Respondent Brief in Opposition to Petition for Writ of Certiorari — DeForest Radio Co. v. General Elec. Co.

Supreme Court brief1931

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ons OF THE Courts BEL D ee ee es

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Subject Matter Inyolved .....-++...-s+0sseeneee

What the Patent Purports to Cover e ee

Scientific Principles C EARS

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Regarding Conduction

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ee 7 fe ; INDEX

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5 i DeForest Audion „ eeer YT ERE TT OKT A Cea ;

Fleming Valve eee ese pis

Lilienfeld Experimental eee

. ‘The Vacuum of the Patent

High Vacuum in Prior Art f r

e of Pure Electron e 4

- DeForest’s Letter to tlie McCandless en

Langmulr's Testimony SS NA Ee .

Tungsten Cathodes ........ ak bby soe Peay:

Evidence Regarding California Tubes .

porer Iv —Question of Priority (Arnold Defense)

eie, vaviioacdcess i

Langmyir’s Work Prior to July. 1012 ee

The July and August, 1912, Work 8

In November, 1912 Langmuir Worked Out the 3

_ ‘Theory of the Action of His Tube 66

Langinuir's Invention Was Made in wage

5 , nseeay ds 1 „

Petitioner's Criticism of Langmuir’s Work“ „

i 52.

“Pacts as to Detector and dee Operation 53

. Arnold’s Work ; %

Wers Alleged Conception 2—2—*—*ũB2 1

ld’s Idea of Means .. vengstaveseesese FB um

old's Late: Work . —*—2—„ũ⁵ „„ 80

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TABLE OF cas e

5 * 5 ö PAGE x

-" Adamson v. Giititand, 242 b. 8. 950 5 ee he

Arnold v. Langmuir, 6 Fed. (2d) 704 ae eee sesees 2 4

britannis, The, 153 U. S. 190 EGO Ve 2 vee

Corona Tire Co. b. Dovan Chemical Corp, 276 U. S. :

358, 375 innen see eeeeee Pebeeeeeeer n f

a Dayton Fyn & Motor Co. v. “Westinghouse, 118 Fed. 562 87

Diamond Rubber Co. 5. Consolidated Rubber Hire

Cé., 220 U. S. 448 0 80 75

Feed - Bock Cases, 278 U. 8 522 n,,

Gen eral Electric Co. v. DeForest Radio Co., 23 Fed. Bg .

LA) COB ũ f 7 1 .

General Electric Co. v. ‘DeForest Radio Co., 4 Fed. „

r 2

. General Electric Co. wD. wrden 261 Fed. 606 . „

Harkin b. Brundage, 276 U. . e

* Hewitt v. American Tel. & Tel. Co. | 272 Ped. 191 oa : ponte

FCC tree DB

‘Marconi b. Deberest. 20 Fed. 8 e

. Marconi v. DeForest, 236 Fed. 942 . „ .

Morgan V. Daniels, 153 U. 8. 10 „ „ d 60

Pittsburgh v. Cowles, 55 Fed. . e

_ Telephone Cases, 126 U. 8. 567 ö a

Thomson-Houston v. Chto Bren e, e 718 „

Tughman v, Proctor, 102 U. S. .. . N . 71 >

999 V. 8. 6. Bell Telephone Co., 167 U. S. 224 eee seve dae ees Ge | es

U. S. v. General Electric, Co., 272 U. S. 8 0 õũh

Van Heusen Products v. Earl & Wilson, 500 Fed. ona. wal

Victor v. Brunswick, 273 U. SOM eve adde! 5 N

ö _ Washburn v. Fed. Cases 17, VVV 0 i |

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Supreme Court of the United States

be FOr Rapio Company, | 1

WW. Petitioner, fl 8

ö : „ ae

1 : | ae ir Patent

* 0 f ent. 5 ae 1 75

Lug is’ not reported, but le at Vol. III. page 2007 sak at

(Op. p. 125). The opinion of the same Court on rehear-

ing, sustaining the patent, by Judges BUuFFINGTON and

Davis, Judge Woctaxv dissenting; is reported at “ | Pea

Oa), poe (Op. 5 3

Statement of the Case.

The 8 is an iuaprovement in electrical vacuum

. discharge devices of the type known as “hot cathode”

tubes, in which current flows through an evacuated space

from a heated cathode called the filament to a cold anode

called the plate, The modern radio tube is a familiar

exainple of such a deve.

“As stated in the spesification, the tubes of the pale

eee Meats ee and reproducibility

. ne 2

in which the current was irregujer and non.

eee ‘This difference is due to u differance in the type

nas eder.

1 eta the fbr a |

t Lng ee Ad 2 a AA

5 3

3 of, the Fleming valve (arcont v. DeForest,

243 Fed. 560),

Counsel for petitioner say that the ee 1 tube

eee e the electrical arts. It was not DeForest’s

audion which did these things. It adied very little, if

any, impetus to the art; oo Hale in fact that until after

62 Langmuir’s invention, crystal detectors were used inpref-

erence,to DeForest audions in such en important station

as the Government Station at’ Arlington (I. R. p. 1602).

It was Langmiir’s tube which’ as Judge Morris said,

“because of its seep de yr nner and power,

has made possible ra broadcasting, modern

radio reception and long-distance telephony” 8

. 106). :

was erratic and tricky; no two audions acted alike and

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Th b i

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= tubes, ‘apd ln Wini dh Gnade bh e ita

u pperating by ges iouization, It will be herpful to re-

member this when the Court comes to oonaider petitioner'

agument Chat the: e ee eee e e ect

or at least misstated, our position. The invention is not

the beta . Op. p. n

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Vokes

‘contrary, this is the. petitioner's position. Our position

is that a DeForest audion, whether a detector or amplifier, =~

when properly performing its intended function,’ de 9

pended upon gas ionization; this was the thing that made

it tricky, but it was also the thing that made it’ work.

Tha difference between a Langmuir ‘tube and a tube

operating by gas iorization is not that one will work prop-

erly and the other will not, but that when both WW.

erly performing their intended functions they operate in

entirely different ways because they depend upon atten. 5

ent principles of. operation... |

To understand the difference in principle of of tion a";

between a Langmuir tube and a DeForest a ion te

Court ‘must understand the diff between a pure

stron dharge and urge trough nied a ey

and how this difference is manifested in the action of the

tubes. While the petitioner’s explanation of the sgjentific

principles involved is reasonably ‘ate as far as it /

goes, it is entirely inadequate, and the statement “that /

the amount of the gas residue permissible in any par.

ticular tube depends upon the uge to which the tube is

Sep ea nah. ghar Sina ee e e a

is ambiguous and misleading. . g

. e amount ot uo. “pertalestble” ‘in a tube. 1

as by gas ionization is one thing; the amount of. gas per-

15 5 3

cen „F 90

n vy 72

> ** 24 P a

Wore „

Va '

explain first the — . of operation common ö

o both types of tubes, and then fo point out the differ-

-ence in principle of operation between a Langmuir tube

; and a DeForest audion when: put to the same use and |

gt ee non

1 — — 755

ure electrode (F) called the filament, an anode or positive

delectrode (P) called the plate, and a third electrode or

. grid (G) between the and plate. ere:

is heated to incandescence passing a |

tricity. through it. e

1 eas, mplit

is supplied by the A battery; its sole function is to hegt

“the filament. eee commonly called the Bo

battery, is connected” 3 *

eee eee sel

pen et, |

aay, put Ne re third sivas called: the 0 but: . 73

tery, may be connected between the filament and the grid...

Thjs is caifé the grid or input eireuit. —

When the filament, -is lighted, , electrons or negative :

charges of electricity are boiled out of thevilameit, and

tmese being attracted by the positive potential or hull

of the plate} are carried across the tube to the plate.

. causing a flow of current in the plate circuit and through ß

the receive. The incontfhg signal or voice current is

imposed upon the grid or input circuit; the variations,

of the sound wave vary the potential of the grid, thereby _ :

causing corresponding variations in the effective potens 7

tial of the plate with corresponding yariatjons in the

plate current, which set: up corresponding ‘vibrations in * 5

the diaphragni of the receiver. The result is that the in-

coming signal dir voice soynd is exactly but niore power-

‘fully peptodnant # in the receiver.

Saturation. 3 N 9 C

The number ‘of wectroiis emitted by fhe filagnept i.:

determined by the temperature of the filament. This is

known as Richardson’ s Law. But the current delivered d

5 By the tube depends. not upga, the number of electrons Se

‘ emitted. but upon the number of electrons drawn across *

the tube to the plate, and this vaxies with the voltage. a

When the voltage is sufficiently high to draw all of the si

electrons emitted from the fllament to the plate, the tube

is said to be saturated. When a tube js saturated no

„ furthertincrease in vdRage will affect the amount of cur-"

me rent, and therefore in this range, Which is. called tßge

* saturation rage, ra scares e pete er changes ae

a gta

2 8

; 11

soe ssturationy a and this is the range with which we are Par-

-.' ticularly concerned. ‘When a tube is operating within this

ae range, it is said to be wen on the —_ ne,

Ilonisatien. as fou ahs

I there is any * . gas in: the sale: or

if. during the operation of the tube gas is evolved. from .

the parts of the tube, the passage of the electrons from

the filament to the plate at- voltages in excess of the

so-called ionization voltage, causes ‘the gas molecules to

disintegrate. This is called ionization. Tonization occurs ~~

at definite. voltages, varying somewhat with different

gases, but Ahe evidence shows that it begins to be im-

portant as a “Factor influencing the flow of current some-

where between 20 and 30 volts. The physical phenomenon

is rather complicated, but it is sufficient for the purpqses

. . case to know that when ionization is present in

a tub the gas acts as # s sort of condnéton 2 The eee

be at. me same voltage in the absence of. ener ae

d The result is that in a gaseous tube saturation is reached

at lower voltages than in a non-gaseous tube with the

dame filament emission, but in the range above ionization

“ea and below saturation, which as we have seen is the range

. In which a radio tube i is always operated, a gaseous tube,

85 because of the increased current due to ionization, is

„ more rifponsive to slight changes in voltage. Therefore,

5 n. gaseous tube is| more sensitive, both as a detector ed

das an amplifier,'than a non-gaseous tube, but its ee

i of operation is more limited (Vol. 2. p. 1281).

= “A ine serious objection, however is the eric be-

- havior of such a tube: If gas is « evolved fron

bree no the same in any two ibes. As the am

orang 5 „ |

ee, Blue glow is associated with fonisntion, but: the terms ie

are not interchangeable. At apy such voltages as those

PR SO

i Ries aN „„ ee

_ eof ionization varies with the pressure of the gas, and as

the conductivity of the gas varies with the amount of

ionization, the current varies in different tubes, and

in the same tube at different times. Moreover as it

was desirable to operate a gaseous tube just below ‘the

point of saturation in order to obtain the maximum effect |

of ionization in the conduction of the current, it was

necessary to adjust the B-battery voltage for each tube ;

and for the same tube. at different times to compensate

- for the varying ‘conductivity of the gas and to keep the

tube within its operating range. This accounts for the

critical adjustment of the attery voltage, which £s we

have seen (p. 4) was chavfacteristic of gaseous tubes.

Judge Wooitzy had an · Entirely wrong idea of ioniza-

. tion. Hé speaks of the ions fighting the electrons and

of gas as an ‘enemy of conduetion. The ions do not fight

* the electrons; they keep the electrons from fighting among -

themselves; they police“ the electrons, according to page

9 of petitionerꝰs brief; gas is not an enemy of conduc-

> tion, it is a friend of ee bat an erratic and un. i

reliable friend. ;

at which DeForest worked, blue glow is a visible sign

cc extreme ionization, occurring at about the point te

saturation (Vol. 3, p. 1713). In this condition 5

5 31

glow does not mark the ‘beginning of ionization:

es begins at the ionization voltage; blue .

ooeeurs at some higher voltage, varying with the pressure

SEAT ER A ON. n en

= hw

„ 8 Sous 2 5 0 eS

00 as the voltage is raised to ‘that at ‘which. blue jen. |

occurs, and as we shall see, the best. results wore ob- |

tained with a gaseous: tube when the voltage was

critically adjusted to that 925 below the point at witieh ;

8 blue “glow occurred, :

- The point we wish to make clear is that absence of 1

glew is no indication that the current is not affected by’

ionization. The mere fact that à tube Operates at.

voltages above ionization voltage without. evidence of

blue glow is no indication whatever that the current is not

‘substantially affected by ionization. We emphasize this

statement because both Judge Woot.ey and Judge! 9

were evidently confused on this point. ;

The audion was always operated below the blue 5

point, but it always operated by Seer whether as

a detector or as an amplifier. It was, as we shall see,

ionization that made DeForest’s audidus stich sensitive 5

ampliflers; when they broke into blue glow they to

operate (Jewett, Vol. 1, p. 411), but very

ionization existed in the DeForest audion without blue as

‘glow, as, appears from the testimony of defendatit’s ex-

pert Chaffee at Vol. 1. page 274, and from the ee 1

of Hogan at Vol. III, page 1723, who- says. that the igniza-.

tion sharply affects the current in an audion “long before

. the energy in the ionization dische . =

blue glow.” *

= If the tie ie reed propottioned, thet te bo

say, if the parts are so thoroughly freed of occluded gas

chat no gas is evolved during operation, and if the -—

vacuum and the relation of the electrodes is such that |

no appreciable ionization take se when the t ul 0 \ is

——— —— mt

may be replaced. with another tube which will operate

1 5

operated at 8 substantially in excess of e ce

voltages, we then have what is known as a pure electron

discharge“ tube. As the patent tells us wa: IY, v. 3. lines

110-11): f

“As W 8 e in the Pres-

. ence of positive ionization, the pure electron dis-

_ charge\is characterized by ‘regularity and repro: : |

ducibili with dies conditions.” 5

The given conditions are the filament temperature and

the B battery voltage, both of dyhich may be prede-

termined. With a given filament temperature the current

is determined solely by the B battery voltage. The result

is that the tube is reproducible, by which we mean that

the tube will operate. the same way, tay after day, and on

the same way, without any adinatmentt of we A. Natter 1

rheostat or the B battery voltage. : .

It is clear from the foregoing - that: the difference: be. 5 5

tween a tube operating by pure electron discharge and a .

tube operating by gas ionization is a difference in the: ae

_ essential na 0 arge. : sae

Uk im equally clear that this diffefenics i» evidenced by: 8

the ue din tubes operating by pure electron discharge

will operate at a fixed B battery voltage. whereas tubes

eS 4

Stability and eee i 0 tube are re matters of oo

+: enormaus practical importance. The modern radio re-

ceiving sets with six or more tubes in complicatedéeir-

cuits; the modern telephone frelay; the modern X-ray

tube, have been made possible only because of the abso-

, lute uniformity and reyrc dueſdility of the tubes. Such

The idea that any useful flow of e t could be ob-

tained in the absence of gas was o the gener

ration of such a tube involved r e art

cn was not talnghy ee a very: ‘gh :

vacuum which would be destroyed by the evolution f

gas when the tube was operated; the new and difficult

problem was to get all the gas out of the parts of the

tube so that there would be no further evolution of gas |

during the operation of the tube. ie

The Lee ee f

development would have: been impossible with tubes

which required constant and critical adjustment of the. *

_ B-battery voltage. It would be impossible for instance

to have a modern radio receiving. set with six or more

tubes each requiring constant and critical adjustment of

the B-battery voltage, and requiring a different Rf

ment every time a tube was replaced.

. vs Sey:

belief and experience of the art. 0 ove, the epa- |

fom that originally claimed when it was fled, and quotes

Judge Wootszy’s opinion te that effect, 5

The suggestion is not justified by facts. se oma

argument was made by Arnold in the interference pro-

ceeding and was overruled by the Law Examiner (Op.

p. 15) and by the Board of Examiners in Chief (Op.

React: *

Langmuir's pateut applic 1 filed. ‘October 16,

1913, It was entitled: “Electrical Discharge Apparatus

and the Process of Preparing the Same” Vol. VI. p. 662),

As the Law Examiner of the Patent Office held in Arnold’s

61 leaiahee |

— (op. p. I), and as is evident on comparison of the

original specification at Vol. VI, pages 662-673, with the

final specification of the patent (Vol. IV, p. 2), the ap-

_” plication as filed fully disclosed the new tube which Lang- .

muir had invented and the process of preparing and pro- Bi

ducing it. The original claims were process claims;

but product claims were introduced by an amendment

led two months later, December 28, 1913, prior to ang

action by the Patent 3 One 1 Wer 888 eg ae

eee nee

e eee

eee e eee ee e

„FFC

e that the curtent

Tah’

produces no appreciable positive ionization when e

the impressed voltage is as high as 200 volt.“

" Moreover every one of the claims of the patent as issued

reads directly on the invention as it is described in the

original specification. é ee?

on October 18, 1916, two days after-the filing of he

patent application, Langmuir presented before the Ameri-

can Physical Society, a paper which was published mine.

December, 1913, issue of the Physical Review (Plaintiff's

Exhibit 21, Physical). This paper contains a full dis-

closure and explanation of the invention (I. R. pp. 158

1596). ö

Langmuir understood well ‘enough: aint his invention,

was. His patent solicitor seems to have had trouble in

drawing claims which would accurately define the inven-

em in Patént Office language. That is an entirely dif-

ferent matter. ‘It accounts for the fact that the applica- ae

tion after being at issue in 1915, was allowed to forfeit.

But it was promptly renewed, and in following this prac-

tice, respondent's solicitor was merely availing : See

ol the right which the Patent Statutes gave him U. = . aaa

Bell Telephone Co. 167 U. S. p. 224, at Rp. e and

oi following the usual Patent Office practice. . 1

HPetitionex insinuates that respondent is in some way 5

Aes responsib or the delay in the final issue of the patent. .

‘The facts do not warrant any such-insinuation. Arnold

led an application for the same invention on b ‘Nov mber

2 1915. On November 18, 1915, Arnold’s attorney wrote

_ ft the Patent ae , atsation te Tangier ap

3 i a — ‘ . . „

(+ :

20). r

ceedings were ‘conducted certainly with as much dispatch

as is usual in such cases. Certainly respondent is not

f chargeable with the delay in the issuance of the patent

.... an mor thane

pet aw

Mag.

cCůhargeable with the delay of six years in reaching a final |

1 „ 3

; Am 1d i fer 8 { 5 ne | =]

on November 2 1915, Arnold of the Amprican Tele- ve

| phone & Telegraph Company filed his application fora

patent on the same invention. After un interferggce was

declared, Arnold moved to dissolvé the interference on

_ the ground that the invention was not patentable. aA 93 1

a conceivable prior art reference was cited, and nearly two

| thousand pages of testimony were taken on the motion

Shall indicate un „„ tue

ee doners brief to w the argument is addressed. :

1. The definition of the invention adojited by the ma-

+ - jority of the Court is the definition which is found in the

specification and the claims of the patent, It-is not, as

petitioner asserts, a new definition advanced for the first

time on the motion for reargument; on the contrary it is:

the definition which respondent urged at the trial and in

ak the argument before the trial court, and in dhe brief

originally filed with the Circuit Court of Appeals,

In the practical prior art devices the conduction of

current depended upon gas ionization; the art moreover

believed that unless there was enough gas to act as a2

‘conductor no current could flow and the tube Would

not work, and experience seemed to confirm this belief.

In simple language Langmuir’s irivention consisted in‘ °

.., taking out the gasegus conductor upon which the prior

art relied and Putting emia: in its TT (Petitioner's

second point.) : AEN | 1

2 The 5 is not 3 a DeForest audion

capable of operating at ee 3

—

Dre

tolls the

eee

— ee —————

_ Tena Company. tte be epety du de the

| ARGUMENT. —

The definition of, the invention adopted by- the ma-

_ jority of the Court is the définition which is found in the

specification and the claims of the patert. It is not, as

petitioner asserts, a new definition advariced for the first 8

time on the motion for reargument y on the contrary, it is

_ the definition which respondent urged at the trial and in es

ee eee iets and in the briefe

originally filed with the Circuit Court of Appeals. ri

eee eee eee

DC ees “But a vacuum; or Gand 3 of e

‘isolated and standing by itself, is not the Langmuir

85 indention, but it is a working kube in which all the

elements, cathode, plate, vacuum, so coordinate and

inter work that current flow i is not eee by gas.”

This is precisely what the patent says; for example,

Claim 2 which Judge Woo.Ley accepts as typical, reads

“2. A Aae tube having a cathode. adapted os

„ 10 emit electrons and an anode adapted to receive -

Said emitted electrons, the tube walls. being

: fashioned or shaped to permit che t passage

of a useful proportion of said electrons from

cathode to anode, the gas content or residue of said =

tube and: the relation of the p of the tube being

8 uch that the tube is capable of being so operated.

in a range below saturation and materially above

* ionization’ voltages that the space current is gov- |

erned or limited by, the electric field of said elec-

trons e unaffected by 8 ioniza-

tion.“ ; 3 .

= * Confining ourselves to we e as origi Dany oe

-.. filed in order to meet petitioner’s suggestion that the in- ey |

vention uhderwent some change during the progress of

the patent through the Patent Office, we find the invention

_ described as follows (Vol. VI, p. 664, lines 10-16) „

“In devices made in accordance with my jive oe

tion gas ionization is either entirely absent or is

et - negligible and a discharge takes place which is dis- 3

tinct in-its characteristics from the described dis-

charge taking Place in an ionized gas.”

Thespian goss ont cy (ines 24-27):

eae ‘isch: me

5 3

Gx A

if oe :

0 .

: —— (Vol. H. p. 951):

ae “Mr. Davis: The invention sas 8 10 it, a 5 155

a vour Honor please, is a, tube in Which the relation „

ol the parts, the geometry of the tube, the nature

of the gas, the amount of the gas, are so coor-

a : f dinaied that a pure electron 5 wil flow . 5

above ionization voltages.”

| The bee e =

| cessful for the first time upon the reargument in explain-

a ing the invention in such a way. that the Court mo

stood it. :

In the petition for rearguinent (Vol. 11. 5. 510 we

Said: e

: “In, simple language, ‘ie . con- 8 5

sisted in taking out the conductor which was in the

Fleming valve and the DeForest audion and pu

regarded as an essential element, in the

nothing in ‘its place; he dispensed with what was 5 .

of, the tube eee Sy ge e which 5

worked infinitely better“

"Petitioner says that this is an 8 new and ain

ferent. definition of the invention from anythiag Which

: had previously been suggested. It is new only asa mat- 8

5 ter of phraseology; in substance it is exactly what we said

= at the trial sad in a brief filed on the original argument 1

ae ope the Gourt of Apne In that brief — 10) 1 5

"tee ob eden ĩ ĩðV!u el Wk a ted

‘or gaseous tube; in that tube ‘ionization’ of the gas

FF ee

ae 5 18) we said im the same brief:

mne fundamental difference between the two des

| vices is that in Langmuir’s tube there is no ioniza- Se

tion which substantially affects the current, while

: 5 in the audion ionization is a vital factor in the -

i So of current conduction.” eee

To say, as we dia in the petition for reargument, that i

Langmuir’s invention consisted in taking out the conduc- a

tor which was in the DeForest audion and putting nothing

* in its place is simply a striking way of stating the same

thing. In fact the petitioner, in describing the phenom- .

denon of ionization, says that the positive ions act like

_ traffic police for the electrons” which suggests the seme 3

idea of a conductor,

ton is not cor in that the Fleming i d DeForest de- 3

- vices did not hay *** 5

The contemporsry theory regarding conduction i «het .

cathode tube. a

eal TTT 8

at any reasonable voltage would flow only through: a

metallic or liquid conductor. Then came Edison in 1884

with his great discovery of the “Edison effect,” which was

that somehow electric current would flow in a vacuum

tube across a gap from a heated filament to a gold plate.

‘or anode. This was a startling discovery, because, at first |

8 thought, it appeared to be utterly inconsistent with the — 5

gecepted belief that eurrent would flow only through a

conductor. But like all great discoveries it appeared

5 ‘simple enough when it was explained. The explanation. __

5 was that there was enough gas in the tube to form a con- : 5

ductor, or, as it was sometimes described, that there was

a a“colunin of conducting gas” which served as a conductor 5

to carry the current across the gap from the fllament to.

_ the plate. In the 1914 edition of the Century Dictionary

and Cyclopedia, the Edison effect is described as

a phenomenon of the vacuum of ineandescent 3

lamps, consisting of an electric glow near the ends

of the filament, caused by a current flowing through

the gases between the terminals, or from a third

terminal and the negative leg of the Aiea

Fleming merely ‘utilized the Edison effect * a vacuum ;

5 5 tube with its column of condneting gas for the detection

pl radio signals. |

De Forest simply improved the Fleming valve by adding

8 Both the Fleming “alee and the DeForest audion were

gaseous tubes. While Fleming and DeForest and the art

generally did not understand just what the action of the

| gas was they visualized it and spoke of it as physic

conductor, and regarded it as essential:

Fleming in his scientific paper — —— thins

Royal Society in 1905, after describing the behavior of his 25

valve, said. Wol. V, pp. 148-149) :

. “the facts so exhibited are well-known — ö

ties of gaseous conduction in rarefied gases.” Be

clea J. J. Thomson’ 8 book

Through Ga: ses.” 4

in 1908, in in an article pulsed in Cassier’s Magazin, „

rien said: °

he form of oscillation 8 devised i by the

| 1 depends on the unilateral conductivity Of @ a |

mass of rarefied gas contained between an incan-

descent and a NVL paar’ d. R. p.

12 the 1910 edition of his book Fleming alll:

Anu both Mr. Marconi’s and the author's a

described method of employing the valve, we are 5

utilizing the unilateral conductivity of the ioniꝛed

gas which it possesses in virtue of the electrons dis- .

charged from the incandescent fllament. On the

other hand, we may employ this detector in ache, ;

manner, depending on the fact that such ionized

gas does = ney Ohm's law as a conductor“ dl. N.

„„ N

0 In his 1916 book Fleming contiined to speak of the “a eS

ae “ionized gas” in his valve as a “conductor” (I. R. p. 1345). ee

In a patent granted to DeForest. ‘in 1907 he describes hae

‘the audion MN i

w an e eee .

8 ——— nedium VC of

5 ction of ieee „

ican Institute of Electrical Engineers in 1906, D For n fh Gen

woas asked whether the action of the audion deer “a

2 upon the ionization of residual gases within the vacuum,

or whether the vacuum was so perfect that the ions or

SS electron came from the eset SM, a

pe ay: N Was G. R. p. 1493)

3 fog i it's 685 i W. alate aa

, gases; the gases still exist in the lamp, because he

vacuum is only ae which ee in all e

cent lamps.“ ‘

os It the shone adding e :

odd gas left in the exhausted envelope had anything to do

with a certain “lag effect,” DeForest said: 7 :

Mell. ee ta pie hie hilaatig otal

i the phenomenon. If the exhausting process is car-

dried too far, the audion loses its sensitiveness. The

gas ee rather than ba pete a. the metal a

2 the:

in 55 patent No. 1.201.278, issued on an application filed >

in 1915, DeForest explains the conductivity of the ee

18 due to the “ionizing of, the gas i in the evacuated vessel”

and speaks of. the con ye & |

1 interconnecting gas medium” ee 10. v. e 40-43

and 96-98). ot

eae ‘Gernsbesk, in a critical stndy 5 the 3 Ds

audion, said that „ os aS 55

the operating principle is 2 1 of me |

column of co ce gas de a received nance |

See impulse“ 4. K p. 150% 1

. 1

And the. ext wae right: tin a soon ant pulls the Ot

é ene the unde e eee the s 1

8 : Cpe 2

was the thing that made the audion work. If you got rid

of the gas, you made the audion i rative; it might be

an obvious way to get rid of the but in the

view of the art it would have been very much like cutting

out a man’s tongue to cure him of siuttering | 3

‘We have quoted DeForest’s statement that if the en-

_hausting process was carried too far the audion lost its.

sensitiveness; experience confirmed this statement. Some-

tmes an audion would “clean up” in operation; that is ee

to say, the vacuum would become higher and the tube

would become what was known as “hard.” A hard

audion was not a good audion, and it was common prac-

tice to resort to the expedient of heating the tube in order

to Uberate gas from the walls, and so to increase the gas

pressure (reduce the vacuum) enough to “soften” it to

that value at which the audion would function. When an

audion got so’ hard that it would not respond to such =

treatment, it was discarded us useless; as the defendant 1

bald in its 1919 circular; 5

8 ee :

N f ethan a

. date us to be inoperative” (supra, p. 4). ;

it ange e went to the ert for an explanation of: why

this was 80, he would have been told that it was because

there was not enough gas in the tube to form a conductor,

_ and that without such conductor no current would flow. 2

Foor instance, in the United States patent of Von Lieben,

| Slane Sea seats eee ee f

re im si Pane Brief, P 75 J. :

GR h fia: 9 |

1 in a well known fact that exhiuated dishes

* . tubes can be worked only for a compar vely.sho

time, as the discharge ceases after a short pet

‘itis continuously maintained for someé time. 15 3

The patentees go on to state that the discharge 3 5

because the resistance of the. tube increases = the gas 85

cleans up.

And this wWas is e 0 vibe al the art; for example, | |

Dr. W. R. Whitney, director of the Research

81 1 of the General Electric Company, said in a paper read 5

before the American Institute of |

‘June, 89 shortly before. Langm |

made:

Engineers in

“In ¢ connection with this work of Flaming! a: te

have studied the effect of the condition of vacuum

on the current, and also found that the presence 8

gas is necessary gh this negative discharge” (I. R.

9. 16100. aS : 1 0

e ee ree |

work which led to this conclusion.

Arnold in his patent application ‘stated (I. . p. 4560.

trons thus emitted must he utilized to ionize the

: ö invention was

“It has been commonly supposed that the elec-

residual gas in the vacuum tube in order that the Sie

device might operate efficiently.”

And in his testimony he confirmed this statement an

9. 40%.

Wen Langihutr @iseumsed his invention with the ds

- tinguished physicist Wien and told him that he had sue-

| ——.. aren ae

| G e % (Vol, Ul; p 1942). 8

Rutherford was of the same opinion in 1914 (l. R. p. 151

f Prof. Robert Pohl of Germany wrote Langmuir in 1914,

mas fy “congratulating me on the work that I had published in

/ the Physikalisch Zeitschrift and pointing out how the

paper had changed his views on this question of electron

5 emission in high vacuum and was likely to change the

o other Geeman pcleatians: * N.

p. 1929). „„ f

‘DeForest insisted

5 VV poe ie Ss pie

Even after nies invention had been published,

t Langmuir was working on the

muir's paper read before the Radio Institute in 1915:

J believe, however, that Dr. Langmuir oe by

working into these extremely. high’vacua and the

e gdh ee e ee the :

less promising of .two — of, research” . Ex.

104. phyaicel, p. 292).

"The evidence of gs — Fling valve ad

‘The ant didaet knee SF gab a con-

“ductor, eee

52 0

Ra *

: beginning at Vol. II. page 1236, Where he discusses the

same subject with particular reference to the De Forest

audion and the Fleming valve. The whole matter is too

as complex to be covered in a single sentence, hut for the, ite

convenience of the Court .

muir’s testimony. | . “

At J. R. page 1599. he sans.

in their action, and by a long, use-

e controlled by ther. In each of these

respects ey differ radically from the devices of

the prior art such as the Fleming valve, the audion, 00

the Von Lieben tube, the Wehnelt rectifier and the

Lilienfeld X-ray tube _— all used and depended /

upon lonteation.” „ 1 500 ; ley

| ae “Ad vel M page SRN be aja so

e oli: tn d e ee a 0 N

the De Forest audion, the pressure was continually

At there is a pressure of 3

tion produced by it odie th

will be eliminated to a different degree and there

will be a resulting change of current.”

u R. page 1825, Langmuir. referring ta the Fleming '

kar AY a eae The

eth

at Vir

2 —— —— —r

* SF} a8

* *

. N ä

5 : rh

;

sit Se , 7015 Oe i 6

. ; ; 4

4 84 *

A $ ; 1

* - 9

j 4

ae |

. 7

1 4

e My

15 audion deteptor and the audion amplifier; for the ume

bulletin sayg (Vol. IV. p. 142) that the directions for op-

eee an amplifier are the same as for a detector: (ee

also p. 36, infra).

Here we see the same critical adjustment of the B 1

Voltage to the point just below that at which. blue glow |

occurred which the defendant in 1919 Bulletin says

was necegsary with old style 5

5 .

ment (I. R. p. 2007):

above the ionization voltage, depended upon ionization:

Peet eee ,

i ptm det ac Pcng v

_ depended upon gaseous conduction. The 9

1 Wich confused Judge Woouuzy, is based upon an inicom- 7 2

. the effect ut ote

8 scribing the action in the old-style gassy tubes, “the posi-

‘in fhe: otiginal.specification Langrmuis had ald, 4%

„five ions take part in the conduction of current, giving at

first erratic readings on e instruments wee

di een es es

The statement was 5 cancelled ‘from the 1

| specification and the following substituted.

e “Under these circumstances the 8 E

a conduction across the tubes are the result of the . + J

action and interaction of the electrons and the

ions. These phenomena. are in im genes erratic and 5

non-reproducible.” : a

In cross examination, e was e . the

original statement would havg been true if it meant that 4

“the positive ions take part in the conduction of current

by acting as conductors of current,” “His. answer was in

effect that the statement would not be scientifically a-

curate. From this petitioner seeka to draw the conclu-

sion that Langmuir repudiated the theory. of gaseous

conduetion in prior-art tubes, but if petitioner had quoted

the whole of Langmuir’s statement it would be apparent

VVV 5

said (I. R. p. 174. XQ67): 5 1

8 “The sentence The positive ie ra ace in w

conduction of current’ is a perfectly natural way

“a ; th loos we y of s that the

hs pendent on the positive 12 e

tis evident Wenn this that the change was M oa

7 ol phraseology and not of substance, and that ~ ngmuir

never repudiated the e theory: of b in prior.

. art tubes.

This is further 8 by the following nistement Te

aaa . eee ae a

the patent:

“The e above described as being har =

s of devices involving gas ionization are

taken advantage of in an incandescent cathode de-

Vice known as the ‘Audion.’ This device has been

used as a receiver for radio- telegraphy and depends

in its operation upon the rapid change of the dis-

charge current when oe ionization begins eis |

VI. p. 63).

Petitioner's references to prior en conduction of d.

a tricity. by gas. . 2

5 petitioner says there is no testimony in the’ record that

either Fleming or DeForest ever purposely left a definite

residue of gas in their tubes for the purpos of conducting

the current or of making them operate. .

Fleming paid no attention to his vacuum; he was ie 75

: ‘fied with the ordinary incandescent lamp vacuum of hig

time. DeForest definitely said that the action of the

audion was due to the ionization of the residual gas, and

that if the exhausting process is carried too far, the audion —

loses its sensitiveness (supra, p. 25).

5 What DeForest knew wai’ tht if the ste wai we |

ley ECT 5

therefore, and what he used, was a tube exhausted to th

optimum pressure which would give him a

2VJV;ͤX.... dalle ods t

of Marconi v. DeForest, 236 Fed. 942. It does not, how-

e e e ch e eam

which is at Vol. HII, page 1488: TR

ing had to say about that, about the significance

5 A I mean if a va

A. Well, in onder: thet: the |

undisturbed passage across, it is at

there should not be too many gas molecules in the

Way. I am going in a minute to read what Flem-

of the vacuum. If the vacuum is so high that the

electron streams across from the filament to the

plate are not seriously interfered with then the

ee forte SEN But if

there is very much gas present -

e e e

n is not 7

4 phone 3 ‘ihc, which were „ the 1 ibe 5 nae

ol the Langmuir patent here in suit, depended oak oS

principle and mode of operation clearly different N

_. that of the Hewitt tube, which was a gassy tube, in that the ;

ae Telephone Company's tubes operated in ) eee

ah ionization whereas the Hewitt tube depended upon ioniza- 2 55

N tion for its, action (272 Fed. 194 and 392)... ire

5 n 0 novel. proposition that «.case should: he: dechded 5

on the testimony of witnesses given in some other case,

directed io a different state of facts, but if petitioner

wishes to urge such a proposition, it ought, in fairness to

the Court, to call attention to the testimony of its own

expert, Millikan, who, testifying in the same case for the

Telephone Company, said, and in so saying was sustained

f by the Court, that the devices used. ho the Telephone

Company worked “on an entirely different principle”

(Vol. I. p. 118), which he explained was due to the fact

chat they were “evacuated to such a degree that the. resid- |

uary gases play no part in the operation” (p. 119), so.

that the current was gov by the space charge, im = * -

affected by positive z aten (p. 115).

ß Here is a vecoguition hy Milliken that the diffes-

enee between Eangmuir's tubes and the tubes of the prior

5 art was a difference in principle and mode of operation. .

Langmuir's references to Lilienfeld, Which She. eee

floner has also quoted in connection with its first point,

vin be discussed in connection. with, our answer to 1 88885 5

for the Court soe ra —

The 3 says that the reference to gaseous tubes

in the DeForest 1919 Bulletin can en ee, ee,

“The gaseous medium of the audion is nothing

ta tag lana = bein ih ac pli elit

.. tric light bulb—air being a gas, and the bulb con-

taining some residual air, in 8 words defendant

(DeForest) uses the same ‘vacuous’ vessel that

8 —

an immensely useful, thing,

A hard anion was useless becatae it was sill a gaseous 1

tube, designed for use as such. The only way to make

it operate was’ to increase ‘the gas pressure to the value

at which the gas would act as a conductor; it was common

practioe to do this by heating the tube so as to liberate

‘more gas and increase the density. This is exactly what

the DeForest bulletin recommends (Vol. IV, p. 137).

When this expedient failed the audion was discarded. -

The Langmuir tube ie a useful tibe because its opers- ;

tion is not dependent upon gas. Langmuir dispensed with

the gaseous conductor upon which the useful operation

of the DeForest audion depended, and by doing so made :

a tube which worked infinitely better.

—

rete :

—

Soh Pe — rede

* Bie ae rae ie

43 8 ~~ 7525

at 8 7

725 8

bee

tend that if the | vacuum ‘in a DeForest ‘tabs was ms 8. e oo

5 1 operative, but it it was sila better by ‘angmuir

the usefulness Was greatly increased.

This is not our ¢owtention. ‘Whe te Velo 5

DeForest audiôn became better with use, the audion be-

came useless. Langmuir’s i invention is not a useless, but :

28 . because 3 audions may have

Po 2 ts eae

| fe TT

oe The prior art ‘devices.

e clon ioe data 5

5 ir claims embody the same structure and principle of 8

operation as the tubes of the patent. They are: me

* DeForest audion, the Fleming valve and the tube de-

f German paper published in 200

me DeForest audion. :

By an ingenious play on . the 3 makes

ee plausible argument that any tube which amplifies at

3 voltages above the ionization voltage is a tube of the

patent, from which it asks the Court to conclude that

_ because the old style gaseous DeForest audions ampli-

fied at voltages above ionization, they must have operated

by pure electron discharge. The introduction to this

amazing argument is subtle. At page 27 of the brief,

. after having enumerated the characteristics of a pure

electron discharge as 8 4 in the — specification

x petitioner Baye: : ve 25 mo oe

statement that there must de dene of 4

jionisation' as this fermi in, “ ploy 25

. . Hagan“ ee a oe

f ignores what: Hogan ssid he meant by

. eed ionization” and substitutes on bette

.. or ore of he fun

. tions for which it is designed.”

u ey Ha eal OP ee :

_ one ue oat ueber pata ri 0.00 where

lange N

— ned no be here sad, bow

2 the gas content in a. pater ee

* h petitioner now says operated with-

“out “harmful 8 were nevertheless “of prac-

‘cally no. valne in. the el hone plant” (Vol. E. P. 721),

o its optimum value ar d the er

s audion to which Jewett refe

ä eben e

eee eee eee

: audion was not to get a pure electron discharge, but 40

80 from the point of view of the user of @ Langmuir

| See nance eel

i uy and ‘necessary is “harmful”; the modern user of tubes

i demande a tube which’ does not require constant and

critical ‘adjustment, ” So just as the expressions Mich

* to a steam engineer and mean another thing to Fleming

andion, being dependent upon the ‘varying

43 eg ate

Ec .

steady and reproducible? The current in a

ol the gas, is erratic and irreproducible,

155 stant adjustment of the B- battery voltage to :

for the varying conductivity of the gan. The

ference is that the two tubes, operating under jidei 0 5

the same „ͤã ò. deat

ciples of operation; the audion on the principle of gas -

Sete eee eee

electron discharge.

w. Fleming valve. © Ney

Fleming, the inventor of the Fleming valve, described

re.

“his invention in, 1905 in a scienti#e’ paper before the:

Royal Society (Vol. V. p. 143).. W 5

5 the characteristic operation of his valve,

5 5 by curves showing the current readings at ‘different voll.

ages. The defendant's expert, Chaffee, testified that he cS

had examined these curves; when . in f

9 se said pong 15 p. 3

r (Rp. *

copied in the “Scientifie American,” in which he uses: he

terms “very peffeet vacuum.“ and “highest attainable

“ vacuum,” and says that a vacuum is high “when it is re

duced to one hundred-millionth of an atmosphere.” oa

Fleming was simply indulging in striking hyperbole per-

missible in a non-scientific article. In those days nobody

knew how to measure a vacuum of a hundred-millionth

of an atmosphere (Vol. I, pp. 208-209). What Fleming

was really talking about is demonstrated by another

statement in thé, same article, which the petitioner does

not quote (Vol. v. p. 174):

“when the vacuum is very high (that is, if the 5

residual gas pressure is something less than dne ten-

millionth of an - er the phenomena be-

comes simplifled. We then observe the well-knowg

effects of the Crookes or Roentgen tube. The elec-

trons in the negative electrodes are projected from

» Ee omiae 0 Se, one oe fence ee var bigs

velocities; and as their path is not sensibiy dis-

Gp eS apr IS OO

2 to operse winth the yuctanm Sones too

W bon

—

as the Court of Appeals of the Second Circuit held in

"Marconi v. DeForest, 243 Fed. 560.

1679 and at I. R. pages 1307-1362. Sage 5

‘The Lilienfeld experimental tube. ; 5

petitioner quotes with ‘refcrence. to Lilienfeld a few

| This Fleming matter is discussed at Vo. I, pages 1676

| disconnected sentences from Langmuir’s deposition.

Langmuir fully discussed Lilienfeld's work and showed

What it was that Lilienfeld did, at I. R. pages 1407:

* see also Hogan, Vol. III. pages 1607-170 :

5 The Lilienfeld paper described certain labora

periments performed with. a complicated pei POH aeke use-

less tube which is here illustrated.

was kept immersed in liquid air and

was never sealed off from the pump.

a radio tube, and no possible utility

„ :

to Lilfenteld's satiafaction a theary

5 of physics which all the xperts

- ridicule (Chaffee, Vol. I. P. 338;

Hogs, Vol. 1. 9 Se: Siete.

I. R. p. 15).

The current was carried by an ac--

tion entirely different from that of

: i

„

nothing useful. . e e

ple“ (. R. p. 1784); in Lilienfeld’s tube no electro

. Vol. III. p. 1531), as appeared strikingly when Lilienfeld

u highest. vacunm that: he: knew hoe Del the con

duction in the Lilienfeld tube was not Langmuir's con-

_ duction; his tube “operated on a totally different prin

passed directly from cathede to anode; they progressed

through the tube by a series of jerky steps by a mechanism

known as “secondary. electron emission” G. R. pp. 1066.

1071). This caused the energy of the discharge to be

delivered to the walls of the tube (Vol. V. p. 368) rather

than to the anode, which protected the anode ‘rom bom-

bardment (I. R. pp. 1380-1381). Langmuir has no hesi-

tation in-stating that Lilienfeld’s vacuum was good enough ee

to prevent positive ionization from affecting such a dis- .

charge, but nobody has suggested that such a discharge 72

has any practical use — p. 1508). “As the Lew Exam- 55

iner said (Op. p. 13): 5 3

“The Lilienfeld devise with its long constricted: AP

‘ea is obviously impractical for any commercial!

purpose. The walls would tend to melt under elec- *

tron bombardment and would become so ‘hot as

to furnish vapors under their own vapor pressure.”

Lilienfeld’s arrangement of electrodes was’ such ee |

it was impossible to bombard them ‘sufficiently 60 pro

duce a Langmuir tube (I. R. pp. 1433, 1403; see also

Tea us age: ne ee

filamen oo Saas

den of X-ray tube which 48 0 sects: ee

of gas ionization. and is inoperable without. gas Oink 3

p.280).

The alleged 3 of the tube of Lilienfeld’s 16(0

paper to certain tests. useful for ascertaining the presence

of a pure electron discharge in a practical tube is without

_ significance; for example, the fact that Lilienfeld’s “sec- 2

- ondary emission” discharge was independent of filament 1

temperature under certain conditions simply means that

the current under those ‘conditions: was determined by

the secondary emission phenomena (Vol. III, p. 1725)

= and constitutes no proof that it would have been deter- i

= mined by | space charge i in the absence of the secondary |

emission. Lilienfeld himself repeatedly said thut he had

no space charge in his ‘tube tor I, PP. 331.3343 vol. N;

pp. 476 and 395).

'. . There is no e that space charge . lim- |

ited his currents Col. III. p. 1706). The constancy of the

; current was actually due to an enormous eg re~

si ance in series with the tube (Vol. III, p. 1705).

‘These matters are fully discussed at Vol. Ili, pages 1697- 5 5

1709, 1724, and I. R. pages 177, 1364-1407.

It seems absurd to suggest that the claims of a. patent on 5

an invention which has done what Langmuir's invention

55 5 has done must contain limitations. to distin

__ from any such useless toys as that which Lilienfeld: de-

____ scribes, but it is impossible to find' in Lilienfeld’s tube on

ay theory a discharge “substantially unaffe act aay

Secondary electron emission from the beeen the tu 7 :

aed 1); or “tube walls” “fashioned or N

tube, if the tube has good

ducible and stays reproducible 0

one would object to the tube because it had ten

mierons of gas in it, that would be the last thing

di0 think of. Em iit ine en eee e ae

>, amd. that gas changes and the chi

etme _ causes the ch :

way, ina ‘non-reproducible way, then the gas pres.

1 e sete: | 7

5 3 ; 2 N f

f The invention is not a vacuum, or even a degree of

vacuum; the vacuum is important only as one of the ele-

ae "as ied a reference ago the 6 a

1 5 tioner that it was not cited ee np es ent which

is the only patent involved in this appeal. (Vol. I. p. 346). coil

Another Soddy reference which was offered by t the 08 Seas

tioner but which is not cited in the brief @ Def nd

Exhibit No, 18) discloses an experiment by which Soddy

| proved to his own satisfaction that when . hot ‘cathode Bet

5 tube was thoroughly exhausted no ¢ a bat all . |

The Doone e sama ta: se old

art ‘carbon filament incandescent 8 —— 7

technique.

The Bessel Bauen article . some „

1 5 Pass through it (Vol: II, p. 1580).

85 made with a tube in which the gas pressure increased the se

moment the current passed through the tube to a value

considerably higher than that in the DeForest audion

(Vol. III, pp. 1669 and 1670; Nok I. p. $42). e

article it is said Gol. I. 5. 384% 1

che electric current requires the ponderable gas

partie as carriers, in order to ee ae

electrode to the other.”

. None of these references

= a ate tube and none of them qd sole ses the p recau ie I 8 2

oe necessary to produce a vacuum maintainable during op-

eee ee e ry if the device is

‘the statement (Op >:

JJ Weal cay of hs uns

ences made fully available to the public by proper

disclosure the now claimed in the issue as

‘ reformed, or that the proposed combinations of

them, were s. The fact seems incontro-

vertible that a substantial and valuable contribution

to the art has been made and that, within the limits

explicitly stated or necessarily implied in the claim

Rene: it earring to “sei protection.

"Petitioner criticizes us for referring to 5 electen .

discharge et Langmuir’s tube as a “new type of dis.

charge.“ Petitioner says it is not new, but petitioner's

witness Richardson, in his book published in 1916 refers

32 ee

51 oe

. since 1898 (138 Fed, p. 671). „

. fancy, it was because it was being held back for the want

af just such a device as Langmuir gave it. The art would

be in its infancy. today if it still depended upon \the Flems

: ing valve and the DeForest audionn

oe: ‘But whatever the fact may be about the radio art, cer- |

‘tainly the telephone art was not satisfied with the inade-

quate devices upon which it then had to depend. Tele-

phone engineers had visions of a transcontinental line.

They realized, ‘as. defendani’s witness Jewett put it, that

to solve the problem “it was necessary to enlarge the art

beyond anything that we knew” (Vol. I. p. 403) and that

the solution must be found in what was essentially an

im rtialess type of repeater, an amplifying ‘device which

involved the discharge of electricity through some sort

of conducting medium that did not involve the moving .

of actual physical matter” (Vol. I. p. 404). They worked oe

on this problem for a year and a half; the best solution

which they found was a a ONY; arc ree whieh, was. :

never used.

DeForest was himself a. telephone engineer. He ‘ap-

preciated that in the audion he had the ideal device

i he could get rid of the trickiness and increase the power 1

level to that ob wtih baad ie on an ordinary commer-

Gal line...

Here was a challenge te DeForest’s is tea ledge and i in-

we Forest, 2¹ Fed. Lud, at p. 925). If he had

boyvercome the limitations of the audion which

made it nsuitable as an element in a telephone r

his success ae have been assured. But he did not i

know how. He risked the 8 of this s vital demon- 8

e — —ͤ— ratio —

8 5 | The petitioner's gener proceeds from orn ll

The petitioner states that the e eee en

detector was recognized as a gas device and as such had

‘an ionization voltage of about 25 volts and that it was.

therefore, customary to use the detector with an im-

pressed voltage of approximately 22% volts; in other

"words, that the detector was ordiziarily used at voltages

below ionization. The petitioner’s own testimany is

5 the reverse. Van der Bijl testified (I. R. p. 99) that the

audion was never operated belew ionization and (I. R. p.

4 194) that the detector was mene operated from 89

to 50 or 60 volts.

Petitioner also makes the statement that hen voltage -

very slightly above ionization voltage (% volts) ms im-

pressed upon the audion detector it would biu

Here again the: statement is not borne out by the evi-

daience. The voltage at which a tube will blue-glow, as

we have seen, depends upon the pressure. The DeForest

Company recommended for an audion detector, as well as

8 = „„ 0 ee

as “adjust the battery at the voltage jast below that at which

!; 4 :

“ication that i s-operting by pure dernen a

AEP DADS 4

From ben fale premises the petitioner angus

The argument is the s

advanced under its first point

of in our answer to that point

fallacy of the argument is feats entities by. the 3

facts that e .

(a) no withess hag testified that the fubes upon which ae

_ the petitioner relies to make out this defence were 525 1 0

electron discharge tubes; .

(b) the evidence in so = as it shows 1 about 45 es

| | the operation of these tubes shows . Ave that they. oe 5

ated by gas ionization infra, p. 56) iu 20

(e) both ‘Langmuir (Vol. II, p. 1285), and Hope

Col. III, p. 1614) testified positively and without. con-

tradiction that the process of. evacuation used for thesé

tubes could not possibly have produced a vacuum suffi-

‘sete ehh niente: Jeon oan NG

. 8 .

. ©

: .

+ *

oe a ¢ DeForest had any aa 8 it i is. surprising

15 be tat he wes oe alte rie ye eae

ot e fact; of course, is that the letter shows no such thing. 2

oes “All it shows is that DeForest was not satisfied withatube =

which blue-glowed. at 15 to 20 volts—quite naturally de- 8

cause such. a tube would saturate at voltages lower than

chose at which it was intended to dperate, either as a de- ee

- tector or ‘amplifier. He wanted a better vacuum than

that, certainly; but all he wanted or thought he could use

was the vacuum of the audion detector, which. normally

operated from 30 to 50 or 60 volts, the samé optimam 125

pressure that he always | wanted. .

Lede testimomy.

petitioner quotes Langmuir’ s testimony as proof that

the maximum antplifying power of an amplifier tube

aly containing gas is secured at approximately “7 volts and

~~~ “asks the Court to draw the . that any tube Which

i amplifles ‘at any voltage above 27 volts must therefore be

a Langmuir tube. ö i

We ask the Court to read this eee (Vol. III. p.

1427). ‘What Langmuir did say was that a gassy tube

e e wells that a e tube W e best

5 1 one pees e best at 27 volts i e e fe 5

64 or 67% volts does not mean that one was substantially _

_. fiffected by ionization and the other wes not. It means

„imply that the critical voltage’ was different, due to the

_ difference in the gas pressure. This was typ onl of all ae

prior art audions and one of the great objectior |

pay. ne petitioner pointed out in its 1919 circular. EC 5

eee eee eee e e, 8

8 éathodes. ~

Finally the petitioner resorts to the Pan argu- 8

8 ment. that because Lamont and Hyde may have used tung -

Sten filaments they may have obtained by accident u suf. 15

fleiently high vacuum to cause. the tubes to operate with. 7

out eppreciaple | gas ionization. ’ The supposed authority

for this is Langmuir’ s statement that in a tufigsten i incan- | :

_ descent lamp, after continued use, the pressure was prob-

ably less than one-millionth of a millimeter of mercury.

Langmuir completely ‘disposes of this argument at I. R.

page 1491, where he explains that in an audion, unless :

special precautions are used to free the anode from o 5

eluded gas “this gas continues to come off practically in-

1 definitely, s so that the. clean-up effect of the tungsten fila- et

ment is not ‘sufficient to maintain a lou) pressure by 2

Which Langmuir meant the pressure of a pure electron

5 discharge; not the pressure in a “hard” audion, which»

Was something like five microns (infru, p. 57), which Was

the pressure of an ordinary carbon filament incandescent fey, sas

„lamp. 2 1 ae | 15

aes What the -evi eee eee eee tubes. oe

ee But we do not have to speculate about these tubes, be. 4

cause the evidence shows very definitely what they were.

pPetitioner's witness’ ‘Hewlett, when asked about the aud- ve

a ions which petitioner now says dette at 67% be 1

ae _ shes » 8 5 8

| 17. What was s the effect of heating the vecsium

ne tube in the manner you describe? = 8

ee Heating the tube lowered the amount of B- ee

battery used on the tube.“ 5 (aa tee

m a Bel Fatih ty the DeForest Company in

8 ae it states: (Vol. 4, p. 137): 5

A hard pulb can be tsoftened’ by e eh —9 — ?

carefully and eventy over a flame for a 17 min-

. utes: ete ty f

Referring t to Hewlett’s ü bur. expert, Ho.

gan, said (Vol. III, p. 1616):

hat is exactly: like the tube ‘boating that: was

ib used by radio operators in che early.

years of the audion, The heat applied to the glass

‘walls results in disengaging gas within the tube

and ‘therefore increasing the gas pressure in the |

tube and reducing the voltage at which a blue glow- .

can be had, and also the operating voltage of he

tube. A blueglow at sixty to sfventy-five volts

. shows in the ordinary audion construction with a

„ gas pressure of ee like four to e e ob 8

‘It is evident, therefore, that hens tobe wide getitianie 5

"mow saye-were the identical device of the patent, as the

identical old- art gaseous audions which petitioner. its ——

1919 bulletin (supra, apna ngs :

- disadvantage that after continued use the tube Would

get hard and require more eber, until- At age

gach a eee sy N

mm other wort, pape ant to ‘petitioner, the e Len gmui iS 9 5

| ae distance e is . more than the oul

hard audion which the art regatded as oe! is

| lusion,

audion and by pumping a better vacuum to extend the

range o/ operation to somewhat higher voltages without ©

«modifying the essential nature of that operption. This

is not the invention. His conception and disclosure were

‘While, we do not subscribe to petitioner’ 8

we do suijmit.that if Langmuir had done nothing more

than 3 ‘develop such a niarvelous use for a device which ae

was discarded as useless, he would be- entitled; to he

5 credit ol having made an n important invention.

8 e

eh Py

W . *

airs Novae *

roher IV.

The «question of. priority was , decided by the 1 Patent 8

Office tribunals in favor of Langmuir in a contest ben

tuen the respondent and the American Telephone and

: Telegraph Company, which has openly defended the pres-

ent case on this issue. The ease for the patent has been aft

: strengthened, not weakened, by the evidence in the pres-

ent suit. Langmuir made the: invention when he made and : 93

operuted a pure electron discharge tube in August, 1912.

ye more than two months before Arnold's alleged date ae

conception. Arnold’s whole idea was to take a DeForest .

R .

5 3

„ E

in the Patent t Otte. in which some two thousand pages

soe printed testimony were taken, 1 ;

The Langmuir application had been filed on October

IK 1913. Two days later Langmuir’ p ted and orally.

eummarized a paper on hig work before the American

Physical Society in New Vo. Arnold was present and

participated in the discussio (. R. p. 1596). The e

was published in the December, 1013, issue. of the Physical

Review. 0 |: r

I is now claimed that in Novena: 1912, hehehe made

„tte invention in question. If he did, he did nothing 5

assert that fact ‘until November 2, 1915, although ‘he had

known for two years what Langmuir sR accomplished

and was taking the credit fer. Se

5 When the Arnold application was his attorney

asked for an interference with the uir application.

Ikhqe interference was declared. Then Arnold moved to i

a "dissolve the interference for lack of patentability. 1 1

lost. When he and his assignee, the Ameriban Telephone

_ Telegraph Company, had thus failed to block the Lang-

muir application, they. proceeded. with the: contest of

priority. The Examiner of Interferences and the Board

of Examiners in Chief awarded priority to ‘Langmuir.

rue Assistant Commissioner revérsed the Board. Then

35 the case went to the run

4 Companyaand they ‘appear on the brie now fled as “ot, 1

1 J thre rete

. "the Southern District of New York, ‘waiting the outcome

5 "(Since Arnold and the American Telephone & Telegraph.

22 tals Vaalpiaedd esaaadlig aon aaah

‘openly condueting this defense in the present suit, and

here will be practically conclusive in the

4015 ease, it would seem that tits is a case in which by

- ‘analogy. there eee be <pplled the ale e eee, = | ;

Daniels, 15 U. S. 120, recently applied in Victor v. Bruns. 15

wick, 273 U s. 670, and in the Feed. Buck Cases, 18

ve ia

„ 9 ; . A “ eee

, — 0 0 Stas ey, *

/ . Ary

N ° f * 7 Ay bene 5 0 0 ge Se

— « * — red

: * 9 . /

; a, a

wl e

. * * 7 ° * 8

* 8 a * „

iy N . * * 2 7

e Work, ‘cast e

; 5 of E oes 1 *

ö 5 Ss

ur to July, én 3 . „

- Langmuir is u graduate of Columbia University, 100 :

and Ph. D. of the University of Goet a W

de he worked led him to a study of pus An laments .

This was the | of a research which lasted many soa

years. One of the fruits of that résearch was the prevent 8

invention; another was the gas-filled lamp, the patent for 125

which was sustained in General Eleetrie. v.

nes

| The July and August, Left

ee tained in well made ‘tungsten lampe, ne 1 ra

they were run above their normal voltages, the

thermionic currents were negligible and would have

disappeured entirely if th€ traces of residual gas

could have been eliminated.” Bali

But Langmuir Wes not ene as he said at I. R. d

T fe ]

“My own attitudé’ gould est be described as an

=_— mind, selon a 13 wt

Early. in 1912 he. began to a more active interest

in the subject: He: discussed th¢ matter with Coolidge,

he waSfamiliar with the work of others in the theffnionic —

field. He set his assistant ‘Sweetser\ to study the “clean-

up” phenomenon, which was then not uuderstood. Sweet- ° 75

ser was working by Langmuir’s side, and what he did wos

ee A | 8 *

ee nitrogen by a physical and chemical ection which is ex:

e plained by Langmuir (I. R. pp. 1561-2), Thus, he could:

observe how the tube acted while the gas pressure became

lower and lower, as: the nitrogen Was automatically

dleaned up by the axtion of the current.

Very careful records were made of what was tii

These records, mostly in Sweetser’s handwriting, are in

% evidence as Plaititiff’s Exhibits.99 and 100 and are fully

xplained by Sweetser at I. R. pages 1704-1720 * by

ngmuir at I. R. pages 1561-68. i

current dropped from, 18 to 15 milliamperes. At five-

* tenths of a micron the current suddenly drapped to 5

milliamperés and stayed there. ‘This drop in current is

1 described at Vol II. page 1125: peas

1 hat (the fall of current) is ‘ann to the seamen

phenomenon that was going on as a result of the

| electrical discharge taking place between those two

terminals at a difference of potential of 250 volts,

And then a very remarkable phenomenon. took

place in that the current dropped suddenly ye

„ ie to 16 and then to & up to.15, down to 5. ag then en

5 8 stayed at 5 milliamperes.” et

peal Shor gh !

The first run on the tube Was made on A5 20 1012

mme current between the cathode. and anode was at 20

volts. The records show that as the’ pressure of gas

diminished and approached five-tenths of a micron the

1 re nent day, —— N

— aed a a

current. wat limited space charge, and was not

n affected toni ration of the gas. oft?

in the interference proceeding Langmuir, testifying to *.

his work of August 2021, said (I. R. p. 1563)* : 4s :

7 AA show clearly that when

microns was reached an entirely: |

green pe of den place.

3 5 77 5

— ‘

rte * roe

a i 5 „

changed trom 5 10 17, and ten sugdenly to ö ml-

Hamperes at almost exactly the same pressyre that

was recorded before. ‘That is, the pressure at we

‘was 0.4 micron.”

first reading that gave 5 milliamperes, the pressure

Langmuir next let in a little nitrogen, and again N

cleaned it up. Here again when the pressure diminished |.

to five-tenths of a micron. the curren} drepped from 17

to 5 milliamperes, exactly the same results. us in run No.

1 of the previotis week. As to this drop Langmuir testi-

fied (Vol. II. p. 1130):

“This is: just another illustration © this same

fact, that we had passed from dhe condition where

there was u space charge which was eliminated by 05

the ees ant positive gore so that the current

* aa, Ce

. * 1

65 | . ‘Be

i te 8 —

‘that: it a By 5 pure electron locnarge subitanialy

4 \ 3 a

: Ne Nae 5

unaffected by ionization. 8 8

In each of the rum that of Abt 20th, that of Andon „

Alst, and that of August ih, the tube behaved in the 5

sänie way; thus it showed the practical characteristic of 7 1

coe substantially unaffected by positive ionization. He had :

then understand the theory of its action. Indeed he was

" puzzled. By the accepted theory of the time, in such a

the tubes or the patent, 7 that the current is 1

adueible and not ‘tricky. „

Langmuir quite frankly admits that he did not then a a

draw the conclusien that he had a pure electron discharge

the tube, which he had ‘carefully prepared, and he knen :

how he had prepared it, he knew how it acted and he N

kept the most elaborate records of- at, but he did ‘not eae

„ #high vacuum there Schaal have Hen no current at al.

But there was current, and that current had not re-

sponded to changes i in filament temperature in accordance 4

with Richardson’s formula. _Theségtiscrepancies excited

Langmuir's attention, so, fnuch so. that he arranged to see.

Richardson in New York and talked the matter ober with

him for a, whole afternoon on the of Columbia a i .

University, but Richardson had no ae to offer 9

Lungmuir was then interrupted by some other y

ae fu he had Previously ee in November he re i

5 or

8 step i is caretully 3 in cereale „

and every possible sort of data set down. On page 139 4 oe

of his note book he Summarized what: he had done. The .

period daring which the tuhe was cleaning itself he called

tte first stage.“ Of the second stage, that is, after the

a pin inn snp he wt tek u.

eM AS VVV

0 . 660 The 8 nae is r by 8 ö

i duenne, er especially of the maximum . 85

Referring to this entry he testified (Vol. 1. p. 1151): 8

. max int current referring to the current

„ observed with the maximum filament temperatures, 5

. Which is the current which is limited .by ore as

. charge independently of ionization.”

＋

ae This, he calls · attention to the 3 3 a

a acteristic of the tubes of the patent, the reproducibility of

the current, the absence of that trickiness that character-

on ized théold tubes operating by gaseous conduetion.

Under date of November 22nd he enters in his note

book his “new theory of Edison current” (I. R. p. 1576).

It. is a clear statement of the effect of space charge, the -

"factor whioh controls the action of the current when tn

a . R. p. 93 5 and Instructed

"disclosed these results to oe :

i 0 7 * f . 3 68

rent it e at See in excess of 480 and with sub-

1 eae: currents. It embodied the invention, dn every

5 t (Vol. Il, pp. en I. R. pp. 1583, 1585, 1723, eps:

a The discharges were. characterized. by reproducibility 15

and constancy (I. R. pp. 1725, 1583, 1584, 1587). ;

On November 30, 1912, Richardson visited the labora

_ tory. Langmuir showed him his tubes in operation and.

showed him that when the tube was operating. in the

range below saturation the current did not follow Rich-

ardson’ ¢ law, but was independent of the filament’ tem-

perature. Richardson was second pecans as he said

. R. p. 510):

At first sicht this looked- -as though there was

_ Something 55 matter wih my theory.“ a

"pis when: Langinair vent ¢ on. to show that as the volt-

age was increased to the point ef saturation the current

increased to the proper value, Richardson was very much 3

e ß 2

2 “{ was naturally very pleased with these experi-

: ments as they sho that the currents were not

saturated; whence it followed that fhe true value

of the emission was not given by currents at

high tesaperatunes und Die iaritat Mioiiedion «a=

125 ee ee ee ee

Do The “current, limitation,” — a eee

arge. Audzzn his bock published later Richardson

ee ee a

Stes

with him one or two of Langmuir’s tubes (I. R. p. 512).

On December 10, 1912, Langmuir discussed his inven-

tion with Coolidge and fully disclosed it to him, and sug-

gested that ‘the principle of # tube operating without

ionization be applied to an derek tube, and Coolidge, .

profiting by this suggestion, dev si his well known

Xray tube (infra, p. 84).

The next month, January, 1913, 3 not e :

suggested but confidently told Alexanderson that his, ny

Langmuir’s, tube operating without ionization was just

what. Alexanderson needed for use in a radio receiving

set, and made some tubes for him for that purpose. Thus

the Langmuir tube in the Alexanderson circuit ecame

the basis for most of the receiving sets on * ne

ae Langmuir’s a was made 3 1912.

Tune tube of August, 1912, was not accidently produced, 3

it was carefully prepared by the most expert and. ingen

-jous methods and for the deliberate purpose of freeing _

> accidently obtained; they were no freak pl Se ae

ttmey were reproducible, and they were 3 again

a = 2 Augest 2ist and again on aß wth and + ee ain and

up to the bresent time.

5 Richardson testifies that whet iis went away he carried ae i

it from gas. The currents which it produced ere not : a

re 9 1

a X Sth hie 8 eo ay

Langmuir's tube was thus perfected and operated in

August, 1912, two months before Arnold had au idea on : 55

the ubject. Since Langmuir perfected ‘it in August, 1912. 7 1

he invented if in — Mr. Justice Stony i in Wash- Ae

burn *. Gould, Fed ses 17, 214, declared:

“Whoever first perfects a machine, is entitled to 5

the patent and is the real inventor.” Be

The modern exception to this doctrine for the benefit ‘

of the prior conceiver in the exercise of due diligenct has

no application here, for Arnold does not. ee to have

entered the field until November, 1912.

The petitioner’s criticism oP —— work.

The petitioner's main attack on Langmuir's work of

August, 1912, is based on Langmuir's frank admission that

he did not at that time know that he had “a pure mie a

discharge substantially unaffected by ca

i is not necessary that he should haye bara: it is a 5

elementary patent law that an inventor need not under.

stand. the theory of his invention. 3

Langmuir had, and knew that he had, a tube which was. „

carrying substantial currents at substantial voltages (Vol. os

II. p. 1128). It had a hot cathode and a cold anode: it was

1 a Fleming valve, of a new kind. a kind that operated em

steadily und reproducibly. at high voltages. It responded

ae FFF

„

muir did not know the theory of how thé tube e he x

could not conceive the invention. a

This psychology of the ‘act of invention 15 of 1

when a man is trying to claim as his date of invention a

date back of the time he perfected his machine; the Amer- :

ican patent law lets chim have the benefit of the ante-

ceedent date of conception provided there is disclosure

and diligence in reducing to practice. But when, as here,

the inventor is not trying to carry his date back of the

time he perfected his machine there is no need to go into

the question. Surely a man has invented his in e

when he has deliberately built one which works; ere

may be dispute as to whether he invented it at some

: earlier date; there is no disputing the fact me has pi

it when. he builds it and it works, „„

The cases which the petitioner cites 3 no .

Hon. Tilghman v. Proctor, 102 U. S. 707, was a case in

which an accidental effect, unappreciated and never fol-

lowed up, was relied on to anticipate a subsequent patent

for an important invention. Pittsburgh v. Cowles, 55 Fed.

301, was a case of the same kind. The rule, as stated in

8 case as follows:

these decisions, was expressed by lies Tarr in the latter

- “Accidents of this

Beh result and thereafter consciously and purposely adopted ‘ :

the same means for producing other tubes with which he __

accomplished the same result. It was not if any sense an

abandoned experiment. He followed up his work until 5

he had worked out the theory of the operation of me

tube and explained to the world for the first time how

e eee eee a

The petitioner also attacks Langmuir’s August wort?

upper the ground that there is no evidence that Langmuit

had any conception ef the utility of such a tube. 0

Its utility was self-evident) A tube with a hot cathode.

and a cold anode was a known, useful rectifier for alter-

3) exmasiecenonin gracing Read

Wehnelt. Langmuir's tube was obviously a two-electrode

_gectier: having all‘the capabilities cof thé Fleming valve ”

and the Wehneft rectiler and also having the new prop-

erty that it operated very steadily and reproducibly at

high voltages. Langmuir proceeded to rectify alternating —

current with a similar tube in November of the same year.

_ Petitioner atemps to meet this conclusive denonsre

= Me By aging 5

. e

a large scale in airplanes dur e

8 the voltage which Langmuir d in August, 1012 (l. R.

pp. 1189 and 1007).

: In the Feed Back cases, DeForest was accorded a dete

of invention based upon an accidental result of

experiments. conducted by his assistant in August, 1912, -

although there was not a word of evidence in that case

that DeForest then appreciated any utility for the thing

on which he subsequently was granted a patent. In that

case the Court of Appeals in the Third Circuit said (1

Fed. 2nd] 925, re 278 U. 8. f 562):

; whether DeForest advanced toward ihe: inven-

tion intelligently or stumbled upon it is a matter of |

no concern, for it was an invention none the less.

The United States Government and three great in-

dustrial corporations claim it and all the world

using it. DeForest may have made the fe d

haook-up without any preceding notion Pole

would work; an order of denen we

Whether Der

5 ne 5 0

\ ae

" 4792-1798), e a that certain experiments which *

had made with an approximately. duplicate tube showed

that the space charge was not pure and that further re-

of the gas pressure would still further 2

duce the current (Vol. III, p. 1790), 5

Angmuir’s testimony in rebuttal (Vol. Ill,’ pp. 1916

) completely disposes of Becker's suggestion and W.

work in Noveinber i is based upon the fact that Langmatile:

was a highly qualified physicist and on the assertion that

he Was not producing practical results, but discovering:

Langm . 4 great 9 but he is pas a great

ee ene eee We have said that

3 previous work. Both the

"(this we have’ already done with Ne. nd %,

pears to be three or four times more ene than

acy: DeForest audion). .

N 1

No. 2 was a eee, or audion re ‘tube which

‘White had made under Langmuir’s direction for Alex-

Anderson. The evidence is positive that it operated by

pure electron discharge (Vol. II, pp. 1191-1105.

In view of the fact Jhat Langmuir had a tube in August,

_ 1912, which did operate by pure electron discharge, that

he made three tubes in November, 1912, which operated

the same way, that Sweetser made another tube in

November which also operated the same way, that Lang-

muir had given to Richardson in November, 1912, a pure

electron discharge tube, had fully disclosed his inven-

ein dee 1912, and to White in Feb-

1 8 ruary, 1913 (I. R. pp. 1640-43; Vol, III, pp. 1468-70), anid

had made and operated three electrode tubes for Alex-

ee ently tn. March: 20h, eee oe

» Bot possibly mean that he had no conception of the in.

vention until that date .

The entry is perfectly clear when read in onietion

7 0

. *

2 N ö 76

recorded his determination to cunstruct a pure electron

discharge, three-electrode tube with the ale anode of

the conventional DeForest’ audion: . ; hy

jf Arnold’s Work.

The Court of Appeals of the Dfstrict held that Arnold

did not conceive the invention until long after ees

reduction to practice (Op. pp. 94-5). .

Arnold’s alleged conception.

" -Arnold’s so-called conception of the invention was as no.

ing more. than a DeForest audion operating at a some-

what higher voltage than 40 volts. His whole idea was

that, if he took out “more of the residual gas” K

p. 414) he eoüld raise the voltage at, which blue glow -

appeared. ‘As he himself said (1. R. p. 2166): 6

“We observed at this time that the 11 haze ap-

SG oe peared when an ‘attempt was made to operate the

tube at higher voltages than about 40 volts; and in

connection with my disclosure to him, that there

would not be any blue haze if preper precautions,

were taken to remove the gas, I also pointed out

ie a to operate the tube at

that this operation at such a

i ? 2 * 8

referred were due to gas effects which were not mani-

tested by. blue haze (supra, p. 41). On the cohtrüry,

he thought and said that when the audion was operating

with the plate voltage carefully adjusted to, the optimum

| value “the action was purely electronic” (I. R. p. sas

; . A Langmuir said (I. R. p. 2057) ¢

“Arnold frequently speaks of audions in a way *

| Which indicates to me that his Viewpoint in regard

to the development of these tubes has beer! very

1 different from mine. For example, on page 39

II. R. p. 2193], he says:

“ ‘the principles of operation of the high vacttin

repeater that I contemplated were the same

as for the original DeForest and McCandless -

audions, such as DeForest Audion 7-A, when they

were — below 82 e at which gas wee

5 l. u unf celeg SAR

Forest tubes at voltages below those at which gas

effects became apparent, I took the data,’ etc.

i 2 8

_ “ ‘Being interested in the operation of the De-

“From these and similar étiiteménis: it is clear 5

4 that Arnold retained the viewpoint that he had in

have resulted in nothing more than a DeForest audion Ss

5 with the same erratic. characteristics and witlr the same

eritical adjustment of voltage to the optimum value ex- Pe

cept that the optimum value might be somewhat hi

This is not the invention; Arnold’s alleged conception

was therefore not a conception of the invéntion. 5

And Arnold’s subsequent work showed that he had no

conception of a tube which would operate steadily and

reproducibly at any voltage. His test of a good tube Was

the voltage at which it showed blue glow (I. R. p, 20).

He was quite satisfied if he could raise the voltage i

which bine glow appeared, notwithstanding the current.

was irreproducible at any: voltage ae. showy

ionization. vokdaßze.

Ascordinigly Arnold regarded 4 tube as a good tube if H.

did not show blue.glow at voltages in which he was inter-

_ ested, and he testified in this suit that one such tube ae

showed a pure electron discharge up to 240 volts (Vol. 1.

p. 611), although. as he had to admit on cross examination,

the curves which he produced showed that the current was

completely irreproducible above 23 volts (Vol. II. p. 657:

—

Ae ee 8 in Chief held that ee |

alleged conception of November 1, 1912, was incomplete.

ge 0

one conceived the idea that a rubber button was a.

. „

in that it included no adequate idea of meabs (Op. N oe

e ssceb thie br quoting frvel the opinion ag

dt the Assistant Comimissioner’ te the effect that if any-

thing, he could go to a rubber e at hav

Sod err i te 7 Caw

es 5 e

0 f 4 * . os 3

„ 2 3 * 0

1 VVA

tion. But in this case elses was no 3 to whom

Arnold could go; the normal man skilled in the art did

not know how to make such a “button”; ee

Moreover, Arnold did not propose to — upot the skill

of someone else to reduce his invention to practice. He

himself was the man skilled in the art, and as part of his

| 5 5 A i . . a we

~ *diselos he stated very definitely his idea of means, =

Which merely to exhaust the DeForest audion by the

technique which he used in exhausting. his inercury are

a rectifier, supplemented by tf use of liquid air and char-

coal. JFCFFFfETE!TT

audion into a Langmuir tube (Vol. III. p. 1913; Vol. III.

pp. 1726-9; I. R. pp. 1101-2; . R. p. 205). Moreover these

be are not the means which Arnold now says he Inter used

. in his reduction to practice. RSS |

S5 Neither in his ‘dledlosure'of Newenbicl 4; 460% r te: ;

the records of his later work prior to a note book entry

ot one of Arnold’s assistants dated in October, 1913 (Vol.

III. p. 801; Vol. IV, p. 327, No. 63), did Arnold make any os

: 77.7... a ae

5 he used in his reduction to practice. | 5

. this-sttiking-drewinaaiice

is that Arnold simply followed a procedure whiich was

think of recording it. This explanatich is emphatically.

contradicted by the fact that some three years later Ar-

nold applied for a patent upon this very-procedure, claim-

ug it as an invention, and testifies that when he filed ren

his application he regarded it as an invention, and some-

ming different from 25 ee arc e Lae II.

0 o

00 |

5 :

contain no idea of means sand although the necessary 2 =

of means involves something eo novelas tobe the proper,

subject of a patent. ,

And that Arnold did not 3 any adequate idea a

means, and that the knowledge of men skilled. in the art

was not sufficient to supplement the inadequacy of his

disclosure, is conclusively demonstrated by his first at.

tempts to make some good tubes. In December, ab. 5

instructed Trimble to repump some of the DeForest or

McCandless make of audions to see if we could get any

better vacuum in them“ (I. R. p. 2246). as

This was after Arnold’s alleged reduction: to 1

; eee wart Mdghly thilled lp the xt: he was the

man who had been carrying out the mercury arc exhaust

for Arnold. He tried to repump some of the DeForest 55

audions to see if he could get any better vacuum in them ae

and he failed dismally. . gon:

Arnold excuses Trimble’s failure by an that “ “a very

VPP

conduct the exhaust that the filament will not be destroyed

during the exhaust” (Vol. II. p. 749). This was something ae

_ whith Trimble still had to learn in December, 1912. Just

= when and where Arnold learned it we are not told! cer- —

5 rr e eee it frome bis, mercury are work,

8 after Lana Physical Reviow paper was jublishe

i . di coceation

Aue alleged reduction to practice by Audion 7-A i

late. — Joven

ae >

4912 (l. R. p. 2156). As the Board of Examiners in Chief

held (Op. v 6), it wag at best a mere accident which be

Aid not appreciate and which he could not repeat.

The results of that e are e

ae R. pages 2027-2042. The day after the test on which

petitioner relies another. fest showed that the tube was

_ again’ very gasey tube. e — D,

* *

eat v 2031).

Arnold has been eee 3 3 aa

ingly so in connection with his Audion 7-A, where he has

reversed his position not once, but twice, an he cairns

of his case seemed to require.

When Arnold swore to his preliminary 3 10 .

interference, he relied on the November 29, 1912, tests of oe

his audion as his reduction to practice of the invention.

When, on his motion to dissolve the interference, he

one ‘was contending that there was no invention, he produced :

__. these same tests as characteristic of a typical e

a DeForest audion (I. R. pp. 470-477).

these same tests as proof of his reduction to

the iene e sacs 0. R. P. besser

8 Seay with his be’ Pa

th — os the limited energy ps

oe And when, on priority in the interference, he 3 de. 5

5 cided to claim that he was the inventor, he again produced ;

‘testified that the tube “did not belong in the same class

25 fade: 1913, Arnold 3 a prema for 5 é .

the purpose of proving the „ of transcon- 0

8 audions, the’ power level was kept much jower than on

a commercial line, and he used some of his mercury are

* .

82 55

e eee ae

But while a low. power level was W 1 labo

"tory experiment, it would have been im acti em

ordinary commercial line, testified (Vol. *

11 3 that if Arnold e inven-

tion and reduced it to practice months before, he would

have been satisfied by a demonstration: 80 demea 8 . .

as this.

Petitioner says ¢ on page 77 of f. its brief that. this devin

“stration was “a distinctly. by-the-way incident, and mot

. at all an important or official test.“ Arnolds bee

in the interference, I. R. page 2199, is: See ey

At was a n spectacular et,

a is: evidenced by the circumstance that President

| Sella te Resa, e

rane Company and other notable officials of that com-

» pany and of the seg Det 1 wit.

5 eo ee r N

1 5 foe 8 te . 8 2 ‘ant

a 5 a 83

1 was . with, the old DeForest 8 and the a, om

8 5 of this test shows that the voltage on the tubes was being e

Ceonstatiu adjusted: Moreover Kendall's instructions

goes specified the use of a protective device, a device on whi „„

Arnold later filed a patent application. In his applic a ae

don, which was filed April 16, 1914, rages fe device

8 he says (I. R. p. 2345): bee

A4 has been found i in . the noes audit structure = :

that when energies — of considerable magn nitude, |

such, far instance, as are encountered in

_ telephone ‘systems, are impressed upon the. input

circuit of the audion, a blue haze’ appears in the

bulb of the audion.”: 5

N Arneld's dream in W in, was an “ition.

5 8 which would handle the energy required for an ordinary

. commercial line, which. was about 1 watt. In October,

1913, he had succeeded in 1 producing some tubes which ab

ee handled something less than 005 of a watt. At about the

ame time 33 working with, two kilow:

- 84

‘The rule of Adamson v. Gilliland has no application in :

"this case. (Petitioner's fifth point.)

From ‘oid we have said above it is clear that. tt this case 5 3

turns on inferences or conclusions to be derived from sub-\ 4

stantially undisputed facts, and not upon findings of fact

based upon conflicting testimony. Such being the case,

the conclusions of the trial court are not binding on this

Court (The Britannia, 153A). S. 130; Harkin . Brundage, 1 5

276 U. S. 36; Corona Tire Co. v. Dovan Chemical Corps ;

276 U. S. 358, 375).

Moreover, on the issue of 3 the concurring *

cisions of the Examiner of Interferences, the Board of

Examiners in Chief, the Court of Appeals of the District —

ot Columbia and the United States Circuit Court of Ap:

. vpeak for the Third Circuit certainly ge the author

ity of the trial court, 1 g

f On the issue of prior use the testimony wen not taken

before the Court, so that the rule of Adamson v. Gilliland

eS 8. p. 350) ee ag

fs e its brief thet s da) e ,

8 Langmuir told Coolidge at that time was that tungsten

would emit electrons in high vacuum. But Coolidge tes-

| ities thet an den eee e

1510 5

“That when these en nad Linked e 5

Freed from gas in a high vacuum, he had

possible to maintain a discharge, a pure

discharge, from, a hot filament, that the the . ae :

emission had: instead of

moval of gas froni the tungsten fllament, N fei

to be used as a cathode, had increased up toa cer-

tain point, and from there on it remained steady,

and that this was a thoroughly eee con-

; dition.“ 5

5 * e tonal ee e tai: toons Seeing a

5 f 1:0ni- the: MADs SOON:

(b. 1549) -

“o produce a new X-ray tube operating on a new

; _ Principle, on pure. electron flow” (p. 1549). 1 5

We proved this as a complete disclosure on: Dee

5 10 1912, 3 invention to a compet 5 mtist

it himself (Vol. I. p. 1205).

2 5 3 5

5 5 2 2 ‘ < 7 . ire re

85 4 : 7 N

4 ; . 5 ~ >

. } we

1 =‘ he would oe 5 . wan et ele ae

i ay Me =,

‘et be apprecia ed by reference to I. K 2 = wm

Aduetibillty, reliability, eto, so important in the use of

Langmuir's tubes in the radio art, are even more im.

portant proportionately in the X-ray art.

1 suffering led to a rapid development and early :

1682, fron hile it appears that the r of repro-

The prospect of an instrumentality so useful in relieving 1

g commerrial use of the Coolidge tube. A patent applica.

c ’ mitted with the application show that whoever prepared

it assumed that Coolidge was the inventor of whatever

4 as

"Coolidge claims were limited to the X-ray tube which he

had invented, and in the Coolidge specification were in-

_ serted the words which now appesr, in the e, potent 1

tion was filed fer it on May 9, 1913. The claims sub-

was common to his tube and Langmuir's tube. The

basis of this may have been some notes made by Coolidge 5

in May, 1912 (Vol. III, pp. 1506-1508). 5

It is clear on the record that Coolidge was not the first 5

inventor, that his crucial experiment made in September, 5

1912, caused him to feel that he had failed flatly—and he cae

stopped (Vol. III, p. 1561),-only to take the matter up

when Langmuir’s acre was disclosed to lum a few Bop

months later. ie

Accordingly, when ‘the a facts were e the: ee

Col. . p. 1026, 1. 64) :

Ae ee sel ag 0 tw uae

methods herein disclosed are not of my inven

BA dows eee ap pee ee sae

a case where the fundamen

8 improvement issue at different dates, as they normally —

da, and are assigned to the same assignee. Düring e

ute of the broad patent no one can lawfully use the broad

invention without license. During the life of the 1 narrow 5

patent no one can lawfully use the narrow invention with-

but license. If it happens that the same assignee ons

both patents, as it often does, then the period in hh

that ee e right to keep everyone else from

\ 1 |

155 91 Langmuir 9 ‘There | is, W né double 8 b

under the well-known doetrine set forth in Judge Tarr's

decision in rhomson. Houston v. Okio Brass Company, 80

f Fed. 712 (C. C. A., 6th).

The “prolongation of te nop is inherent in any

using the narrow inyention is the longer period during

which either one of the patents is alive (Ohio case,

ik ° 80 Fed. at p. 727). As the Court of Appeals f r the Sixth —

Cireuit said in Dayton Fan & Motor Co. v. peat :

Electric & Manufacturing Company, 118 Fed. 562, 571:

And no valid reason iia Wy tale galas 1 8

an invention may not enjoy the privilege of 2

stranger in thereafter obtaining a patent for an

independent invention made by him, although it re-

late to the matter of his former patent, and was

deseribed, but not claimed, therein, provided he

5 has not dedicated such ee eur to

„ een dee 1 |

od iy Laan He helt Set ee

York, in Van Heusen Pent eS e aS

Soe

patent and the paterit on an

none such. The

If cooudge made no invention, which we deny, then

'. the Coolidge patent is d, and created no monopoly,

but that would not aff the Langmuir patent (O2

Brass case, at p. 727). If Coolidge made an invention.

there is no reason why his assignee should not have a

renner Hie ieee tia Anetta cum

| ea eee

CONCLUSION.

A e tale eee ak Wer rent ode

foresaw the importance of stimulating and encouraging“ a

inventive skill and energy; accordingly they wrote into

the Constitution a provision giving to Congress the power

to promote progress of science and useful arte Bi

clusive | Oi Rilke Haden ene tase eee,

The wisdom of this farsighted provision is. yund

35 ĩ camino

eral Electric Company, du Pont and many.

80 >

89 ESE

. :

large corporations like the Telephone ae sages

te In his speech on ile occasion of the Edison cel tion, .

President. Hoover said: „

“If we would , dae

standards of living and at the same time accom-

modate itself to the increasing populatiot,

maintain on an even more liberal scale than

oe great laboratories of ESR pine cae: f

science.“ 5

Relying on the promise held‘ ous 5

|. gnd assured by the patent statutes, th ndeat many

years ago organized and has since maintained a wonder- :

ful research laboratory, dedicated to the ereationcof use-

‘ful inventions for the immediate benefit- of itself, but for

the ultimate benefit of the country and al m |

The invention here involved is perhaps the greatest of

the many great inventions which have eee from thai

laboratory.

The arguments advanced to defeat the plies ie poi:

_ cious; the principal argument is predicated upon the a-

sertion of scientific fact which finds no support in the

record and is con ed by petitioner’s own witnesses.

But as this Court in Diamond Rubber Co. v. Con-

_ solidated Rubber Tire Co, 220 U. S. 428, at 435:

; & “But the law has other tests of the invention than

8 subtle conjectures of what might have been seen

and yet was not. It reifards a change as evidence of | :

novelty, the acceptance and ace e ales mre

further evidence, even as demonstration.“ | eer

. | "This language ia singularly apt. The utility of Lang-

n attested by the statement of ud

Monnis that the Langmuir tube a |

. i

« as of its 8 and Tend

has made possible radio broadcasting, modern

_ radio reception and long distance teleph6ny.”

Its 1508 is eee by the fact pat the W x

workers of the art had faile.\ io develop such a device at

a time when the progress of the art was standing still. 8

Its novelty is further convincingly demonstrated by its

universal acceptance in preference to the old art devices, 5

1 yet these old art devices, which long ago were abandoned

in practice, are now resurrected and produced as a com-

plete entcipation of the invention.

I a patent on a meritorious invention can be ne =

dy- mere plausible talk, by mere. reiterated assertion of

things which are not so, then the promise which the Con-

stitution held out for meritorious invention is a false

promise, and the promotion: of science and the useful arts

ond: the progress of en, must er suffer.

Respectfully submitted, N

aes eng Evans,

_ Hoserr Howson, _

85 Paxson. DEETER,

‘ 3 : Avpert G. Davis,

; i Of Counsel.

g April. 1981 ° Ss

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