging it with in-

fringement of United States Letters Patent No. 656,874, dated

August 28, 1900, granted to said Frederic E. Baldwin, for

21. improvements in acetylene gas lamps, and United States Re-

issue Letters Patent No. 13,542, dated March 11, 1913, for

improvements in acetylene gas lamps.

ret

12 ABERCROMBIE & FITCH CO, ET AL. VS.

That on or about June 26, 1913, the Justrite Mfg. Co. a corpora

tion organized and existing under the laws of the State of Illinois,

and having its principal place of business at the City of Chi

County of Cook. in said State, petitioned this Court for leave to in-

tervene as «a defendant for the reason that, as alleged in its said

petition, it was informed and believed that it manufactured and sold

to the said defendant, Abercrombie & Fitch Company, the acetylene

gas lamps for the manufacture and sale of which suit was brought,

That said motion of said Justrite Mfg. Co. to intervene was granted

on or about June 26, 1915,

That, on or about June 28, 1913, the answer of said intervenor,

Justrite Mfg. Co., was filed herein.

That, on or about June 28, 1913, a stipulation was entered into

between the Solicitor for said Frederic FE. Baldwin and said Justrite

Mfg. Co. that said Abercrombie & Fitch Company file no separate

answer herein, hut might adept the answer of said Justrite Mfg. Co.

That in the answer of said Justrite Mfe. Co., the following aver-

ment is made:

First. This defendant on information and behalf avers that the

complainant is not entitled to sue for injunction or damage herein,

as said complainant is not eneaged in the manufacture or sale of

any articles containing his alleged patent invention, and on like

information and belief this defendant avers that said complainant,

for certain royalties to him reserved, has licensed for the full

22 term of his said alleged patent and for the United States, the

John Simmons Manufacturing Company to manufacture and

sell and to license others to manufacture and sell the said patented

inventions, and that on the 12th day of August, 1912, the said John

Simmons Manufacturing Company. in consideration of a license

from this defendant to use patent No, 688,926, issued to Alvin L.

Buffington, (and by him assigned to the Justrite Mfg. Co.) and the

payment by said John Simmons Manufacturing Company. to this

defendant of the sum of Five Thousand ($5,000.00) Dollars, re-

leased to this defendant and to all persons acting or claiming under

this defendant all right of action for damages or other relief under

said alleged patents.”

Your Petitioner further shows to your Honors, that for many

years last past it has been the only manufacturer of the inventions

of said plaintiff, Frederic E. Baldwin. including the inventions in

said Letters Patent No. 656.874 and Reissued Letters Patent No. 13,-

542. under license from said Frederic KE. Baldwin, the owner of

the said Letters Patent.

That any recoveries against said defendants, Abercrombie & Fiteh

Company and Justrite Mfg. Co., would probably be a small part of

the actual damages and profits caused by the infringements com-

plained of, unless your Petitioner is permitted to intervene herein.

That if recovery be had in said suit without your petitioner being

a party thereto, it will necessitate the beginning of a new action

by said petitioner for the purpose of recovering damages

and profits caused by the infringement hereinbefore com-_

plained of against said defendant Abercrombie & Fitch Company,

25

GEBEPEL LILI LESION ME AT EPG: Segoe INR Rar Se eatin tom PN Le DOr EA OUT Reet

FREDERIC E. BALDWIN ET AL. 13

and the intervening defendant Justrite Mfg. Co., because it is not

a party to such action. .

Wherefore, your petitioner, believing itself to be a party having

such united interest in the subject of action and in obtaining the

relief demanded in order to a complete determination of the action,

prays that it may be allowed to intervene in the above entitled ac-

tion of Frederic E. Baldwin against Abercrombie & Fitch Company,

and be made a plaintiff therein, with leave to file its bill of com-

plaint in all respects as it might have had petitioner originally filed

its bill of complaint jointly with said Frederic E. Baldwin against

said Abercrombie & Fitch Company and said Justrite Mfg. Co.

(Sed. ) JOTIN SIMMONS CO.

By CHAS. H. SIMMONS, Prest.

PHILIPP, SAWYER, RICE & KENNEDY,

Solicitors and of Counsel for Petitioner,

220 Broaduay, Borough of Manhattan,

New York City, New York.

JAMES O. RICE,

of Counsel,

24 STATE OF NEw York,

County of New York, ss:

Charles H. Simmons, being duly sworn, deposes and says that

he is the President of the John Simmons Company, the above named

petitioner, that he has read the foregoing petition and knows the

contents thereof, and that the same is true of his own knowledge

except us to the matters therein stated to be alleged upon informa-

tion and belief and as to those matters he believes it to be true.

CHAS. If. SIMMONS.

Subscribed and sworn to before me, this 2nd day of October, 1913.

[ SEAL. | AUGUSTA WHITE,

Notary Public, N.Y. Co.

5) Petition of Justrite Mfg. Co. to Intervene.

United States District Court, Southern Distriet of New York.

In Equity.

Freveric E. Banpwin, Plaintiff,

vs.

ABERCROMBIE & FircH Co., Defendant.

Sirs: Please take notice that a petition, a copy of which is hereto

mnexed will be brought on for hearing before this Court, at the

Federal Court Rooms, in the Post Office Building, in the Borough

f Manhattan, in the City of New York, on Friday, the 27th day

14 ABERCROMBIE & FITCH CO, ET AL, VS.

of June, 1913, at the opening of court on that day, or as soon there

after as counsel can be heard, and a motion then made for the relief

therein prayed. |

Dated New York, June 26, 1913.

Yours, ete.,

WILLIAM M. CHADBOURNE,

Solicitor for the Justrite Manufacturing Company.

Office and P. O. Address, 32 Liberty Street, Borough of Man-

hattan, New York City.

To Philipp, Sawyer, Rice & Kennedy, Solicitors for the Complain-

ant, 220 Broadway, New York City.

26 Petition to Intervene.

United States District Court, Southern District of New York.

In Equity.

Frepertc E, BaLpwin, Plaintiff,

vs.

ABERCROMBIE & Fircu Co., Defendant.

The Petitioner, The Justrite Mfg. Co.. a corporation organized

and existing under the laws of the State of [linois, and doing busi-

ness in the city of Chicago, County of Cook, in the said State, re

spectfully shows that on the 20th day of May, 1913, the Bill of

Complaint in the above entitled suit was filed in this Court, naming

as the grounds for the bill, the selling by the defendant corporation

of certain acetylene generating lamps. which vour petitioner is in-

formed, and so believes the facts to be, are lamps manufactured by

it, The Justrite Mfg. Co., and in which event it would appear that

the petitioner is within the description of parties having a right to

intervene, as set forth in Federal Equity Rule No. 37, to the fol-

lowing effect,

“Any person may be made defendant who has or claims an in-

terest adverse to the plaintiff.”

27 Your petitioner, therefore, prays that the Court will issue

an order making the said Justrite Mfg. Co. a party defend-

ant. to this suit, with leave to answer the said Bill of Complaint filed

on the behalf of Frederie EF. Baldwin, and to assume the burden

of the litigation.

The Justrite Manufacturing Company.

By FREDERICK J. BECKER,

President.

_— oma se . ne

FREDERIC FE. BALDWIN ET AL. 15

98 Complainant's Testimony.

United States District Court, Southern District of New York.

In Equity. 10-219.

Frepvertc I. BALDWIN, AND JOHN SiMMONS Company, Intervener,

Complainants,

vs.

ABERCROMBIE & irc Company, and Jusrrire Mra. Company,

Intervener, Defendants.

New York; Monday, January 4th, 1915—10:30 A. M.

Before: Ilon. Julius Mayer, D. J.

Appearances :

Messrs. Philip Rice, Sawyer & Kennedy, Solicitors of Record, by

James Q. Rice, Esq., for Complaints.

William M. Chadbourne, Esq., Solicitor of Record, by James R.

Offield, Esq., for Defendants.

Complainant's ‘Testimony.

Mr. Rice: If the Court please, the bill in this case charged in-

fringement on two patents. We have notified the other side that

we will not rely on the first patent and will ask leave to dismiss as

to that patent.

29 I will offer in evidence a copy of the re-issued patent, No.

13,548 to Baldwin.

(Marked Complaint’s Exhibit 1.)

I will offer in evidence a cetrain lamp, defendant’s lamp.

(Marked Complainant's Exhibit 2.)

If the Court please, we have entered into a stipulation here which

I suppose is somewhere in the files in this case. I have a copy of

it, but I think the original is on file.

[ offer in evidence this stipulation.

(Marked Complainant’s Exhibit 3.)

I would also like to offer in evidence one of the complainant’s

commercial lamps.

(Marked Complainant’s Exhibit 4.)

I would also like to offer in evidence the decision of Judge Orr

on this patent, in the suit of Baldwin against Grier Company in

Pittsburgh.

(Marked Complainant’s Exhibit 5.)

I would also like to offer in evidence a certain lamp as complain-

ant’s exhibit 6, Grier-lamp, this being the lamp which was involved

in the Pittsburgh suit.

(Marked Complainant’s Exhibit 6.)

wy,

———

16 ABERCROMBIE & FITCH CO, ET AL. VS.

Freperic E. BALpWrx, called as a witness in behalf of the com-

plainant, after being duly sworn testified as follows:

Direct Examination by Mr. Rice:

Q. 1. You are the patentee of the patent here in suit, and one of

the complainants in this case?

A. I am.

Q. 2. IT hand you a lamp marked complainant’s exhibit 4 and

ask you whether or not you can identify this lamp. If so, please

state what it is?

30 A. I do, It is a miners’ acetylene cap lamp made by the

John Simmons Company under license from me under the

patent in suit.

Q. 3. What is vour connection, if any, with the John Simmons

Company ?

A. I have no direct connection with the John Simmons Company,

but T keep in touch with the manufacturing and selling and market-

ing of the lamps, and also in a consulting capacity.

Q. 4. The bill of complaint states that John Simmons Company

is the only manufacturer and the only licensee under the patent in

suit, is the statement true?

A. It is.

Q. 5. How long has the John Simmons Company been licensee

under the patent in suit?

A. Sometime in 1908, we made an arrangement whereby John

Simmons Company manufactured the lanups and both of us sold

them. Later, about 1911, under a subsequent arrangement, they

took over the entire making and selling of the lamps exclusively.

Q. 6. Will you state whether you derive any profit from the

sale of these lamps to the John Simmons Company?

A. I do, they pay me a specified amount on each lamp they sell.

Mr. Offield: I suggest if the license is in writing it ought to be

offered.

Mr. Rice: This is all T have to ask him on this point.

Q. 7. When did you first begin to market an “Acetylene Miners

Cap Lamp’?

A. In January 1906.

Q. 8. How did that lamp which you say you marketed in 1906

compare with this lamp, exhibit No, 4?

A. It was practically the same lamp, merely some variety in style.

31 By the Court:

Q. 9. Did that lamp have the rod straight and not bent?

A. Yes sir, identically the same. The difference in the lamp was

only the size.

By Mr. Rice:

Q. 10. I call your attention to a copy of the Engineering and Min-

ing Journal of July 21st, 1906, and to an article on page 111 there- ~

-

of, and 1 will ask you whether or not you recognize the lamps which

are shown in the cuts in this article?

A. I do,

Q. 11. Will you please state what the lamp Fig. 1 is?

A. Fig. 1 is the first acetylene cap lamp that I made. The other

two are lainps of a little larger capacity.

Q. 12. Tlow did the construction of the lamp shown in Fig. 1 com-

pare with the construction of the lamps shown in the other two fig-

ures, the interior construction ?

A. They are identically the same.

Q. 13. When did you first make this lamp shown in Fig. 1 of that

article?

A. T made this lamp shown in Fig. 1, the latter part of December,

1905.

(. 14. And how soon thereafter did you place any of these lamps

on the market?

A\. This first one, Fig. 1, was in January, 1906, and these (indi-

cating) were a little earlier date, The other two were a little earlier

date.

Q. 15. 1 understood you to say that the lamps shown in Fig, 2

and + were marketed earlier than the lamp shown in Fig. 1?

A. Yes sir.

Q. 16. Were those lamps shown in Fig. 2 and 3 cap lamps?

A. No sir, they were hand lamps, much larger capacity, they

worked twelve hours.

FREDERIC E. BALDWIN ET AL. 17

32 By the Court:

Q. 17. Fig. 1 was the cap lamp?

A. Yes sir.

Mr. Rice: I will offer this publication in evidence.

Will you admit that this a regularly issued copy, Mr. Offield?

Mr. Oflield: Yes,

It is admitted that the publication is a regularly issued copy of

the Engineering and Mining Journal of July 21st, 1906,

(Marked Complainant’s Exhibit 7.)

Q. 18. Will you state whether there were any miners’ acetylene

cap lainps on the market when you first started to market vour cap

lamp?

A. No, there was no other acetylene cap lamp on the market. I

was the first to introduce it. -

Q.19. To what extent have those lamps been sold by yourself

and John Simmons Company? es

A. Probably over one million.

Q. 20. What lamps or lights were miners using at the time when

you started to market these acetylene cap lamps of vours?

A. They used these oil lamps with a wick, candles, ete.

Q. 21. What advantages, if any, has the miners’ acetylene ‘ap

lamp as compared with the oil lamps?

A. It has several great advantages. First, economy. An oil lamp

3—323

a

owing to the mine laws has to consume a high grade of oils and

this cost the miners from twenty-eight to forty cents a gallon. A

gallon lasts for a week, One of these acetylene mine lamps can be

burned for a week at a cost not to exceed eight cents, Then the oil

lamps give off a great deal of smoke which contributes largely to

miners’ asthma, and it also consumes a great deal of the oxy-

33 gen in the air. Now, acetylene gas gives off no smoke and

it only consumes one-eighth of the oxygen in the air that oil

lamps consume so that a man has better health and he has much

better air. In mines they do not get much fresh air, and the air is

not changed around and quite a little oxygen has gone out of it,

Then there is another thing for safety, These oil lamps have a

great big wick, an inch in diameter and rough on the top and in

going through windy places the sparks are often blown off into the

timber that is oil soaked and also the miners throw away the partly

consumed wick, they throw it away without putting their foot on

it and that is another source of danger. There are no wicks and no

sparks in aceylene lamps.

And there is one other reason, When they make their powder to

blast with, they make it with their hands, and although the laws

prohibit it, miners keep the lamps on their hats and a spark falling

down will ignite the powder. It is quite a common case for a miner

to be injured from the explosion of the powder. Again, there are

no sparks in acetylene lamps.

Q. 22. Will vou state whether any special kind of earbid is neces

sary for these lamps?

A. Yes sir, we have to have a special small size.

Q. 23. Will you state whether this special carbid was readily ob-

tainable by the miners when you started to market these miners’ cap

lamps?

A. No, they could not obtain it at all.

Q. 24. How was it supplied by vou?

A. We had to obtain agents, who would carry this carbid at the

mines to supply miners as they needed it. Phere was none. We had

to build up the whole trade.

Q. 25. Where did you get this carbid?

34 A. We had it specially packed for us by the Union Carbid

Company.

Q. 26. Now, state whether or not you had any difficulty in getting

these lamps adopted by the miners?

A. Yes sir, we had considerable diffieutly,

Q. 27. Will you state what the difliéulties were?

A. Well, in the first place, the miners had never seen acetylene

and did not know what it was. When we showed them the lamp at

first they thought it burned water and they would not believe that a

little thing like that would work. I said there was no carbid; they

did not know how to handle it, so we had to obtain agents in differ-

ent mines and instruct our agents how to handle the lamp so that

they could show the miners. Then we arranged with him to carry

the carbid, and in that way we started it. But even then we had.

trouble, Of course, they have pretty strict mine laws, and some of

ERA FE LOLLEL IG OIE IEE PIE , _

18 ABERCROMBIE & FITCH CO. ET AL. VS.

————

FREDERIC E. BALDWIN ET AL. 19

the State Inspectors did not know whether acetylene could be used

ina mine, and they experimented with it and tested it, and the lamps

legan to take quite well, but in two states we had a great deal of trou-

ble even after the men liked them. For two or three years it was

very hard work to introduce these to the miners becouse the miners

are illiterate and not progressive and many of them cannot even

speak English and to introduce a proposition like this is very ex-

pensive and hard,

Adjournment taken until Tuesday, January 5, 1914, at 10:50.

35 Trial Resumed.

January 5th, 1914—10:30 A. M.

Mr. Melles: I understand that Mr, Oflield covers both the de-

fendants. Of course the interests of the defendant Abercrombie and

Fitch Company is comparatively slight and to forestall the possibility

within the heat of trial that it may he inadvertently overlooked, I

should like to have it stipulated on the record that all objections and

exceptions taken on behalf of any question shall be deemed to have

been taken on behalf of Abercrombie and Fitch Company.

Mr, Rice: I agree.

The Court: Certainly,

Frepertck FE. BaLpwin resumes the stand:

Direct Examination by Mr. Rice (Continued).

Q.28. Now widely has the complainant’s lamp like exhibit 4

heen sold?

A. They have been sold in about every mining community in the

United States, where open flame lamps can be used.

Q.29. What do vou mean by open flame lamps?

A. An open flame lamp is where there is no gas in the mine, no

explosive gas: safety lamps would have to be used under those condi-

tions,

Mr. Rice: I offer in evidence this direction sheet.

(Marked Complainant’s Exhibit No. 8.)

Q.30. T call your attention to complainant’s exhibit 5, and ask if

vou know what this is?

A. Yes sir, it is the direction sheet sent ont with the lamp manu-

factured by J. Simmons Company.

36 Q.31. Did vou ever manufacture and sell the lamp illus-

trated in the drawings of the patent in suit?

A. Yes sir, we did.

Q.32. Please state generally what the character of these. lamps

were? '

A. It was a large cast iron lamp adapted to hold about three

pounds of earbid and called a gang lamp because a gang of men

could work by its light. it gave sufficient light for several men.

Q.33. In other words, as IT understand your last answer, you at

20 ABERCROMBIE & FITCH CO, ET AL. VS.

the beginning manufactered lamps in precise accordance with the

patent drawings here?

A. Yes sir,

Q. 354. With the bent rod?

\. Those lamups were quite large, and were about that large in

diameter (indicating about seven inches) and then they worked

perfectly well with a straight stirrer, but you had such a long dis.

tance to carry the water to the good carbid on the outside. As vou

see here, the hall forms at the middle, and with these big lamps it

took a long time for the flame to come up and by using the bent

stirrer you could reach further away and you could get the results

quicker,

You see, in that lamp (the lamp illustrated in the patent) the

water travels about that far (indicating) ; in the small lamp it trav-

els about an inch from the center to the outside. In the big lamp it

travels about three inches and it took too long to get through.

Q. 35. You were the complainant, were vou not, in the suit of

Baldwin against Bleser, in the Circuit Court for the Southern District

of Hlinois?

A. I was.

Q. 36. When was the bill filed in that case?

A. In January, 1909,

37 Q.37. And how soon after vou learned of the infringe-

ment in that case was that bill filed?

A. T cannot reeall the exact date but as quickly as the attorneys

could prepare the bill after we received the information of the in-

fringement.

Q. 38. You were one of the complainants in the suit of Baldwin

and J. Simmons Company against Grier in the Western District of

Pennsylvania, were vou not?

A. Yes sir.

Q. 39. When was the bill in that suit filed?

A. In October, 1913.

Q. 40. How long, if vou know, has this instruction sheet, exhibit

8, been sent out with your lamps?

A. T cannot give the exact date, when that one was sent out, but

about 1911 or 1910.

Cross-examination by Mr. Offield:

X Q.41. Mr. Baldwin, when did vou first make acetvlene lamps

of any character, irrespective of whether they were to be used for

miners, bicyeles or any other use?

A. Oh, somewhere around 1899, about that, somewhere in that

neighborhood: I do not know the exact date.

X Q.42. And the first patent that vou took out upon acetylene

lamps of any character was the abandoned patent in this case, No.

656,874?

A. T think so,

X Q. 43. Now, in this abandoned patent you show a water com-

partment, carbid compartment, a tube leading from the water com-

RM SPEER NNER NIN YeHSO8y No SARL RSE

_—

FREDERIC E. BALDWIN ET AL. 21

partment into the carbid compartment, and a rod extending through

the tube, which extends beyond the water tube and has a pointed

end—did you as early as 1899, make a lamp of the construction

shown upon the second sheet of drawings designated as Fig. 6?

Mr. Rice: I object to that, if your Honor please, as irrele-

38 vant and immaterial and not proper cross-examination, We

have not gone into this patent or the construction shown in

this patent.

The Court: Objection overruled.

The Witness: I made it somewhere in that neighborhood, I cannot

recall whether it was made before the application of the patent or

afterwards but it was in that neighborhood,

X Q. 44. That is, in the neighborhood of 1900?

A. Yes sir, somewhere about that, it might be 1901 or later.

X Q.45. You cannot state specifically?

A. T cannot remember,

X Q. 46. But it was somewhere after 1899 and somewhere in the

early part of 1900? =

A. Yes sir.

X Q.47. Now, in that lamp as shown in figure 6, the only differ-

ence between the lamp figure 6 and the lamp figure 10, is that the in-

termediate compartment between the water chamber and the carbid

chamber has heen reduced in size so that there is only a small space

hetween the water compartment and the carbid compartment, the

other parts of the lamp are substantially the same?

A. Yes sir, the main features.

X Q.48. In other words, the water tube C of the lamp construe-

tion shown in figure 1 is of the same length as the water tube in the

lamp construction shown in figure 6?

| A. T should say approximately. Of course, they were different

amps.

XQ. 49. Well. approximately, that is they were within one

quarter of an inch of each other?

A. Yes sir, T suppose so.

39 X Q. 50. Now, what was the function of the rod E in this

abandoned patent?

A. (Witness examines specifications).

X Q.50, Don’t vou know without examining the specification of

the patent to find out?

A. T have forgotten exactly what T said about it, T want it to agree.

But the rod T kept the valve from turning, that was one of its fea-

tures and it kept the end of the water tube clean if the carbid got

up inside of it.

X Q. 52. But the rod in this abandoned patent did not perform

any function in your estimation of operating to restrict the water

duct or water tube?

A. No, T would not say that it had that funetion,

_ X Q. 53. Nothing in the specification that would indicate that

In any way?

No.

ABERCROMBIE & FITCH CO, ET AL. VS.

X Q. 54. In the abandoned patent, you show a perforated tube

in the carbid chamber into which the water tube extends?

A. er? *

X Q. 55. That tube is removable is it not?

A. as sir.

X Q. 56. That is, you can take it out and throw it away, or put

it in, as you want to?

A. The lamp would not operate if vou threw it away.

X Q. 57. You mean to state that that lamp would not operate,

generate acetylene gas in the proper manner if the perforated tube

was omitted from it?

Yes.

x Q. 58. Now, in figure 6, if vou omit the perforated tube from

that construction where the water tube extends down toward the bot-

tom of the carbid container, would a lamp of that construetion

operate if the perforated tube were omitted ?

A. We never found it to do so, we considered it always neces-

sary.

40 X Q. 59. You never were advised by the miners that there

was no use in supplying these lamps with perforated tubes

because the tubes were of no effect and the miners simply threw

them away?

Mr. Rice: T object to that. if vour Honor please, There is no state-

ment here that they were introduced in mines. As a matter of

fact

The Court: Reframe the question.

X Q. 60. Please state whether or not in a lamp as shown in

figure 6, if it was ever called to your attention that the perforated

tube was of no consequence in that construetion and that it was com-

mon practice for users of this lamp to throw the perforated tube

away?

A. T know it was not. hecause we had to sell them all the time

to replace them for these bieyele lamps.

X Q. 61. You do not know of any instance where they did

throw the tube away, and told you so?

A. No one ever told me so, absolutely, beeause we know they

would not work.

X Q. 62. Now, please state whether or not the water tuhe which

you used in this abandoned patent, or lamp made in accordance

with the abandoned patent, was substantially the same sized water

tube as used in the lamp today?

A. This water tube was not the same size as the one we use today.

X Q. 63. Well, how much larger or how much smaller than the

one you use today?

A. It was more than double the diameter, I should say, and with

a large hole in it.

41 By the Court:

X Q. 64. That is the first patent?

A. The lamp shown in the abandoned patent had a water tube,

EGER LEM LETOL ILE IEE LL OE

—_

FREDERIC E. BALDWIN ET AL. yas

I should say, certainly double the diameter and a much larger hole

in the interior.

By Mr. Offield:

X Q. 65. Was this drawing made from an actual lamp that was

presented to the draughtsman or was it an imaginary affair based

upon no definite relationship of parts?

A. I should say that it was drawn from the original lamp, but

without particular attention to the actual details.

X Q. 66. And isn’t it a fact that the water tube as shown in this

abandoned patent as compared upon the face of the patent, is sub-

stantially the same size as the water tube used today in your lamp?

A. Oh, no, nothing like it.

X Q. 67. Please measure the diameter of the water tube of your

abeadoned patent and compare it with the diameter of the water

tube of your present structure.

Mr. Rice: LT object to that if vour Honor please, as being irrelevant.

He is asking this witness to measure here this picture which does

not represent the actual size of any lamp, measure the water tube of

this picture, and compare it with the water tube of that lamp. Of

course, this particular picture itself is a reproduction from the ae-

tual drawings filed in the patent office. In other words, lithographic

copy, I think, is 3 /5ths the size of the actual application filed.

(Discussion between Court and Counsel).

Mr. Offield: I withdraw the question.

42 X Q. 68. Have you anywhere in your possession a lamp

that was made by you in 1900 along the lines of construction

as the lamp shown in figure 6 of the abandoned patent?

A. I might have one, I am not sure.

Mr. Rice: If your Honor please, in order to stop this line of ex-

amination we are bound here to make a search and produce, if we

can possibly produce it, that lamp. If we can possibly produce that

lamp, we will produce it. We will he very glad to do it if it is a pos-

sible thing to get one of those lamps.

By the Court:

X Q. 69. As I understand it, this lamp that you actually had of

that type was about double the diameter, so far as the tube was con-

cerned, of the present lamp?

A. The tube was much larger than this (indicating the hook on

complainant’s exhibit 6) it was more than twice the size because

this lamp was a big bievele lamp.

X Q. 70. The lamp of the abandoned patent?

A. Yes sir, and it would be fully twice the size. If you measure

this tube and it came to the same size, which it does not, it would

still be double the size.

XQ. 71. And in those lamps made in 1900, the rod that extended

through the water tube had a straight end, and did not have an end

with a stirrer on it as in the re-issued patent?

D4 ABERCROMBIE & FITCH CO, ET AL. VS.

A. No, not a great big bent end.

X Q. 72. Did the rod of the abandoned patent have a straight

end?

A. Well, there is a slight curve to it, as you can see in the

patent.

43 X Q. 73. What about the actual construction?

A. It was made virtually like the drawing.

bd X Q. 74. Now, what was the difference in the end between the

construction vou made under the first patent and the lamp you have

been making under this present patent—what is the difference be-

tween the rod ends of the abandoned patent, and the lamp that you

are actually making now?

A. The whole principle of the lamp is different. The wire goes

in both lamps through the water tube and in the patent in suit the

wire should go further through than is shown in this patent.

X Q. 75. In the abandoned patent?

A. The abandoned patent. They may be straight or bent in

either. In this abandoned patent, not being immersed in the car-

bid the carbid got up into this large tube and this wire was intended

to clear the carbid out of the inside of the tube.

By Mr. Offield:

X Q. 76. And not from the mouth of the tube?

A. Well, around, it did not collect so much there,

X Q. 77. Did you ever manufacture an acetylene lamp of any

kind with the end of the red that extended through the water tube

projecting at substantially right angles to the body of the rod?

A. Yes sir, that large gang lamp that I spoke of.

X Q. 78. Did you ever manufacture a small lamp with the end

of the rod bent, such as for a bicycle?

A. Never.

X Q. 79. Did you ever manufacture a miner's lamp with the rod

bent such as is shown in the re-issued patent?

A. Never, no.

Mr. Rice: I object to that. Do you mean a miner’s cap lamp,

a miner’s lamp may be a gang lamp and if you take one of those

44 By the Court:

X Q. 80. As T understand the only miner’s lamp that you made

with a bent rod, which it might be called, was this large gang lamp?

A. Yes sir.

X Q. 81. All other lamps used by miners you have made with

the straight rod?

A. All the small ones, yes sir.

By Mr. Offield:

X Q. 82. Now, you started to manufacture miners’ lamps at

about the same time that your application for the original patent

was applied for, that is the patent No. 821,580.

Mr. Rice: I object to the question. What do you mean by miners’

—_

FREDERIC E. BALDWIN ET AL. 25

lamp? Miners’ cap lamp or miners’ gang lamp, because it makes

a material difference?

Mr. Offield: Well, either. I do not see as it makes any difference.

A. | manufactured the large gang lamps about that time.

X Q. 83. And you began to manufacture a miners’ lamp to be

earried upon a miners’ cap or other parts of the person of the miner

in about 1905, as IT understand you?

A. The latter part of 1905.

X Q. S84. But these lamps that vou first manufactured, did they

have a valve upon the rod that extends through the water tube, or

were they of the valveless type that has been offered here in evi-

dence?

A. These cap lamps were of the valveless type.

X Q. 85. Isn’t it a fact that vou have sold to a great corporation

known as the Union Carbid Company a good many hundred

45 or possibly thousands miners’ lamps to be carried upon the

caps of the miners?

Mr. Rice: TI object to the question.

The Court: Strike out “a great corporation.”

The Witness: No, I never sold them any.

X Q. 86. You never sold any miners’ lamps to the Union Carbid

Company?

A. I sold a sample, gross or so, that is all.

X Q. 87. What were those lamps to be used for by the Union

Carbid Company ?

A. Miners’ caps.

X (. 88. To be resold by them, or to be given away?

A. I do not know, sir.

XQ. 89. Don’t you know that the Union Carhid Company has

quite extensively conducted a campaign for educating the miners

to use acetylene lamps and thereby increase the sale of carbid?

Mr. Rice: T object to the question as purely irrelevant.

(Discussion between Court and Counsel. )

The Court: Objection overruled.

The Witness: T have always felt that the Union Carbid Company

did not do any introduction or take any interest in the acetylene

business until after three or four years after we had had all the

hard work, and that they then tried to reap the benefits,

eae Q. 90. By “reap the benefits” you mean by selling their ear-

id’

A. No, by buying lamps and trying to make some money.

X Q. 91. The Union Carbid Company never manufactured an

acetylene lamp for mining purposes?

A. No sir.

46 X Q. 92. Is it not a fact that the Standard Oil Company

has endeavored to discourage the use of acetylene more or

less in mines?

4—323

26 ABERCROMBIE & FITCH CO. ET AL. VS.

Mr. Rice: I objeet to the question.

Mr. Offield: I withdraw the question.

X Q. 93. Please state whether or not the miners’ lamps of types

other than the acetylene lamp are in very common and general use

throughout certain parts of the United States today?

A. Well, I have not been selling lamps now for several years, but

I understand that acetylene is rapidly displacing oil, to how large

an extent I am not capabl> of saying.

X Q. 94. You know hat there are a number of states that have

laws which prevent the use of acetylene lights in mines?

A. No sir.

X Q. 95. You have no knowledge of that?

A. I know that they changed the law in lows

X Q. 96. I am not referring to that state—you do not know that

to be a fact?

A. I do not know of a state in the Union where acetylene lamps

are not used in the mines.

X Q. 97. And you do not know it to be a fact that fully one-half

of the lamps in use today in the mines are of the oil burning type?

A. I doubt it.

By the Court:

X Q. 98. Referring now to the re-issued patent, and ite parent

did you ever manufacture, or cause to be manufactured cap lamps

with a bent rod, or were they alwavs manufactured with the straight

rod?

A. Yes, thev were alwiys.

47 XQ. 99. Then the only bent rod construction was this big

gang lamp?

A. Yes sir, on account of the large diameter.

Redirect examination by Mr. Rice:

Re-D. Q. 100. Referring to this lamp shown in patent No, 656874,

the flow of water through the tube was controlled by this valve B,

was it not?

A. Yes sir, entirely.

ALFRED W. Proctor, called as a witness in behalf of the com-

plainant, after being duly sworn, testifies as follows:

Direct examination by Mr. Rice:

Q. 1. Will you please state your occupation, Mr. Proctor?

A. I am a consulting engineer and mechanical expert.

Q. 2. What mechanical training and experience have you whieh

enables you to testify as a mechanical expert?

A. My early education was received in the trade schools of Boston,

and after that I took a three years’ regular course of study in mechan-

ical and constructing engineering at the Massachusetts Institute .of

Technology, where I was trained in the theories and principles of

. GRECO LAE LORE PONTO SSS QO eR . reeeeeemenmnerens . ee

—_—

FREDERIC E, BALDWIN ET AL. 27

mechanical sciences and received much instruction in machine shop

work and laboratory work and precise measurements.

I have since been employed by many manufacturing companies,

superintending the construetion and operation of machinery of va-

rious sorts.

During the past fifteen years, I have been in consulting engineer

practice, and have also been a machine shop foreman and

48 have worked at the bench, and I have owned and operated a

manufacturing shop.

I was for seven years a member of the examining corps in the

United States Patent Office. where 1 was constantly engaged in com-

paring the structures of patent applications with structures of prior

arts.

I have been employed in numerous eases as consulting engineer

to make tests, experiments, calculations and reports on machinery,

and this has been true in a number of cases in tests and reports on

hydraulic machinery and hydraulic apparatus, and tests and reports

relating to the flow of water.

T have used and experimented with, te-ted and reported upon

acetylene lamps and particularly portable lamps sueh as is before

the Court in this suit. and T testified in the litigation against Grier

Company in Pittsburgh.

I have also heen experimenting with these lamps for a number of

years as a rider of bicycles and motoreyeles,

I have testified in many patent suits as a mechanical expert.

Q. 3. Have you read the re-issued patent of Baldwin No, 13.542

here in suit, and if so, do you understand the construction and opera-

tion of the lamp therein set forth, particularly referring to Claim 4

of the Patent?

A. 1 have and do.

Q. 4. Will vou please state what the mechanical attributes are of

the lamp construetion, particularly specified in Claim 4 of. this

patent?

A. The lamp specified in Claim 4 of this patent will comprise

four principal elements or features, The water reservoir, the earbid

container, the water feed and the burner.

49 Claim 4 refers to a lamp and contains these principal ele-

ments, but particularly relates to the water feed. T would like

to say a few words about the main features before referring to the

water feed, which is particularly referred to in this claim. The

water reservoir in a lamp of this sort, that is a small miner’s cap

lamp, contains a very limited amount of water, scarcely more than

an ounce or two. And this water is required to flow out of the

reservoir during the space distributed over about two hours or more

of time so that the quantity flowing in any small period of time.

a a minute or a second, is exceedingly limited. Of course, it is

necessary for the flow to be substantially uniform, and distributed

Ina uniform manner over the entire period of the operation. Theo-

retically, this might be accomplished by a simple hole or perforation

or an opening, and that would work if the water were chemically

and physically pure. In that case, the water would continue to flow

. , —_— > EE ON ING RON SR aR

— meee . —_ ee capadieci ieee sre . ” : mre omy SRF .

28 ABERCROMBIE & FITCH CO, ET AL. VS.

in sufliciently small quantity, but practically all water contains a

large amount of organic matter, and also mineral particles of dust,

and with such a small quantity as is involved here, a small crevice

or opening would he either totally or partially clogged up very soon

and that would either change the flow, or cut it off. Accordingly,

the plan of a simple crevice or hole of that sort is not practicable.

Another plan is referred to in the patent specification. Now, the

water feed referred to in this Claim is a plan of getting the slow even

feed required without any of the difliculties as mentioned.

Coming now to the second feature, or element, of the lamp, the

carbid container, this is also a small vessel, and contains a

50 limited quantity of caleium earbid which is a erystalline rock,

and comes in small lumps, so that the container will be half

full of these lumps, when the lamp is started. When hydrated, the

carbid changes its form and lhecomes powdery, and it may be light

or feathery, like ashes, or rather dense and tightly packed like damp

sand, depending on the conditions under whieh it is hydreted,

It also swells when it is hydrated and nearly fills the container,

The carbid container of course also affords the only gas ehamber or

gas storage space that there is in this lamp, and that is very limited.

For that reason, the generation of gas must be also very uniform in

a lamp of this class because it must be produced substantially as it

is consumed, There is no storage space to take eare of any accu-

mulation, therefore, the water fed must be even and regular for this

cause,

The fourth feature I spoke of, the burner, requires no special

mention except that it uses a very small flow of gas, about one-eighth

of a cubic foot per hour.

Now, referring particularly to the lamp referred to in Claim 4,

and the water feed of such lamp, I might refer to this drawing en-

titled Complainant’s Commercial Lamp.

Mr. Rice: I offer in evidence the drawing, Complainant’: Com-

mercial Lamp, as Complainant’s Exhibit 9.

(Marked Complainant’s Exhibit 9.)

The Witness: This illustrates the water reservoir, the carbid con-

tainer and the burner, all marked with the appropriate inscriptions.

The water feed itself is referred — in this Claim as “a water

51 tube extending from the former,’—that is, from the water

reservoir,—‘‘a considerable distance into the latter,’’-—that

is, the receptacle for caleium carbid,’”-—and adapted to be imbedded

in the mass of carbid in the receptacle.

There is also specified, “a rod extending through the water tube

“and constituting a stirrer to break up the slacked carbid around the

“outlet of the water tube.”

The water tube is shown in black section, on this illustrative

drawing and is marked “water tube.” The water controlling rod

is shown extending down through the water tube and is marked

“restricting rod.” The water tube, it will be observed, is carried

into the body of the carbid in the receptacle. In other words, car-

ried a considerable distance into the receptacle for caleium carbid,

4s GARR AO Se es PM Medi Ag Teter wg 5, - SERA PREY MEAP SORE

>

FREDERIC E. BALDWIN ET AL. 29

and the stirrer is a prolongation of the water controlling rod at the

bottom and is labelled “stirrer.”

As to this water feed, there are two principal features and they

are referred to in combination in this claim.

I have here another drawing entitled, “Proctor Flow Diagram.”

and which illustrates to actual size, or rather to an exact scale, the

sections of the tube and rod in the complainant’s actual lamp, this

being cross section, 20 times enlarged, Fig. 1. You will see that

the tube has a duct or bore of comparatively large size, and there is

a rod or wire within the tube also of comparatively large size

52 which affords a space between the two, or crevice of con-

siderable area, That is to say, there is a considerable surface

on the inside of the tube and a considerable surface on the outside of

the rod which are in contact with the descending stream of water.

The tube is also a comparatively leng tube for it extends from the

reservoir clear down to the carhid container. Due to these various

features, there is a large amount of retarding surface afforded to

obstruct the flow of water which descends in an even sheet in con-

tact with the wall. In this way, the flow is cut down to the small

amount required although the actual crevice is not so thin as to be

readily obstructed by the particles of mineral and organie matter in

the water. In other words, the actual crevice is big enough in area

not to be obstructed by particles in the water but the amount of

surface, retarding surface, is so great as to cut down the flow to the

amount required, the very small flow that IT have mentioned.

Mr. Rice: I offer in evidence the drawing referred to by the

Witness,

(Marked Complainant’s Exhibit 10, Proctor Flow Diagram. )

The Witness: Fig. 2, is a simple bore or hole of the same area as

Fig. 1. In other words, I have calculated the area of that white

section, and laid it out in Fig. 2, and it has this size showine the

large amount of actual area. Now, by experimenting, 1 found that

a hole of that very much smaller size (these are all twenty times

enlarged, there is the actual article, if you will look through

53 (indicating), will flow considerably more water than this

Baldwin water feed, which has considerable larcer area. That

shows that the flow is cut down jin the manner I have said by the

surface friction for the retardation. Of course, this small hole. Fig.

3 would be quickly clogged up by the sediment in the water, and

that is the practical result.

By the Court:

Q. 5. IT want you to give me that point again?

A. Fig. 2 was drawn by me to show simply an opening having

the same cross sectional area as the cross sectional area of the actual

Baldwin feed. All twenty times enlarged.

Now, Fig. 3 is another view made by experiments from an actual

orifice whieh will flow considerably more water than the actual Bald-

win feed. It will be seen that this is a very small hole, and vet it

will flow more water than the other, ;

—_— spear Lt, FELT NT FO CSA TG RE YB TA i i Le lk act

at —

30 ABERCROMBIE & FITCH CO, ET AL. VS.

I here produce the actual orifice from which Fig. 3 is drawn.

Mr. Rice: I offer in evidence the plug containing the orifice which

the witness has stated will flow somewhat more water than the actual

Baldwin lamp.

(Marked Complainant’s Exhibit 11, illustrative plug.)

The Witness: Summing up briefly on this point that I have just

made, the water feed referred to in this claim affords the extremely

small flow desired without liability of stoppage and without

m4 using a regulating valve. A second point on this same sub

ject is that there is a comparatively large opening for the

water flow, that is, an opening of considerable cross sectional area

as distinguished from this annular shaped, but this annular shape

is advantageous in that no particle can very well beeome lodged so as

to obstruct the whole ring, and it would not seriously cut down the

flow owing to the ring shape, so that there are two points, one, this

large area, and this ring shape.

IT will now refer more particularly to that part of the Claim which

states that the tube and rod are carried down into the earbid con-

tainer. The result of this feature is that the tube is always im-

bedded in the earbid. This is plainly shown from the drawings,

Complainant's Commercial Lamp Exhibit No. 9. Bearing in mind

what IT have stated about the carhid hydrating, it will be evident that

the result of the flow of water is to hydrate the carbid around the

outlet in such manner as is indicated on this drawing. In other

words, there would be a sort of a ball quickly created around the

outlet of the water tube. This would eut down, or in faet. stop the

flow, due to its pasty nature, and due to the expansion, except that

the stirrer is provided. By turning the stirrer the sludge ball is

opened up enouch to allow the water to continue to percolate through

and after that has once been done, the water will continue to perco-

late through with surprising regularity for a lone time thereafter.

The sludge ball which is quiekly formed, and which remains

55 continously throughout the operation of the lamp is there

fore a factor of its operation which must be constantly taken

into consideration and which as a matter of fact has an important

effect on the operation of the lamp.

By the Court:

Q. 6. What is the physical operation of the rod on that ball?

A. As a matter of fact. the turning of the rod has the effect of

opening up a erevice around the rod for about one hundredth or

one-half of one hundredth of an inch in width. and as this ball is

like mortar and attains a fixed condition of hydrating that crevice

will remain, and remains thro:ghout the life of the charge of carbid

in the lamp and allows the water to percolate throuch.

Now, that brings out very well the next point, that by means of

the stirrer the sludge ball is kept in proper condition. Tn other

words, the crevice is opened up: and of course also the water tube

can be cleaned by that same rod. Furthermore, the imbedding,. of

GEE MIELE EIN ORY ER Stade lp? GE aT Heer . " ene |

FREDERIC E. BALDWIN ET AL. 31

course, allows a comparatively long tule and rod, both of whieh in-

crease the retarding friction.

I next come toa very important point of the operation and which

brings in the faet of this sludge ball. The gas pressure in the carbid

container will actually vary somewhat. Carbid lumps vary in sensi-

tiveness and as the space there is so very small it will be inconeeiv-

able that the generation of gas could he absolutely uniform. There-

fore, there are minor variations of pressure of the gas in the carbid

container, Now, the effeet of the sludge ball which is formed

56 around the outlet is that it makes the lamp comparatively in-

sensitive to variations in the gas pressure,

In other words, the sludge ball has the effect of so surrounding

the water outlet that the water continues to percolate down and

through that ball at a substantially uniform rate, regardless of these

minor variations of the gas pressure and that is, of course, the resu!t

desired, It is desirable, in other words, that the feed should remain

continuous notwithstanding the fact that the gas pressure may have

fluctuations; furthermore it makes the lamp relatively insensitive

to the drop of the water in the reservoir. Of course, when the re<er-

voir is full. the head of water is rather greater than when the reser-

vir is nearly empty and the wick effect, that is the percolating effect,

of this ball of sludge which remains continuously in existence after

the lamp is started seems to make the flow substantially even and

constant regardless of the falling head, so that the lamp burns as

brightly at the finish as it does at the start.

By Mr. Rice:

Q. 7. L think you might bring out just what you mean by the

head effect of the gas pressure?

A. The water reservoir is several inches higher than the outlet

of the tube in the carbid container and of course following the usual

hydraulic principles, the higher your reservoir the deeper the water

in the reservoir above the final outlet of the discharge pipe, the more

head or pressure there is to the water. The usual hydraulic expres-

sion is to say “head of water,” meaning available pressure at the out-

let, and the point IT was making is that as the water falls in

a7 the reservoir that available pressure or head becomes less,

due to the fall of the level.

Q. 8. What effect does it have on the gas pressure in the lamp, if

hot counteracted ?

A. If this were not counteracted in the manner I spoke of by the

effect of the ball of sludge, the gas pressure would fall becanse other-

wise the gas pressure of say two and one-half or three inches would

be greater than the water pressure and the water would not come

down through. Therefore, summing up this part, the lamp is com-

paratively insensitive to variations in the effective water head which

is due to the imbedding. Also, the lamp is insensitive to gas pressure

variations. The sludge ball acts like a wick and feeds the water

regularly regardless of variation of pressure of gas in the container.

Q. 9. I think vou might elaborate that point also.

A, I mentioned the fact that the gas pressure necessarily will fluc-

32 ABERCROMBIE & FITCH CO. ET AL. VS.

tuate more or less in this container due to the varying activity ¢

‘arbid and it will perhaps be between two and three inches, and the

it may go up to four or five inches. There are such cases. Now, |

we had a simple tube not imbedded in the carbid, the effect of th

pressure jumping up would be to shut off the water because th

pressure in the container would be greater than the head of wate

in the water column, therefore the flow would cease or, it is cor

ceivable that it might even be blown back, T mean the water in th

tube, by the excess of gas pressure in the carbid container, Eithe

of those results would be bad.

By having this water tube carried down inte the carbid containe

the ball of sludge colleets around the outlet and acts like a

58 absorbent wick so that even if the gas pressure does vary, ¢

goes up to five inches, the water will not be blown up throug

the water tube and the flow will not even be cut off but will com

down in the same regular manner as before.

T have made numerous experiments with these lamps. Thay

taken a manometer tube which is a simple glass tube arranged so ¢

to indicate inches of water pressure, and attached it to the carbi

container so as to determine the pressure, and T worked the lam

under those conditions throughout its whole life of operation, th:

is about two hours. I have also attached the manometer to the burne

in order to determine what pressures might be obtained in the lam

without interrupting the water feed.

Now, alvo the effect of tmbedding the tube in the carbid and ol

taining the sludge ball that IT have spoken of, is that the acetylen

gas is prevented from escaping into the atmosphere and fouling i

If the pressure runs up in this lamp it might result under other cor

ditions in the gas running up to the water tube and into the reservoi

and out into the open and a very small quantity of acetvlene is ur

pleasant and also unhealthy, so that by carrving down the wate

tube into the carbid and having it imbedded in this way. a ver

efficient check or seal is provided to prevent any escape of the acety

lene into the atmosphere and it works very efficiently in this wat

I have tested it up to 10 or 12 inches and without escape of the ga

under certain conditions, a very remarkable result.

Also this brings in another desirable point as to this water feed i

that it enables a high pressure of gas to be obtained in

59 small lamp. The tested available height is quite small an

therefore the water head is rather limited, but imbedding en

ables comparatively high pressure of gas to be obtained in a smal

lamp. This is partly due to the wick-like action of the sludge ball an

partly its effect in holding back the gas pressure from blowing uf

wards through the water tube.

Also, this feed is particularly adapted for lamps with a small con

tainer where there is liable to be very great variations in the ga

pressure.

Now, T now come to another important point, or attribute, of th

construction referred to in this claim which it that by embedding th

tube in the earbid, carrying it right down into the mass, the earbi

is made to act as a screen or filter and keeps the outlet of the wate

FREDERIC E. BALDWIN ET AL. 33

tube entirely away from the dust-laden gas in the container. The

acetylene gas as generated contains a considerable quantity of dust

and if the outlet of the water tube were exposed to this gas, as by

being in the upper part of the container those particles of lime would

deposit upon the outlet.

Baldwin Patent No. 656,874 illustrates such a construction as I

have just referred to where the outlet of the water tube is not imbed-

ded in the carbid and in that case a foraminous tube or screen has

been provided to keep the outlet away, so much as possible from this

dust laden gas which always has a tendency to deposit upon the outlet,

or cut off the flow. This method, providing a foraminous screen, was

one attempt to cure this difficulty, but the lamp referred to in this

Claim has a plan differentiated by carrying the water feed right down

into the body of the carbid so that the carhid and the sludge ball

that | have spoken of form a tost efficient screen to keep all

60 dust entirely away from the outlet.

Also, in the Baldwin lamp, the shaking of the water out of

the tube causing uneven generation of gas is prevented by the imbed-

ded tube and rod and the ball of sludge. Of course, these lamps are

carried on the cap of the miner, and the miner is moving his head

around and that might have the effect of shaking the water out of the

tube and causing a sudden generation of acetylene in an excessive

pressure. By carrying the water feed right down into the carbid

mass, the sludge acts as a check and prevents the water being shaken

out of the tube so that the flow is not changed from that cause. Also

of course, as a mechanical attribute, the entire water feed is cheap to

construct and durable and easy to repair.

By Mr. Rice:

Q. 10. Will you please compare the lamp, Exhibit No. 2, Defend-

ant’s lamp, with the construction pointed out in Claim 4 of the patent

in suit and state whether or not this lamp contains the elements speci-

fied in that claim operating as they are stated?

A. I find that defendant’s lamp contains a water reservoir, a recep-

tacle for calcium carbid, that is this part at the bottom, and a water

tube extending from the reservoir a considerable distance into the

latter. I find a water tube extending from the former, meaning the

water reservoir, considerable distance into the latter, that is into the

carbid container, and adapted to be imbedded in the mass of carbid

in the receptacle.

I further find a rod extending through the water tube—that is,

this wire which you can pull out by the handle at the top and

61 constituting a stirrer to break up the slacked carbid around the

outlet of the water tube, the rod operating to restrict and thus

control the flow of water to the carbid as set forth. I find that this

tube and red are such as referred to in this claim, having as a matter

of fact the same dimensions as the tube and rod in the complainant's

lamp, by actual measurement.

I find therefore that defendant's lamp is the lamp referred to in

Claim 4 of this patent, having the same features of construetion com-

a

34 ABERCROMBIE & FITCIT CO, ET AL. VS,

bined and operating in the sume way throughout to produce the same

results.

Q. 11. In making your comparison, did you note that in this

specific construction of lamp illustrated in the patent in suit, the

stirrer is formed by bending the end of the rod at an angle through

the portion which extends through the tube?

A. Yes, sir.

Q. 12. Will you state whether or not in such lamps as defendant’s

and complainant’s lamps any function is subserved by a. stirrer

formed by bending the end of the rod as distinguished from the

stirrer formed by leaving the end of the rod straight?

A. No, the same function is subserved in both cases.

Q. 13. On what do you base that statement?

A. The patent states the function of the stirrer as a device which

on proper manipulation may be used to break up the mass of earbid

surrounding the outlet of the water duct and which by having be-

come slacked and caked by the action of the water, prevents the

proper percolation of the latter to the unslacked carbid in the recep-

tacle.

IT have experimented with a straight stirrer and T found that

62 this result is obtained thereby, and IT have also experimented

with the bent stirrer and obtained the same result.

Q. 14. Have you operated the defendant's lamp?

A. Yes, sir,

Q. 15. Will you please state about how much the volume of car-

bid increases by hydration?

A. About two-fold.

Q. 16. Did you compare the relative dimensions of the com-

plainant’s and defendants lamps so far as the water tube and re-

stricting rede are concerned ?

A. I have, and found them identical.

Q. 17. That is to say, the tube is the same bore and the rod is the

same size?

A. Yes, sir.

Q. 18. Referring to Fig. 2 of the patent in suit, a valve M is shown

—will you please state what the function of this valve is?

A. This is a mere shut-off valve, not a regulating valve. Its fune-

tion is purely to shut off the flow of water completely and entirely

terminate the operation of the lamp.

Q. 19. The lamp, Complainant’s Exhibit 2, has a valve also, I

believe—will vou please state what the function of this valve is?

A. That is also a shut-off valve and its only function is to entirely

shut off the flow of water when desired and fully terminate the opera-

tion of the lamp.

Q. 20. On what do you base this last statement as to the function

of the valve?

A, It is easy to see that that is the case by a mere inspection of its

construction. I have also tested the lamp and I find that it cannot be

used to regulate the flow but serves only to cut off the flow of water.

FREDERIC E, BALDWIN ET AL. 35

Cross-examination by Mr. Offield:

X Q. 21. According to my understanding of your testimony,

the invention in the Baldwin re-issued patent was in provid-

i} ing a device with a rod that entered the water tube and re-

stricted the orifice to retard and thus control the flow of the

water?

Mr. Rice: IT objection to the question,

The Court: That is objectionable under our rule here.

X Q. 22. It was old in the art in acetylene lamps of all types

whether they be worn on the miner's hat or carried on the freight

car or used for house purposes, of having a water tube that extended

into the carbid?

Mr. Rice: I object to the question if your Honor please. | have

no great objection to his going into the prior art with this expert if

your Honor wants him to do it.

The Court: Objection overruled.

The Witness: IT am not familiar with any lamp of the class you

mention that answers that description as T understand it.

X Q. 23. That is, your testimony here is based on the supposition

that it was new in the art so far as you know it to extend the water

tube into the carbid—that was a new feature when you considered

this re-issued patent?

Mr. Rice: T object to the question as irrelevant and immaterial

for this reason, that it does not make any difference whether that

particular feature was new or old, it is not material in view of the

fact that it is not claimed in this matter.

The Court: Objection overruled.

The Witness: Well, as a mere fact of abstract definition.

b4 I think there were lamps and house generators that had that

isolated definition of some kind of a tube extending into

arbid under some special conditions.

XQ. 24. And that in this indefinite and hazy recollection which

you have of the prior art where the water tube extended into the

arbid, the end of the water tube was not surrounded by any per-

forated or foraminous structure?

A. Well, the prior art contains an enormous number of

patents and while the vast majority employed a foraminotis sereen,

there are a number of special lamps having special peculiarities of

operation, and I would like to have those identified by a picture, if

Tam going to talk about them.

X Q. 25. Please state whether or not in the prior art, as you

knew it, there is an acetylene generating apparatus, whether it he

small as a miner lamp, or as big as the Woolworth Building, where

the water tube extends into the carbid?

_ Mr. Rice: I object to the question as incompetent, immaterial and

irrelevant.

The Court: Objection overruled.

36 ABERCROMBIE & FITCH CO. ET AL. V8.

The Witness: I think there may be lamps or house generators of

the prior art that might answer that definition.

X Q. 26. Well, vou know there is that kind of a structure in the

art?

A. T have not examined the patents of the art carefully re

cently because there are a vast number of them. So I do not like

to declare exactly what there is or is not.

XN Q. 27. Isn't it true that if there is some patent in the

65 prior art showing the water tube extending clear into the car-

bid that a sludge will naturally be formed around the outlet

of that water tube?

A. It depends entirely on the construction and arrangement

and everything else.

X Q. 28. If vou have a tube extending into the carbid and vou

put water through that tube that comes in contact with the carbid

you get a sludge around there, do you not?

A. Well. you can imagine the water coming in through a

faucet or hose and in that event the mere force of pressur> would

drive away through the earbid—you would have no such forma-

tion——-

X Q. 29. Just imagine it coming in under an ordinary proper

flow.

Mr. Rice: I object to the question.

The Court: Sustained.

X Q. 30. If you have an apparatus with the water tube extend ag

into the carbid and the end of that tube is imbedded in the earhid

and vou allow water to flow by gravity from a tank above the tube

into the carbid, a sludge will be created around the end of that tube,

will it not?

Mr. Rice: Objected to,

Mr. Offield: I withdraw the question.

X Q. 31. Is there anything said in the Baldwin re-issued putent

about the effect of the head of water having any influence upon the

regulation or control of the lamp?

Mr. Rice: Objected to as irrelevant.

The Court: Objection sustained. The patent speaks for itself.

(Discussion between Court and counsel

66 By the Court:

X Q. 32. There is one thing that I should like to have somewhat

clear—you said that the bend performed no function in a so-called

miner’s cap lamp, as T understand yvou—is that right?

A. Yes, sir.

X Q. 33. Well, now, what does it do in a big lamp like Mr. Bald-

win spoke about—what is the function—why is there a bend?

A. Well, I think T ean imagine that in this way. When you

take a small lamp of the size of the complainant’s miner’s cap lamp

the sludge ball, the ball of hydrated carbid around the outlet will be

only about as big as a pea. Now, it is fully broken up by the ro

STREP et ROI ON SRD EN Baer Ren Hea TR MC RITA

—

PREDERIC FE. BALDWIN ET AL. 37

tation of a straight wire, a crevice one-half of one hundredth of an

inch is opened up all around, and it is sufficiently broken up for all

purposes. If you have a bent end to the red, it sweeps around through

the sludge, and, of course, also breaks it up, but it may not be more

thoroughly effective and probably would not be because the dust

or sJudge settles back under those conditions to where it was before

uid there is not any crevice opened up around the wire in exactly the

ame Way.

Now. when you have a rather large lamp, like a gang lamp, every-

thing is on a somewhat larger scale, naturally, and the sludge or

hydrated carbid which collects around the outlet will be larger than

apea. It will reach out further and it is necessary in that case to

weep around through it in order to break up its outside.

X Q. 35. Then as | understand your answer, the bend at the

end, putting it colloquially, does more stirring than if it was not

bent, in a large lamp?

A. Yes, sir, in a large lamp.

ivi Br. Mr. Offield:

X Q. 36. In that portion of the specification of the re-issued patent

between lines 54 and 64 which you referred to on page 2, is there

invthing said in there about a crevice in the sludge mass?

A. Well, the words simply are, “used to break up the mass

of carbid surrounding the outlet to the water duct.

X Q. 37. Now, speaking from a practical or a mechanical -tan--

point. when you have in mind the breaking up of a mass of meterial,

lo you consider that forming a little crack in that mass is breaking

the mass up within the ordinary understanding of the term?

A. T think so, especially as IT have used the expression ‘open-

ing up a crevice” in my testimony: of course, there is nothing solid

about this sludge ball and the effect of opening up a crevice is to one:

up cracks throughout the mass.

X Q. 38. That sludge ball is saturated material, it is not, it is wet?

\. It is damp.

XQ. 39. And you crack damp material by rotating a round wire

in it, is that vour theory?

A. Yes, sir.

X. Q. 40. Now, in the operation of the Baldwin lamp, you rotate

the wire, do vou break it up, give it several turns?

A. Yes, sir.

XQ. 41. Can you rotate the wire of the Baldwin lamp as it stands

there now?

A. Yes, sir.

X Q. 42. How far?

A. (Witness rotates wire.)

X Q. 43. Do you not know it to be a matter of practice that the

~ is reciprocated vertically in the general manipulation of these

amps?

A. No, the directions state to turn the rod and T might say

that I had one of these lamps and operated it before T was re-

tained in any of this litigation and I had always turned mine

to bring up the flame.

—_—_ PIE BE TTT LTPP OTIAY yh ON ENN POM LR SATS DY MEENA ES ATR

einen OF AA RITA ew NA Nk

38 ABERCROMBIE & FITCH CO, ET AL. VS.

X Q. 44. Is there any different effect in reciprocating the rod

vertically or turning it upon its own axis—is there any different

effect in increasing or decreasing the flow of water?

A. Well. it) is possible that when vou vertically reciprocate

the rod you might create a sort of pumping action because if vou draw

the rod far enough into the tube you will have a water filled space

under the rod and then when you push the red down you will expel

that water.

(1 would like to note that I turned the stirrer in response to the

request for a demonstration and after a little while the flame in-

creased, or came up.)

XQ. 45. Please state whether or not there is any different action,

in so far as the tlow of water is concerned, between the Baldwin

lamp of the re-issued patent and the Baldwin lamp of Fig. 6 of the

original patent of 1900 with the foraminous tube in it?

A. Yes, sir, certainty.

X Q. 46. There is a difference?

A. Yes, sir,

X Q. 47. That is. insert the perforated tube of the original Bald-

Win patent in that strueture--what ts the difference in operation of

the lamps in so far as the water reculating means there is shown?

By the Court:

X Q. 48. He says to take the Baldwin perforated tube of the origi-

nal patent, the so-called abandoned patent, and insert it into the pres

ent re-issued structure and what is the difference between that action

when so inserted and the action of the Baldwin re-issued lamp?

A. There would be too much water feed. Many times

69 too much, in all probability, because the sludge hall of course,

has an effect in cutting down or assisting the cutting down of

the flow, as well as the retarding surface in the tube. Of course, in

the original Baldwin lamp the regulating valve is provided which

can be adjusted as finely as desired and in addition to that. of course,

the lamp would have an entirely different character of operation and

would not have any of the mechanical attributes, or characteristics

that T took up before in my testimony.

By Mr. Offield:

X Q. 49. So that the formation of the sludge ball at the lower end

of the water tube of the Baldwin lamp in your estimation is one of

the essential things to the successful operation of the lamp?

A. Yes. sir, that in combination with the water feed,

X Q. 50. In defendants’ lamp is the valve as employed in that

lamp capable of regulating the flow of water to any extent?

A. No, you said the valte, did vou not?

XQ. 51. Yes?

A, No.

X Q. 52. In your estimation it is merely a valve that is capable

of opening the duct or capable of closing the duct?

A. Yes, sir, unless extraordinary careful manipulation is ex-

ercised such as a scientist or laboratory assistant might exercise.

ENGL JON SDU LG BRE ISB eanyrg ’ ee ea, *

FREDERIC FE. BALDWIN ET AL. 39

‘rom an ordinary practical standpoint it cannot be manipulated

xcept to shut off and turn on the flow.

XQ. 53. In view of your study of the Baldwin re-issued patent,

what is the reason for extending the water tube into the car-

(0 bid compartinent for a considerable distance?

~ Well. TL enumerated a large number, [ think about

welve reasons in my direct testimony,

XQ. 54. One of the reasons was that you wanted to get the water

ube into the carbid mass?

\. Yes, sir, that was the reason for extending it-—-one rea-

on.

X¥ Q.55. Another reason was that you wanted to get the long water

ube from the water compartment downward ?

3. It is not absolutely necessary that it) go downward in

der to give the retarding surface that [ spoke of.

X Q.56. Tt may be twisted or curved, or something of that kind?

\. Well, that would introduce other problems that I would

jave to separately consider.

X Q.57. What reason was there for extending the water tube into

he carbid other than to get the end of the tube buried in the mass,

to vet a long frictional surface between the top of the water tube

ind the bottom of the water tube?

A. To get the numerous effects that 1 spoke of. For ex-

ample, to get the screen effect, to get the dust laden gas away from

the outlet.

XQ. 58. Well, that is an advantage that is inherent in any tube

that extends into the carbid, but my question is from the viewpoint

of the patent, we will say, what was the reason for extending the tube

into the carbid?

A. 1 do not understand the question any differently than

my previous answer, that is to get the various conditions that T have

spoken of.

X Q. 59. Please state what is the meaning of the word, in your

estimation of “considerable” in Claim 4?

A. The words are “extending a considerable distance into

71 the latter.” | think that means what is otherwise expressed

by a statement “introduces the water into the body of carbid

which said receptacle is designed to contain.” In other words, car-

ried well into the mass of the carbid in the container,

X Q. 60. In vour understanding for the operation of the lamp,

should the tube be carried into the carbid into the middle of the

body?

A. It should certainly be carried well below the surface of

the carbid when it is in its fresh condition.

X Q. 61. Would it make any difference in the operation of the

lamp if it were carried within a quarter of an inch from the bottom

of the carbid chamber? ‘

A. T do not see that it makes any difference if the tube is a

little longer than is shown in my drawings so long as it be long

enough to reach well below the surface of the carbid.

X Q. 62. Now, supposing the water tube was a little shorter than

that shown in the drawing, to simply come in contact with the top

40 ABERCROMBIE & FITCH CO, ET AL. VS.

surface of the carbid, would that make any difference in the opera-

tion of the lamp?

A. Yes, sir, that would obviously make a difference because

in that case there would be no opportunity for this ball of sludge to

form.

X Q. 63. That is, no sludge ball would form around the mouth

wf the water tube if the tube merely came in contact with the top

surface of the charge of carbid?

A. No, sir. not the same way at all.

X Q. 64. Why not?

» A. Beeause the tendency of the carbid when it hydrates, is

to hydrate in a very light and feathery manner, and if you did not

have the water tube imbedded, the sludge ball does not attain

72 any such consisteney as 1 described, but would be simply gry

particles without any effeet——

XN @Q. 65. Isn't it a fact that from your own drawing that if the

water tuba only came in contact with the top of the carbid that as

soon as the carbid was hydrated, the unslaked carbid would be pushed

up bevond the end of the water tube and the hydrated carbid would

form around the mouth of the tube?

A. No, that is not the effect, if IT understand the question.

Well, my answer was that would not be the operation.

Recess until 2 P. M.

After Recess.

2 O'clock P.M.

Aurrep R. Procror resumes the stand.

Cross-examination continued:

Mr. Offield: Just one question, I think, that I want te ask tas

witness, your Honor.

Br. Mr. Offield:

X Q. 66. Is it not a fact that the gas pressure within the carbid

chamber of the Baldwin lamp has the effect at all times of retarding

the flow of water through the tube?

A. Yes, to this extent, that the gas pressure in the container

directly opposes the head of the water afforded by the height or the

reservoir. There is, therefore, a differential had between the number

of inches of the water column and the number of inches of the gas

pressure in the container. That differential may be termed

73 the effective head and to that is to be added, of course, the

absorptive effect of this ball of sludge at the bottom.

X Q. 67. But irrespective of the absorptive effect of the carbid, or

the effect of the ball of sludge in the mouth of the tube, it is a4act

that there is a constant back pressure upon the water column so long

as there is gas pressure within the carbid chamber?

A. Yes, but it is necessary to bear the fact in mind that the gas

pressure does not directly reach the outlet of the water column

because there is this interponent ball of slydge.

X Q. 68. It has to pass through the body of the carbid and through

——

FREDERIC E. BALDWIN ET AL. 41

the sludge, but it ultimately reaches the mouth of the tube so that

there is a gas pressure on the water column?

A. Yes, it reaches it, except the effect is modified by the inter-

ponent parts.

X Q. 69. Interponent subject matter that may be at the mouth of

the tube. That is all.

A, Yes.

Redirect examination by Mr. Rice:

Re-D, Q. 71. Will you state, referring to this last question, what

that difference in pressure is, in figures, that is, the amount of pres-

ure in gas inches which the Baldwin lamp will sustain, operating

normally with the end buried in the carbid and the pressure which

would be suflicient to cause a blowback if the sludge were not around

the mouth of the tube?

A. Well sceording to my experiments, the actual plaintiff's lamp,

with the waver tube imbedded, will operate continuously and success-

fully with water pressures of between 21% and 4 inches, and there

will be no blowback of the acetylene through the water tube under

these conditions, and no interruption in the water flow. On the

other hand (if the tube is not imbedded in this way the gas

i4 will blow up through the water tube at about the pressure I

mentioned.

Re-D. Q. 72. What pressure?

A. 2's to 4 inches, and of course under those conditions the feed

will he interrupted.

Re-D. Q. 73. Tow did you determine by your experiments how

much pressure the lamp would stand without a blowback ?

A. By the use of a pressure gauge, which, for that particular ex-

periment, | applied directly to the burner so that I could run the

pressure up beyond its condition in normal working.

Re-D. Q. 74. What was it?

A. Tow high was the pressure.

Re-D. Q. 75. Yes.

A. Well, it varied under different conditions. Under some con-

ditions the pressure would run up as high as twelve or fourteen

inches, a remarkable result, without any blowback. That, of course,

is very much higher than any pressure ever attained in practice.

The Court: What is the pressure attained in practice if you know?

_ The Witness: Between two and one-half and three and one-quarter

inches, as an average, but it fluctuates either side of that for about

an inch more.

Re-D. Q. 76. Referring to this Baldwin patent No. 656,874, the

water feed, if I have understood you correctly, in this patent is deter-

mined by this valve D?

A. Yes, sir.

Re-D. Q. 77. Will you state briefly what the difficulties. if any,

are in attempting to control a feed of water through a tube in a lamp

of this character by means of a valve solely?

6—323 ‘

— a as Rs od SAREE RNS LA OPEL TS IACI 2 TED: BERENS ORI

4? ABERCROMBIE & FITCH CO. ET AL. VS.

A. By the expedient of using a regulating valve which can

75 be finely adjusted, it is, of course, theoretically possible to

obtain as slow a feed as is desired, but practically the use of

such a valve is subject to the objection and difficulty that it is hard

to adjust. It requires considerable care to adjust it to just the exaet

speed, and perhaps some experiments to know just what the effect

is going to be. And furthermore, after it has been adjusted, it is

likely to require readjustment because the crevice afforded by the

valve is so minute that it will trap the particles in the water and the

flow will be changed so that the valve will be required to be read-

justed. That is a second point. First, the difliculty, and second the

necessity of change. And thirdly, the valve is liable to corrode and

is somewhat troublesome to construct and diflicult to make and liable

to get out of order and so forth.

Re-D. Q. 78. Can vou give the Court any idea about the crevice,

the size of the crevice necessary to produce the proper feed of a lamp

of this character?

A. Yes, I have here a drawing which T have entitled “Amount of

valve opening 20 times enlarged, giving the same as the Baldwin

flow. That is, the width of a crevice on the same scale as the draw-

ings of my diagram entitled “Proctor flow diagram,” and it will he

seen from that how likely the valve opening is te collect the minute

particles of sediment in the water and become obstructed. This

white line represents the crevice. It is a scale width about equal to

the opening of the valve.

Re-D, Q. 79. That, you say, is enlarged twenty times? |

A. Yes, sir. |

Mr. Rice: I offer in evidence the diagram just referred to

76 by the witness as Complainants’ Exhibit 12, illustrating the

valve opening.

Same received and marked Complainants’ Exhibit No, 12

Xe-D. Q. 80. You testified, as you have said, in the suit of John

Simmons Co., and Baldwin against Grier Brothers in Pittsburg?

A. Yes, sir.

Re-D. Q. 81. IT hand you Complainants’ Exhibit No. 6, Grier

Brothers Lamp, and will ask you to state whether or not this is the

lamp in that suit?

A. It is.

Plaintiff Rests.

Defendant's Testimony.

Howarp M. Cox, called as a witness in behalf of the Defendants

being first duly sworn testified as follows:

Direct examination by Mr. Offield:

Q. 1. Please state what education and experience you have had

that enables you to qualify and testify as an expert witness in matters

pertaining to letters patent?

A. I graduated twenty years ago from the University of Michigan

at Ann Arbor, Engineering Department and for three years there

oe

LL LEER LES OLLEELSELIELIS ILLES BALDELLI A ‘ : ATTEN il

wa

FREDERIC E. BALDWIN ET AL. 43

after | practiced engineering. 1 then studied patent law, became a

patent solicitor and expert and have done nothing else ever since.

Q. 2. Have you read, and do you understand the specification in-

volved in re-issue patent No, 18,42 of March 11, 1913”

A. | have and do,

Mr. Oflield: 1 might state, your Honor, that instead of

7 proceeding first to a comparison between the re-issue patent

and the original patent from which it was re-issued for the

purpose of showing the invalidity of these claims as re-issue claims

Lam going to follow right on now into the prior art while this matter

is still fresh in your mind in order that we may show your Honor

the prior art structures and [think you will follow it better than in

the original outline of the case.

(). 3. Please state whether or not acetylene generators, or acetylene

lamps uniformly have a water reservoir, a receptacle for calcium

carbid and some means for conducting the water from the water

receptacle to the calcium carbid?

A. They all do except in that type of lamp where the carbid is

dropped in, or otherwise conveyed to the water, but there are two

genera! types of lamp and what you state is true of this type under

consideration.

Q. 4. Both claims, one and four of the reissue patent have the

following elements in them “a tube extending from the former a con-

siderable distance into the latter so as to be imbedded into the mass

of carbid contained in said receptacle.” Please state whether or not

you find in any prior art patent a construction in acetylene gener-

ating apparatus in which the water tube extends from the water

reservoir a considerable distance into the carbid chamber so as to be

imbedded in the carbid.

Mr. Rice: If the Court please, I object to that question on the

ground of the inclusion of claim 1. We have not relied upon

78 claim 1. I may say that there might be reasons why there

would be a discussion as to an infringement of claim 1, which

we have not—TI don’t mean to state here that we might not consider

claim 1 infringed, but there is argument on the subject of claim 1

which is not present as to claim 4. As we are satisfied to rely upon

claim 4 T do not see why the time of the Court should he wasted by

dragging claim 1 into this litigation.

Mr. Offield: The time of the Court is not going to be wasted, your

Honor, for the same clause and this same element appears in both

caims so that the answer of this witness as applicable to claim 1 is

just as applicable to claim 4. I include both the claims in here

because the same answer meets the same element in each of the

claims. Outside of the question T submit to your Honor that irre-

spective of the fact that complainant has abandoned claim 1 in this

case, T submit to vour Honor that we are entitled to show in this

proof the invalidity of that claim, that every element of that claim is

met in the prior art, and it is our expressed purpose to bring before

your Honor the distinction between claim 4 and claim 1.

Mr. Rice: That, of course, if your Tlonor please, is going to bring

44 ABERCROMBIE & FITCH CO. ET AL. VS.

up the question here as to whether Mr. Offield’s statement as to the

validity of claim 1 is correct. Now, T challenge that statement and

[ do not think he can show that claim 1 is invalid, but if we

79 are going to try out that issue of course this litigation is g: .ag

to take a much wider scope both as to the references involved

and as to the rebuttal testimony and all that sort of thing.

The Court: My view of the matter is this; you can, for instance to

illustrate, go to the file history and show the whole condition which

would be inclusive of claim 1. but we are bound to try only the issue

before us and that is claim 4. You may have much to say by

way of argument or not, T don’t know in respect of the construction

of claim 4 in the light of the specifications, but we are only dealing

with claim 4 here and it would only tend to confuse the issues to in-

terject possibly something that is not in the case. Of course, this

particular question is a matter of no consequence,

Mr. Offield: It is simply the questions that are going to follow

from this particular question. Every element of claim 4 is in claim

1 except the last clause. “the rod operating to restrict.”

Mr. Rice: Your Honor will also notice a slight difference in the

definition of the stirrer. Claim 1 savs “formed as a stirrer,” whereas

claim 4 says “constituting a stirrer.” Now there may be a very large

amount of argument in the question as to the difference between

“formed as a stirrer” and “constituting a stirrer.”

The Court: Yes, IT understand that perfectly.

Mr. Rice: And for that reason and to eliminate the argument

on that point, we have, inasmuch as our rights are fuliy

80 protected here as to this lamp hy claim 4, in order to simplify

this case as much as possible

The Court: T think it straightens itself out very readily. If

claim 4 and claim 1 have the same elements why you don’t gain

anything by dragging in claim 1. Insofar as they have different

elements, then you must confine yourself to claim 4. T will confine

the expert testimony to claim 4.

Mr. Offield: That question will be revised then.

The Court: That question may be deemed revised as referring

solely to claim 4, Mr. Cox.

The Witness: T will first call attention to the Lee patent, 619,046.

Q. 5. What is the date of it?

A. Issue February 7, 1899. By referring to the left side of the

figure it will be noted that the carbid is contained in the bottom of

a receptacle marked L. ;

Mr. Rice: Is that set up in the answer? T don’t seem to have a

copy of it. T don’t think it is in the answer, but it was in the Pitts

burgh case, go ahead.

The Witness: The water is introduced through a pipe W, which

comes up through the bottom of a cone shaped element marked M’.

There is a central opening, M, through which the water exudes or

flows and by this cone shaped element the water is distributed uni-

formly to various parts of the vessel in which it is contained, There

Crt ha eo OS ae

-

FREDERIC E. BALDWIN ET AL. 45

are a number of small tubes, M-2, which issue from this,

81 and they go into the carbid mass at various elevations. Some

enter above the carbid and some open up near and beneath

the surface and others go down almost to the bottom.

The Court: This is for generating.

The Witness: This is in a stationary pi at, ves, sir, Tt shows the

idea, however, that the introduction of the mouth of the tube into

the mass was practiced at that time. The broad idea of introducing

the water into the center of the mass is certainly shown in this

patent.

The Court: Can you put your finger on any reference in the

specification to that particular feature?

The Witness: Commencing on page 1, line 108, the specification

reads: “At the upper end of this tubular extension is a distributing

M into which the water is delivered. The lower part of this dis-

tributer has a cone M, formed in it so that the water delivered

at this apex flows down over the sides to the periphery at the bot-

tom of the distributer chamber M. From the bottom of this chamber

pipes, M-2, extend downwardly, these pipes being of different lengths

and having their discharge openings at different distances from the

center of the carbid chamber 1, so that the water, after flowing down

the distributing cone M, passes ont through these pipes and is de-

livered into the mass of carbid contained within the chamber at

points all through the mass.

Mr. Rice: Your Tlonor, since this has been read into the record,

I would like to have him, if he will be so kind, read in

82 the next ten lines and T think that will dispose of that.

The Witness: I will do so. “The mass of carbid is thus

acted upon by the water at all points and will produce gas simul-

taneously through the whole mass. I thus achieved two points, first,

the rapid manufacture of the gas and secondly, in the utilization of

the whole mass of carbid, and avoid the retardation of the work which

is caused by a crust forming upon the top of the body of carbid

when the water is only supplied at one or two points.”

This patent was referred to simply for the broad idea of intro-

ducing the water at various points into the center of the mass

through tubes having open mouths in the mass.

In the Buffington-British patent, (which is No. 6), various forms

are shown, This is No, 23,802 of October 15, 1897. Calling atten-

tion to Fig. 7, the carbid is contained in the chamber marked 3,

T believe, and it has in its center a tube 4 which has a mouth near

the bottom of the carbid charmber. This tube has a number of

orifices in it throughout its entire height and the tube is surrounded

by a porous material, or absorbent, for inereasing the distribution,

and thus the water is introduced at various points in the mass.

In Fig. 2, also, the open mouth of the tube is near the -bottom of

the carbid container.

_ In Bundy, 608.571, issued August 9, 1898, the tube is imbedded

in the mass, having an apertured tube FE in the carbid container,

C. The water is introduced through a pipe from above and the

SA PLA TIES NT BILL LG EILEEN IEG STE IGE TAS, LSPA ES LIOR EN RSEE STH i ENYA SAT OTR, A HON

ABERCROMBIE & FITCH CO. ET AL. VS.

apertures are located the en ire length of the tube from top

83 to bottom so that the water will enter at all points.

In Baulieu, 611,885, issued October 4, 1898. This is an-

other stationary plant but it shows a pipe. O, which has a water tube

and the lower end of this tube is located near the bottom of the

mass. Now the

The Court: Before we leave those, what function do these tubes

perform ?

The Witness: They introduce the water into the mass of carbid

and the ecaking, and all that would be the same as in any instance

of that construction. The idea of introducing it, or imbedding the

tube in the mass of carbid. is shown in the various constructions,

The phrase is, I believe. ‘a water tube extending from the

former a considerable distance into the latter and adapted to be im-

bedded in the mass of carbid,”

In the Handshy Patent. No. 91.152, issued August 5, 1892.

This is a lamp patent. a portable small lamp. and has a water reser-

voir Bat the top and a carbid container D at the bottom, with a

water tube TT extending from the water reservoir to the carbid con-

tainer. The lower end of the tube TI extends a considerable dis-

tance into the carbid container and is embedded in the mass of ear-

bid. A central rod D’ is in this particular form shown in the draw-

ing secured to the floor of the carbid chamber and extends up through

the water tube and has at its upper end a valve G. This co-operates

with a valve seat formed in a diaphragm F, which is described as

being flexible and constructed in this case, | believe. of rubber. The

gas pressure in the gas chamber, of course, varies with the

S4 generation of gas and the theory of operation is that as the

pressure beneath the diaphragm increases the diaphragm

is raised up to meet the valve and thereby throttles the flow of water

and reduces the generation of gas until the balance has been re

stored. As the question is limited to this feature of the mouth of the

water tube. or the tube being imbedded in the mass, | will not refer

further at this point to this patent.

In Iden patent, 637,934, issued November 28, 1899, the earbid

container is marked B and the water chamber is above it and marked

A’. There is a funnel shaped tube leading from the water chamber

to the carbid container marked 63 and this water tube extends a

considerable distance into the carbid container, and in all proba-

bility would be imbedded in the mass either at the very beginning

or soon after the commencement of operation. The leneth of the

tube can be noticed from Fig 2 and by laving this off in Fig, 1 it

would appear that the tube extends a considerable distance and

would probably be imbedded in the mass of earbid.

In the Strakosh patent, 610,150. issued August 13, 1898, is shown

a portable lamp of the bievele type, or similar type, and is pro

vided with a drum at the bottom having a capaciy? for three carbid

-artridges, so-called. In this patent the carbid cartridge is described

as a paste-board, or paper container, having carbid in it and this,

in the operation of the lamp, is punctured by the lower pointed ex-

tremity of a part 12. This part is a <leeve, or tube, having a ver-

Re eterna cernsee n merenenrenmessatc exer entre eo=e MCE <A

FREDERIC FE. BALDWIN ET AL. 47

tieal slot 9 and the water is introduced to the exterior, and through

the slot by a filter arrangement, which need not be described. In

the operation of this device the rod, 8, which carries the tube is

vertically movable and is held raised when a fresh charge is

85 hrought beneath the perforating point. When the operator

depresses the rod and punctures the container or cartridge,

the water flows down to the very center of the mass,

The Bundy patent, 660,889, issued January 5, 1899, has a special

water tube leading down into the carbid container and this has an

opening f near the bottom and the water passes through this open-

ine into—the central tube is surrounded by a porous container and

the water percolates through this and reaches the carbid.

In the Peck patent, 622.015, issued March 28, 1899, the carbid

container contains a special tube, G, and within this is a smaller

tube \ which contains water and extends from the top to the bottom

of the carbid container and the patentee describes the operation by

saving, “that the water is fed down through this inner spiral tube,

A. and issues from the crevices thereof during its entire length.”

This shows the idea of imbeddine the tube in the carbid and intro-

ducing the water at various elevations therein.

The Schmitt-British Patent No, 15,688, issued July 18 1898.

This is & type of a lamp of the kind under consideration. being

shown apparently in the form of a bicycle lamp, and by the way

there is, T believe. a model of this lamp which can he referred to.

In this, the carbid container is marked A and the water container

above it B. There is a duct leading from the water to the carbid

container and this duct incloses, or the portien of the duct has a

stem o. At the lower end of the stem is another duct marked .

The water is led into this part g through a tube or a wick, depending

on the different forms of the lamps shown, and the mouth of

6 this extends down a considerable distance into the carbid

receptacle and is adapted to be imbedded in the mass of

earbid. The drawing shows the carbid in’ fresh condition, ap-

parently, and it shows the chamber a good deal less than half full.

It is the practice, I believe it is the instruction in fact by the makers

of these lamps to instruct the user to fill the carbid container ap-

proximately full. Asa matter of fact T think in practice it is usually

filled a good deal more than this, but in any event in this Schmitt

construction, it would not he long before the mouth of the tube

would be imbedded in the mass of carbid even if it were not imbedded

at the starting of the lamp. It will be noticed that the carbid con-

tainer here extends up almost the same height above the mouth of

the tube as it does below it and while it is restricted, or tapered down

near the top, the capacity of the container above the mouth of the

tube would be between a half and a third of that below it.

The Court: The principle, apparently, is entirely different, isn’t

it?) The intent savs here “Can be moved up and down from outside

the lamp in order to clear the outlet opening” g.

The Witness: Your Honor, the water is led down through this

curved tube G, the function being to avoid the effect of vertical

vibration. The water is then led past the valve into what might be

48 ABERCROMBIE & FITCH CO, ET AL. VS.

termed a valve seat and duct combined, and the mouth of the water

duct, and the only duct that lets water into the carbid container, is

down, by measurement it is about half way between the top and the

bottom,

The Court: What is this? It says here “Lime and other obstrue-

tions?”

S7 The Witness: By “lime” he means sludge, and of course

the invention is not a question of words. It is a question of

things.

The Court: | am trying to find out what he referred to when he

said “lime,” whether that is the same thing.

The Witness: I understand it was said this morning that it was

lime, that is, the dust resulting from the generation of the gas, and -—

that was applied to that by Mr. Proctor this morning, so whether |

you call it sludge, or lime, that word [ remember was referre! to.

The Court: We can deal with the latter.

The Witness: The Schmitt patent obviously shows a construction

in which the mouth of the water tube extends a considerable dis-

tance into the earbid container and it certainly is adapted to be im-

bedded in the mass and it will be inbedded in the mass in the

normal operation very soon, if not instantly.

I agree with some statements already made that the patent draw-

ings can’t always be relied on for details and whether a user of

this lamp would fill the amount of carbid in there that the drafts-

man would put in or not would be varied with various individuals,

I presume.

Gaston, No, 668,288, issued February 19, 1901. This shows a

plant in which the carbid container is marked 28, or the outer shell

thereof at least. Within this is a basket which contains the carbid.

Within the center of the basket or container is a tube, 37, which is

a water tube and leads from a water supply 45 shown on the left

side of the figure.

88 The central water tube terminates near the bottom of the

the carbid container, the end of the tube being open and in

addition there are a number of orifices through which the water mav

escape into the earbid. In this patent, therefore, there is the char-

acteristic of a water tube extending a considerable distance into the

carbid container and adapted to be imbedded in the earbid mass.

Barratt-British Patent No, 2,699, issued February 7, 1899, the

water chamber is marked A and B and the water is led from the

chamber through a tube, which is not marked, but is shown at the

center near the bottom of the figure. The earbid container is not

shown in this patent because the patent dealt with a certain water

trap and carbid chamber cannot be stated as to size, but if we assume

that the normal practice would be followed in which the carbid

receptacle and the water receptacle are approximately the same size,

unless the shape were very unusual the tube would extend into the

mass. The tube does extend down a considerable distance from the

— chamber and is adapted to be imbedded in the mass of car-

id.

Hallowes and Tucker, No. 644,910, issued March 6, 1900. This

a i a i os we — ae i

ww

FREDERIC E. BALDWIN ET AL. 49

shows a bicycle lamp operating on a somewhat different principle

in that the flow of water is inverted. In this patent the carbid con-

tainer is marked A. Through the center, Jeading up from the

bottom of the carbid container is a water tube O. The bottom of the

tube is controled by a valve K and the water is supplied from

a water container which if both above and below the carbid cham! er.

The tube, however, does extend a considerable distance into the ear-

bid chamber, in fact, it issues exactly at the middle and the

89) tube is imbedded in the mass of the carbid.

In Windham British Patent No. 20,537, issued September

3, 1898. This is a portable lamp and was similar to one or two

previous constructions. It has a carbid container in which there is

acentral tube L, and this tube receives water from the water chamber

above and ts provided with several orifices at different heights for

permitting the emission of water into the carbid mass,

The Holiday British Patent 24.860, dated October 18, 1898.

This patent shows, for example, in Fig. 1, a carbid container a

above which there is a water receptacle c. There is a central duct or

passage leading from the water to the carbid chamber marked c2.

This extends a considerable distance into the carbid receptacle and

ix shown to be just above the carbid as it happens to be drawn in

the patent. It has a wick d4, in addition, which is described in the

patent as performing the function of making a uniform flow at all

times into the mass. This reference I don’t consider of great im-

portance in this connection for the wick functions, but the gen-

eral phraseology is responded to by this patent also,

Mosher Patent No, 644,439, issued February 27, 1900. This

shows a small portable lamp having a water receptacle B above,

and a carbid container C below. A water duct or tubing D leads

from the water to the carbid container and at the lower end thereof

has a conical element, E, through which the water issues to the tube

surrounding it. This tube terminates near the bottom of the carbid

chamber and thus extends a considerable distance into the carbid

container. Tt will not come in actual contact with the earbid

90 mass except as the carbid will creep in between the various

apertures in the surrounding tube. However, I imagine in

— operation the carbid would collect and imbed the water tube.

lat is all.

By Mr. Offield:

Q. 6. Please state whether or not you find in the prior art any

patents wherein a rod extends through the water tube and has a

stirrer at its lower end. In pointing out references of patents in the

prior art, you may only select those which actually show a stirrer

as distinguished from rods which extend though the water tube and

have merely a straight end which projects into the earbid?

A. The Kerr patent, 596,937, of January 4, 1898 shows a con-

struction responding to this question. The earbid receptacle is not

marked in Fig. 5 of the drawings, but is located at the bottom of the

tube D.’ The water receptacle is marked B and is shown at the

right side of the figure. The water is introduced through a syphon

7—323

PES ADSENSE pe OEN ANOLE ELEN NLM LIDS. 2) SB BS EP REET LIE LLP RO

50 ABERCROMBIE & FITCH CO, ET AL. VS.

wranged from the water receptacle to the carbid receptacle and

from this into a water duct B’ shown here in the upper central

portion of the figure. Extending down from this part B’ is a tube

marked V. This tube acting as a down take for water, and co-operat-

ing with the tube E,’ these two parts co-operate as a telescopic water

tube to take care of a certain vertical movement required in the

operation of the apparatus, but the two parts together form a water

tube. Extending down through the water tube is a rod. DJ and this

at the top has a hand wheel, and at the lower end a cross rod, which

is deseribed as a stir for breaking up the earbid at the lower end of

the water tube,

91 The Court: Now what does that do in that generator?

This is rather complicated, or a more elaborate piece of

mechanism.

The Witness: Yes. [don’t mean to take your Honor into the——

The Court: No.

The Witness: Reading from the specification, commencing line

1, page 2, “D* is an agitator rod extending downwardly through

the water supply pipe J*, and having an agitator connected to its

lower end.” The function of this cross piece at the bottom, which

is apparently not supplied with a numeral, is to break up the sludge

which may form around the bottom of the tube, and the funetion

of the parts so far as the question touches it, is precisely the same

as in the recital of the patent in suit. That is, there is a carbid con-

tainer with a water supply above, a duct, a tube leading from the

water supply to the earbid container and having its opening, or

mouth, near the bottom thereof, a rod extending up through the

water tube from the carbid container to a point where it may be

manually operated. The rod js provided at its lower end with a stir

which is located in proximity with the lower end of the water tube.

Gaston Patent, 668,288, has a water tube extending down into,

and largely through the carbid container. and having a rod, 38,

extending down through the tule, and provided at the lower end with

a part marked 39, which is shown in plain detail in Figs. 3 and

4. By rotating the red 38 by means of the handle 40, which is pro-

vided for it at the upper end of the device, the sludge and

92 lime may be removed and the action of the water with the

earbid facilitated. That is all.

By Mr. Offield:

Q. 7. Please state whether or not you find in the prior art any

acetylene generating apparatus in which a red extends through the

water tube and which rod operates to restrict and thus control the

flow of the water to the carbid?

A. Marechal, et al, British Patent No. 29.405, issued August 27,

1898. This patent shows a water container, or reservoir, A. above,

the carbid container B below and the two being connected up by

water tube or duct, D. Co-operating with the duet D, and forming

a portion of the duct is a water tube E, which leads down a con-

siderable distance into the carbid container, and I might have re

eh Ta a CEO SR Toe eee ee See ee en CRS

|

FREDERIC E. BALDWIN ET AL. 51

ferred to this patent possibly in the former question as to a tube

leading down into the earbid a considerable distance. Within the

center of the water tube E, is a rod or wire G which is supported by

a button TH, and the top of the tube E. Reading from the specifi-

cation, commencing line 8. page 1, “Our invention consits es-

sentially in providing a feeding tube of small caliber in which a

thread or wire ix provided by means of which the capillarity of the

tube is inereased, such tube having its lower extremity outwardly

flaring, while the lower extremity of the thread or wire exceeds the

leneth of the containing tube. Our invention is designed to obviate

the irregularity in working, which is usually attendant upon the

use of capillary tubes of small diameter in apparatus of this class,

which is eaused by the deposit of sediment or impurity con-

93 tained in the water, as well as by the deposit of lime B upon

the tube by whieh its lower orifice rapidly becomes stopped

stopped wp.” In the specification near the top of page 2 the so-called

“thread G” is referred to as metallic. or being a wire. Reading from

near the center of the page “The operation is as follows: the receivers

are charged respectively with water and earbid and the cock C@” is

turned to admit water which immediately issues into the small tube

F, and forms into drops as indieated in the figure. and descends

upon the carbid in the receiver, whereupon the gas is immediately

generated and the pressure attained affects the regulation of the ad-

mission of water, which thereby is automatically regulated, upon

the consumption of the burner. The vapor earrving lime is eon-

densed upon the interior of the receiver and upon the tube, but the

water passing out along the thread carries the particles of lime away

and so the lime falls with the water upon the carbid instead of ac-

cumulating to obstruct the passage of the water. The projection

of the thread or wire. from the mouth of the tube, FE, facilitates the

draining of the water while the thread, or wire. may he readily with-

drawn from the tube for periodically cleaning the tube.” This

patent. therefore. merely shows the construction in question, the

water tube having a central wire which extends down below the

mouth of the tube and which serves to produce an automatic recu-

lation of the flow of water from the water container to the earbid

container. The statement is very plain that the operation is an-

fomatie as the quotation T have read includes the specific statement.

Referring to the Handshy patent, 591,132. there is a water tube

provided with a central red, and the rod necessarily restricts

4 and retards the flow of water. The specification however,

does not explain or specifically recite the restricting, although

the restricting action in the water tube is necessarily present and

he parts are such in the drawing itself, as would lead one to sup-

pose that that had some effect.

Peek, No. 622.015 has already been analyzed, but T would eall par-

‘ieunlar attention to the fact that the central rod, F, which is lo-

rated within the Helical closed coil A restricts the flow of water in

his coil or water tube. The patentee says, commencing near the

bottom of line 1, page 1, “within the tube A T locate a fine water

pread wire, F. which spreads the water in its passage downward

a PELTON LER ES I ESN IE SIRE HS SY LP ALORM PLR ISG IIT RI RE ED

SZ ABERCROMBIE & FITCH CO, ET AL. V8.

through the tube and compels it to engage with the coils thereof, by

which it is frictionally retarded.”

It is obvious that the patentee employs the rod and the coil to re-

strict and control the flow of water from the water container to the

earbid receptacle.

In the Schmitt British patent, which T have referred to, the part

F, which is the water duct leading from the supply to the carbid

container, has a wire or rod, 4, extending from the top of the lamp

to and through the bottom of the water tube.

The patentee does not recite the constricting of the water passage,

but shows a red which necessarily operates to restrict and to control

the flow of water down through the water tube. Tn this connection

T would call attention to a publication of this Sehmitt patent in

which this specific feature is recited in words. TI do not attach any

great importance to the fact that one recites

95 Mr. Rice: T want to know what this is, whether this is in

anticipation, or to show the state of the art, or what the pur-

pose of this is.

(Discussion omitted hy direction of the Court.)

The Court: After informal diseussion with counsel, it is under-

stood that this publication is received solely on the state of the

art, and not as evidence of anticipation. If there is any controversy

as to the correctness of the translation that may be straightened out

later on in the case.

The Witness: T do not attach any great importance to the faet

that one recites specifically that the rod restricts the tube and thus

controls, for the operation results from construction and not from a

description of the construction. This prior publication, however, seems

to specifically bring out this characteristic in operation in so many

words, and T refer to it for this reason. The document in question

purports to be, and T believe is a photographie copy of page 116 of

a publication -entitled “Dingler’s Polvtechnisches Jornal’, pub-

lished jn 1898. This evidently is a German trade, or scientific

journal, and reading from a certified translation, it deseribes a

Schmitt acetvlene bievele lamp. I have no definite information

that this is the same Schmitt as the patentee of the Schmitt British

patent, but the illustrations are precisely the same, and T assume the

patentee and the Schmitt of the scientific article to be one and the

same person.

In this publication is described in general the same thing that is

described in the Schmitt British patent, but employs differ-

96 ent words and is somewhat more brief, being for general

reading.

Near the middle of page 2 of the translation of this journal ar-

ticle is the following:

“For regulating the water feed and preventing the clogging up

of the water drop hole, a wire, I), is inserted in the tubular end of

the water drop valve.”

In this trade publication or journal, the person Schmitt has been

a little explicit in describing the function of the central wire which

>

FREDERIC E. BALDWIN ET AL. 53

passes down through the water tube. The constructions shown in

the drawings of the patent and the publication are precisely the

same and I conclude that it is evidence that Schmitt knew that the

wire would restrict and automatically control the flow of water

through the water tube.

In the Barratt British patent, No. 2699 of February 7, 1899, there

is no description of the water tube and valve, the reason evidently

being that the patentee was claiming a specific form of water trap

in his water receptacle. Tlowever, the water tube and the central

rod, or wire, G, are snown to be so proportioned in the drawing that

the effect of the rod would necessarily be to constrict and control the

flow of water in the water tube.

Hallowes and Tucker, patent No. 644,910, which I have previ-

ously analyzed, shows the water tube O, the outlet whereof ‘is located

in the center of the earbid receptacle. Through this water tube in

which the water flows upwardly is a rod H, whieh is manually con-

trollable from the upper end of the lamp. The patentees say, com-

meneing page 2, line 84: “The water inlet controlled by the plug

K should be so proportioned with relation to the capacity of

97 the burner that a predetermined generation of gas will take

place, which is sufficient to furnish a supply of gas to the

burner corresponding to the capacity of the lighter, thus insuring

a steady flow of gas to the burner, which effectually prevents flicker-

ing, and produces an even steady flame. This equalization of the

generating capacity of the lamp, and its gas consuming or burner

capacity, renders the lamp automatic or self-controlling.” This

patent, while it shows a valve, is dependent for its regulation upon

the tube and the rod and the gas pressure operating upon the mouth

of the tube in the patented construction in question. The parts are

inverted in the sense that the flow is upwards instead of downwardy

but this is another instance of the fact that the expedient of re-

stricting the water tube by employing a central rod, and utilizing

this combination to restrict and automatically control the flow of

water in the water tube was a common and known expedient and

apparently was known abroad and known here and published in

both places.

\nother patent showing the idea and describing in so many words

the idea of restricting the flow of water in the tube by means of a

central rod is the Watt Patent, No. 638,898. Tn this patent there

is a water chamber above, carbid chamber beneath, a duct leading

from one to the other, and a water tube or valve seat. G (the part

performing both funetions) : passing down through this duct and

valve seat is a rod or stem, 10, and the patentee says, commencing

line 86, page 1: “The lamp is automatic and the feed of water is

controlled by the flow of gas allowed by use of the gas valve.”

98 I would call particular attention to the fact that it is the

gas valve, and not the water valve which renders. the lamp

automatic, and it is obvious that the automaticity does not depend

upon manual control of the gas valve. Manual control cannot be

called automatic, and while this is a single sentence out of the ap-

—_ LINO II OS FEO) rE Fae BI PR ELE SE GNI EL RNY Ae Se ECP aS

54 ABERCROMBIE & FITCH CO. ET AL. VS.

plication, it is abvious, T think. that the control of water is due

to the proportioning of the water tube to the constricting wire.

The same is true in the William patent, No, 619,814, issued Feb-

ruary 21, 1809. In this patent there is a water receptacle, 4, be-

neath which is a carbid receptacle 3. Leading fvom the water re-

ceiver to the carbide container is a water tube 5, having longitudi-

nally in the centre thereof a rod, G, which at ix lower end passes into

a tubular extension, g. at the lower end of the water tube. The

lower end of the rod is cut away on a taper at 13 so that near the

upper end of the taper, the remaining cross section of the wire

is less than at the lower end. The idea is that by changing the

diameter, by moving the rod G vertically, or rotating it, the tube

can be cleaned. In the normal operation the proportioning of the

water tube and the rod apparently renders the lamp automatic.

The Mosher patent No. 644439 describes this automatic regula-

tion of the fiow of water by reason of a red restricting the water

tube. In feet. the disclosure in this Mosher patent of that principle

is extremely clear and probably more elaborate than necessary in

a patent.

Mr. Rice: This patent is also not set up in the answer, if vour

Honor please. We have never seen this until this examination

99) began, | stuippose if this is received at all it will be on the

same basis. We don’t know what is in it.

The Court: Yes, only on the prior art.

Mr. Offield: T was just able to get copies of that this morning.

This is just showing the state of the art.

The Witness: If it were not for taking too much space T would

like to read most of the specification into the record, as the entire

patent is explanatory of the principle in question. Selecting parts

of the specification, however. the patentee says, commencing line

36, page 1, “In lamps ef this character, automatic regulation is

usually dependent upon and it is accomplished by so arranging the

delivery end of the water tube that an excessive development of

pressure of gas will have the effect of checking the flow of the

water, and it is to this feature of the lamp that the invention form-

ing the subject of the present application relates.

“The tube D. leads nearly but not quite, to the bottom of the

generating chamler C. Into its lower end is tightly fitted a plug

FE. for a central longitudinal aperture ¢, within which is located a

loose fitting red, F, which is of such a length that it may recipro-

cate within the aperture of the plug E, without being removed there-

from. This red is provided with a head f, f', at each end preventing

it from dropping out of the plug when the parts of the lamp are

separated, and also preventing it from sliding upwardly into the

tube, D, should the lamp be accidentally overturned. The rod, F,

may be provided with annular grooves, G, or a plain rod

100) may be used as shown in Figure 6. In either case, the rod is

preferably of such length that when the parts of the lamp

are assembled it will be raised in the apertture of the plug by the

contact of its lower end with the bottom of the generating chamber

oo.

REA SETTLE SLR EPS ONDINE 9 ag RINE PIE I a TR HSS RRR RED TRO APRON ARROYO RS EE

=

FREDERIC E. BALDWIN ET AL. 55

“The upper end of the plug, E, is preferably sharply tapered as

hown at TH, and across its apex there may be such a V-shaped notch,

although this latter feature is not of importance if the length

f the rod Fis such that its head, j, is raised in the assembling of

he parts of the lamp as already described, and the head, f, raised

lirectly upon the top of the plug, when the parts are assembled the

V-shaped noteh, ¢?, will serve to admit the water to the central aper-

ure of the plug. That is te say the rod is not used as a valve and

erves none of the functions of a valve.

“In use, the water being admitted to the tube, D, by the opening

f the Valve d, finds its way through the contracted annular space

round the rod I and sets up the requisite chemical action, This

ischarge orifice is of so small area in cross section that the devel-

pent of gas pressure within the generating chamber will entirely

heck the flow of water through it when this pressure exceeds that

f the column of water enclosed within the tube.

“By the use of the rod several advantages are gained. I am able

» reduce the width of the discharge orifice sufficient to secure this

utomatic control of the water while extending it laterally so that

very considerable amount of water riay pass through should the

emands of the lamp require. The anuular form of orfice is

referable.”

Commencing the last line of page |: “By providing the rod with

the annual grooves, G, the form of its surface is such that

01 its longitudinal reciprocation more effectually dislodges any

dirt particles which may have settled into the orifice. The

od Fy while being comparatively small, nevertheless has some con-

derable weight and hence the jar to which a bieyele is subjected

hen in use will the more readily set up a continuous longitudinal

eciprocation of it.”

From the foregoing it would seem that the Mosher patent dis-

loses with much detail the operation of a rod located within a water

ibe and so proportioned as to restrict and thus control the flow of

ater to the carbid.

By Mr. Offield:

Q. Please state whether you find in the prior art any patents in

hich the precise combination of elements as claim 4 in their precise

‘lation and having the same functions are found. in answering

lis question you may consider that a straight wire projecting

rough the water tube is the equivalent of the element tn the claim

hich describes the rod as constituting a stir.

A. The Marechal British patent, No. 29,405 cannot with con-

dence be said to form an anticipation of Claim 4 for two reasons,

though I think it of sufficient interest to mention it in connection

ith this question. The British patent in question is evidently in-

rested with connections between the water and carbid receptacles,

nd apparently for that reason has omitted showing the complete

weptacles. Tt is for that reason impossible to say where the pat-

tee would have put the bottom of his carbid container, but it is

rtain that the water tube extends a considerable distance into the

56 ABERCROMBIE & FITCH CO. ET AL. VS.

‘arbide container, Whether it would be imbedded in the

102. mass would depend upon how large the receptacle is, and

how much carbide would be put in it by the operator,

Furthermore, it is not certain whether, as a practical matter, the

central rod, Tl, could be operated as a stirrer, using the stirrer in

the broad sense of your question with the rod terminating straight,

instead of bent, as shown in the patent in suit. The rod would op-

erate as a stirrer in this restricted sense if it were manipulated, al-

though it is not shown to be within the grasp of the operator. [|

mention this patent, therefore, not as an absolute anticipation, but

as coming very close to it, and in practise it may quite possibly

have heen an actual embodiment of what is described in Claim 4.

The Handshy patent, No. 591,132 does, to my mind, form an

embodiment of what is claimed in Claim 4. It has the water reser-

voir, a receptacle for calcium carbid and a water tube extending

from the water tube a considerable distance into the carbid_ re-

ceptacle, all as recited in the claim. The water tube extends from

the water container a considerable distance into the carbid con-

tainer, and is adapted to be inserted in the mass of carbid in the

receptacle and is shown to be thus imbedded. The Handshy patent

also has a rod extending through the water tube and it does con-

stitute a stirrer to break up slaked carbid around the outlet of the

water tube as called for by the claim.

In operation t!.e gas pressure in the Handshy lamp continuously

moves the diaphragm, F, and water tube, H, up and down. The

action, therefore, ix to create a relative movement of parts at the

lower end of the water tube, and the action would be to disturb

and break up the slaked carbid formed at the mouth of the

103. water tube. This patent recites that other constructions

may be employed besides the precise one shown in the draw-

ing.

IIe says that the rod, G, may be fastened to the diaphragm E.

Quoting from the specification commencing line 84, page 1,

Handshy says:

“This stem may be secured to the diaphragm, E, or it may ex-

tend upwards from the valve and he secured to the top, A-2, of the

chamber, B.”

The rod is not movable, and yet it would have a stirring action

in co-operation with the movable tube, and it would assist and eo-

operate with the rod in producing a relative movement at a point

where the sludge is formed, therefore, while it is stationary, I think

it is not stretching things at all to regard it as having the function

of a stirrer, or co-operating with the water tube to produce a stirring

effect. Certainly the effect is there, and the rod contributes towerds

the effect. The only remaining element in the recital in the c'aim

is, “The rod operating to restrict and thus control the flow of water

to the carbid as set forth.”

The rod in Handshy does restrict the flow of water, having an

external surface and occupying space within the tube, as in all the

other patents in the art in which this efféet occurs, And the rod

MELEE ELLE PELE LID EY LIE," AGERE TOES INE

See ee Pree es.

—

FREDERIC E. BALDWIN ET AL. 57

does control the flow of water, having in addition to the ordinary

restr

This text is long and has been trimmed here. Open the source document for the complete record.