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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondent Brief in Opposition to Petition for Writ of Certiorari
- **Published:** January 1, 1931
- **Citation:** 283 U.S. 664

## Text

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ons OF THE Courts BEL D ee ee es
\TEMENT OF THE CNC...
Subject Matter Inyolved .....-++...-s+0sseeneee
What the Patent Purports to Cover e ee
Scientific Principles C EARS
Printipls of Operstion of Rade W
Saturation )!! easeue
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I.beat — 19
Regarding Conduction

——“j „4

ee 7 fe ; INDEX

1 , | „„ RS
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“ „
76
70

39

43

45

48

48

50

i 52.
“Pacts as to Detector and dee Operation 53
D4

55

56

56

58

60

61

62

. 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

eee . 84 eae
eee —— 9 9 4 8 e 88 Be

as

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N ee 1 vane 1 |
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

52
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

87

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 |
1 ꝛ0use 9
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Cmcurr. Tie

2 ge : oe ie 5 x e seat ;
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

a

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). :

er
was erratic and tricky; no two audions acted alike and
MA sok ge anit ee Bar: Cage As
een e pid iy 4085 e AI

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N eee
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ie

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WN. NN

ae a 28 1
71 „ne ous k * 2 r

}
.
Th b i
wy
7 spe a a REI SN
f 2 2 ö

-

= 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

F
or at least misstated, our position. The invention is not
as
the beta . Op. p. n

3 te Mee ial

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eK one ; 4 ni a 8
n We “ie A 5 5 . n

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,
5

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

8

8

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-

2

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

7

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

i)

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

16
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- |

2

°

*
*

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

3

Tah’

15

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

2

5
Ga

—

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

S

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.”

Wa

| 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

Le

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

75

Tk

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

@

77
es

80

| 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

3
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 *
5

A $ ; 1
* - 9
j 4
ae |
. 7
*
1 4

31

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):

2

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
ee

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

35

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.

*
2
—

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 :

me

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

P

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

3
W bon

#

—

r

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

„

CK

.
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.”

N

. 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

9

‘the statement (Op >:

4

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 :

2

“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

7

„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

"a

55

‘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

85

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 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

85

„
ye

be 1 no. © conception without “perception,” that since Lang-

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

3

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

a,

" 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

a
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

. *
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

77
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) ¢

is

“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-

*

5

“From these and similar étiiteménis: it is clear 5
4 that Arnold retained the viewpoint that he had in

4

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:

8
—

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

1

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,
© are has no filament. It is, however, vill signin
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
*

7.
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

1
r

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

*
U

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 ‘
. } 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
|
\ 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

0

8

none such. The

H
1
L
i

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
_ securing for ted times to authors and inventor's the ex- ©
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
. :
1

2

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.
5
N
g April. 1981 ° Ss

-
4

&

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0055%3A12. Public record. Not legal advice.