# Amicus Curiae Brief — DeForest Radio Co. v. General Elec. Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1931
- **Citation:** 283 U.S. 664

## Text

Pe Fo ae aes =
othe Radiological Sotiety 0 North ‘Américi*i is an asso-_
| ciation: of users of “X-ray: app ratus and the like, in con
2 edicine, . It has been active
.- in attempts. to improve ‘the. present X-ray tube trade con-
ditions and to secure relief from the present burdensome
- monopolies on apparatusand supplies useful in the prac-
‘tice of medicine. It is composed of upwards of thirteen”,
hundred leading mémbers of tize medical and teaching Se
| ~ professions, users of X-ray and radiological appliances,
~ each pf whom will, under the decision ‘and decree of the _
Court below in the instant ‘case, be subject. -to an exten-
5 sion of ‘the urden of a monopoly already too heavy for
8 the medical profession, and the public served thereby,, to“
bedr. It is a fact appearing in this record that the General See
Electric Company has already been enjoying patent.pro-.
tection on X-ray tubes since 1916, under the Coolidge ©
es ‘X-ray tube patent (Deft’s. Ex. 67, Rec., Vol. VI, pp. 1021--.
>, 1029), which protection will be extended for nearly ten &
years under the Langmuir patent, if the decree below is - :
permitted to stand fRec., Vol. I, p. 1281; this brief, pp.
87, 38). It will be apparent that each member of the pub- : #
_ lic treated by any appliances involving high vacuum tube
ee wit be subject‘to, the burden of this monopoly, although oF a.
“the General Electric Company has already reaped all the .
oo rds to which it is entitled by virtue of any invention
_ involved under the Coolidge patent. It is algo to be noted
- that it appears in this record that the Coolidge irivention —
. was — more e than. t coablgs Bax. of the — vacuum .

. refegved 4o above, and is. engaged: in research directed
toward obtaining relief from the‘ monopoly ofsthe Gen- “

eral Electric Company in this field. The effect 6f the a
decree below ‘is to.permit the blanketing of all this work as
, Sy a patent. issued more than twelve years after the stated —

date of conception’ of the alleged invention.

_ In addition to the effect of the decree, below upon 5 the : a
: X-ray field, it has a: ‘Serious and far-réaching effect upon ae

the field of radio communication and the’ public served
thereby, as will appear from the following: _ is
This Court (Westinghouse v. DeForést, 278 U. S. 562)

has held the DeForest patents, Nos. 1,507,016 and 1,507,017,

to cover basic inventions of DeForest, and has thus made 2
ownership of rights undér these patents a necessary. pre-
requisite to the manufacture of vacuum tube transmitting ;

apparatus, which is essential in modern commercial radio. - ;

transmission. It is impossible to compete commercially
in the field. of radio communication witiont operating ;
> rights unler these patents. o. a
‘« The only person outside of the so-called Radio Cacia :
ration group (which includes the General. Electric Com-

_° pany among others) and the petitidner herein that owns © es 3
. rights under the DeForest patents is the Federal Tele-

- graph Company. In fact, the rights owned by the Federal
| Telegraph Company under these DéForest patents are
.|* broader in scope than those held by any individual mem-
“ber of the Radio Corporation group and even broader

‘than those held by the DeForest Company, the petitioner 3 4

herein, The Radio‘ Corporation: ‘and the Federal Com- .
_ "pany are the only two persons holding rights under the

eS, _ DeForest patents in the field’ of Tadio er com~- : - |
_ Miunication for tolls. See
It is, therefore, upon, the F. ederal Telegraph Cinna oS

so tet es ee of the _— for a oo mes

wv. 3 . i? eo ae
3

$

7
:
ahs ,

_ radio comimunication rests and, in. fact, it is due. to the —
a _ Federal Telegraph Company, and the rights that it holds.
- under these DeForest patents, that the Radio Corporation
is now subject to the competition of such a system. The °
' rights of the F ederal Telegraph Company are being exer- _
/-- __ ¢ised by it in the manufacture and sale of tommunication =
: material and by. the purchaser of such material,’ The ae
Mackay Radio and Telegraph: Company, a controlled com: | re
pany of the International Telephone & Telegraph Corpo- :
- Fation,;in the operation of, its radio system. The. public
eee thus gravely interested in the perpetuation of the @x-
_ - . isting competitive conditions and therefore in. the con-
tinued operation of the Heciern} eres and its cus- ee
tomers. . She
The decree of the Court heen. would have the effect’ ae
of. depriving the Federal Company and the users of its —
_. @pparatus of the right to compete with, and of putting a
: monopoly on radio communication into the hands‘of the
owners of righis under the Langmuir patent—that is,into os
| the. hands.of the General Electric Company and of,its as-
ae iated Companies, particolarty 1 The Radio Pei badass 3s
ms ae : It is soneedediy. impossible to carry on nibdern. dio’
_. communication without high vacuum. ‘tubes, dnd bin
the invention attributed to Langmuir by the Third os
_ Court of Appeals upon the p-hearing is held to be|this.
__: precise thing without limitation, the entire art will *
the mercy of Langmuir’s assignee. The effect of such
action upon the Federal Telegraph Company and users —
of its communication apparatus is clear, also the ©
ee effect upon the other parties to this: brief Sea the
ape each of them serves. :
3 _ Aside from its effect upon each of th parties to ‘thls

Danae coe

es

*

oe would. be far-reaching. Not gra would all posi

hands of the Radio Corporation and its associates a com- :

upon the rehearing in the Circuit Court of Appeals and °
ae adopted by Judge Burrincton, speaking for: the majority
Of ramet Court, is as follows (44 Fed. 2nd, si at p. (87): t

‘mercial radio telegraphic communication be delivered ,
into the hands of the Radio Corporation and the entire
X-ray tube art be delivered into the hands of the General
_ Electric Company, but in addition to this, and as spat ted ;
below, darge numbers of persons not directly affected by ne
these considerations would feel the result of this decision. a

The patent is held by’ the decree below to cover the a
- so-called vacuum: tube used in every radio broadcasting eee
receiving set and in every apparatus for radio communi-
cation. The result of this decree would be to put into. the |

_ plete monopoly over the vital part of all of such radio
- apparatus and permit it to exact tribute from almost.
every family in-the United States. :

‘Except upen the ‘payment of burdensome rveltion: no
manufacturer could build tubes especially suited to his.
product, and. all communication systems, such as those
used on airplanes, ships and elsewhere, including those of
-the army and Navy, would be: subject to ca —

Counsel signing this briet, appearing on behalf oa
parties named above, have, therefore, asked leave to sub-
mit this brief, presenting their. argument int support of
"the prayer of the petitiwner that the decree of the Court
below be. gata e and ae decree of the Trial Count. ~— :

"SUMMARY OF ARGUMENT. : a
The definition of the inyention suggested by respondent .

e ; “But a vacuum, or, indeed, change of vacuum, =
isolated and staliding by itself, isnot the Langmuir
invention, but it is a -working tube.in which all the |

-. elements, cathode, plate, vacuum, so co-ordinate __
me and inter-work that current flow is not * * **- =

Bictee.,

Fleming operates below ionization reduce the ionization, and to ) make t ‘ace com-

a ipeusaling: hanes in current t andjog voltage to © secure
S Rare “ desired result. Se See

ei = s » BR Furthermore the tube of the patties differs from an”
€ ' Fleming and the DeForest tubes merely in the degree cele

3 vacuum, — &
‘This was admitted by reationden before the Coutt | =
Appeals. poo

And the result of ak diffe erence in atone was unk new. =

" To the man skilled in the art it was the to-be-expected -_

“result. According: to, Hogan, respondent's expert, there i is

‘no sudden beginning. or sudden stoppage of ionization —

with changes in the gas pressure. The ionization changes

_ gradually with the gas pressure. The discharge changes
correspondingly from one materially affected by ioniza-

; tion to one not objectionably. so affected, i. e., a pure o

: electron discharge according: to Langmuir’s terminology. « :
> Henve there is no new result in the reduction of ionization - ~ iS
-. with reduction of gas _hy raising of vacuum. The alleged =
invention of the definition i is a mere difference in degree,
~and there: being no new tora. — is n0_ at es
‘subject-matter, :

: SE each other and of Langmuir, pear eens
attained by Langmuir, as the thing sbvious t to one De
Mae skilled in the art. “‘Thibir ets lie art :
eee of invention; | Bee

“DeForest, in July and. early. ca 1912 ‘hee in yey aS
employ of Federal Telegraph Company), ‘when confronted _ 3
| by the necessity of avoiding excessive pales oar
_ the further evacuation of his tubes and succeeded
_ securing satisfactory operation; without objectionable

ee

he Sits o >
Aus +
Fee Oy
eae

4
3 3

ienieation effects at einen within the range specifjed by ue :
" the patent (materially above ionization voltages). oe
.. Arnold, ea November 1, 1912, did exactly the’ same
We PO end with an entire apeerrietion, of the scientific
principle involved.
Since these two men were able to sonal airs
result by the application of the skill of their calling, their
“acts lie athwart a finding of invention, as Judge Morris
‘ichos it. Aol °

ae 3. intatias the definition of the invention adopted
__ by. the Court below,’ we ® find that exact thing in the
prior art. |
Three workers in 1 the art did the exact thing prior to
ame weancl
ee ft) J.E. Lilienfeld i in his 1910. paper : iekactds to
anor ~ by Judge Morris and Judge Woottey) described’
ce Saas a ‘tube and a process, wherein and whereby he at-
ee tained the invention of the definition with substan-
Pee sg - tial ideatity. Such identity is: admitted by Lang-
a muir. The date is fixed by the publication and soe
2) 6 ices in his 1912 tirbe, referted to under
Point 2 of this brief, did the exact thing of the
be patent.
Gis a he iaasibity ie Weukeds beth es s accepted: by the
itd District Court and by Judge Woo.tey in the Court :
of Appeals; and is not mentioned by ec Bur-
~ Thealate i is fixed by the eles. :

(3) Arnold also did the exact thing as ss ie
; ee Point 2. The identity is practically admitted,
cree accepted by ne panes Morris and Ie aA

af “The date is k Fontedted, but, we submit, i is Proven.

ig:

Hise: ie Aisi these: instances of prior xniuléigs is
_andyor use where the identity is clearly shown, and the se

dates admitted or established by controlling evidence.

Each instance isa complete statutory bar to the pales:
ofa patent, éyen acimiitting patentability -en we do :
“* not. ee ne ae ere:

4. ‘The alleged invention is nothing more ek a iii
ment of the physical principle of pure electron dis-

_ charge and therefore ‘not patentable, Ree e
Claim 9 is broad Seay to cover a modern X-ray tube, Baie

- such as the Lilienfeld tube or ‘the Coolidge tube. The me
Lilienfeld. tube is admittedly the same as the Coolidge a

RS MEA

tube within the purview of this patent.

' The Coolidge X-ray tube is or covered) by the

- patent in suit.

But-in the Loolidge hie there i is edmittely 9 no space eee

charge effect. eras:
Nor does the 3/2 power law hold. -

Nor is the straight line logarithmic plot obtained d by ui

‘plotting the discharge of the Coolidge tube. -

All these phenomena are set-out in the patent as s tests : L

for the presence of the invention. |
But they are not present in the X-ray ee claimed to”

ae ” be covered by the invéntion.

_ Hence, the so-called “earmarks”. do not. ‘dels the
_ invention as applied to such a tube. They are, Ceneteey,

| not of the essence of the invention. Re
There is nothing left of the invention but a tbe |
evacuated so as to operate with a pure. electron ahaa
_acegrding to the circumstance of its use, without other —

ee : ‘ _ limitation than that the voltages. applied shall be above |

| voltages. This limitation. merely differentiates —

= 2 pd — — and is not patentable,

¥

. : from Fleming. The alleged invention is a mere ee

; x *
‘ : ’ 3
ye yy * + -
bed — ‘6, i 12
\ » 4 ~ ri ‘ ’ .
. 5) i A ;
o* * eee)

ne oo 5. -Langmuir’s only practical application of the prin- ie
Ne ie ciple of pure electron discharge was to the De-
ae x Forest tube.: This. application was anticipated by os
_ *\+ both DeForest and Arnold, Hence claims directed
1 to this use are void.” -— |
- Langmuir did not conceive this spplicitiole of the prin-
- ciple ‘until March-21, 1913. This is shown by his note book.
, Both DeForest and Arnold had made this application i in 58
1912 i ~ a
Even if this SS Sas were eee (which ii is) ee
* not), it was barred to Langmuir by the earlier neenienes ee
and/or use of DeForest and Arnold.

oA: ‘The invention, as defined ane the Cieek bulow. ee.
a e is unpatentable, because (A) the definition lacks .,
invention over the prior art acknowledged i in the
| ee ot it differs only in degree therefrom. :
= (A) The deGnition lacks invention over the prior art a
* acknowledged in the patent. aXe ‘ coe
The atent ih suit (PIff’s. Ex. 1, Rec., ‘Vol. IV, pp. 4: @
to 10) States (p. 1, Il. 16-16) that in the tube of the patent
_ the. electric current is carried: by electrons. emanating
from t ‘cathode, _independently of gaseous iGnization,
and | rentiates thereby from the prior art tubes. a
‘The iibeiney of ionization is set forth (p. 1. 34: to 75) oo
ees which it-appears that when a definite amount of gas. foe
sent in a tube, qvoltage of, say, 25 volts \ cause .
molecules to be split up into ions per | eetrons,
iF hrough “the action and shieractibe 3 f the .
ons” conduction of current across the t

| Nee 1 3

~
.

a : Fleming tube (valve) arid the DeForest tube {audion),
ue Both were hot: cathode electron discharge tubes. The

: = | patentee says (p. 4 .. re hae VAR Ae : |
coe ~ “Another ischarge device seevlonie. ue to igh

. some extent -was the Fleming valve. .:This was a’.
1 “two-electrode tube which, so far as. I’ am aware,
ce -. was always used at ‘voltages well below the volt- :
— ° ages at which positive ionization by: collision oc- ~~
wie curs. It was not evacuated in such a manner as to
permit it to be used at voltages materially above
these ionization voltages: without “is BE ‘sub-

stantial Positive ionization effects.” ag
@

4

ie The sadn ¢ of DeForest is described in the patent 0. ithe
_ 1,1677-92): Seer is ea

ae hee “The phenomena above deacribied + Vita Cian 3

acteristic of devices involving gas ionization are .

taken advantage of in an incandescent cathode de-
_ vice with three electrodes 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 discharge current when gas.
... fonization begins. This point depends upon vari-
-. ous accidental conditions which cause such irregu-
larities in the operation of various devices’ appar-
| ently identical that sometimes only one of a con-
+ siderable number can be used. Ordinarily the gas
jonization in the audion begins to be = 7
| — between 20 and ge volts.” i s

iS

od ba the ionization. voltages and thus without aid
. He could-have had ng such aid since no =
puld have occurred.. He was operating with —__
thode from which the electrons emanated and

°

The patent recognizes the prior existence of both the

neces

4

‘were drawn over to the anode by the voltage applied at as
_ the anode. ‘This was‘then purely an electronic flow, but. ibs
“helow the ionization voltages rather than materially’

_ higher as claimed by Langmuir. |

“That it was withip thé®knowledge of the art that Flem-
ing had a purely electronic flow, is shown by Fleming’s
article in the Scientific American, publighed in 19067 in —
which itis said (Rec., Vol. V, pp. 168, 170, 171):

oe “© -«* * * high vacuum may be a very good con-
‘/ ductor, provided that the negative electrode is.ren-
dered incandescent. This shows that the obstruc-

es i
oe e

a tion which a high vacuum offers to the passage of
ee __ , electricity is not due to the mere reduction of the
rd matter in the space (that is, to the_rarefaction of = >
the gas), but is, in some way or other, largely de-
pendent upon the temperature of the electrodes;
the resistance to the passage of electricity through
>... "vacuum can be rendered very small by intensely
BRB oc 2 pore the negative electrode.
If we take measurements of the current passing
.» through the vacuum when the negative electrode is
an incandescent carbon filament and the other & ‘
* cold metal plate, and, at thie same time, measure =)

‘difference of potential between the electrodes, we
_. find that the conductivity, as measured by the ratio
_- of current to voltage, is not constant, but varies . A

renee — the electromotive force. mere
eA * - * . * *
Re Mi de sha cine Ser Ea mass when |
- + gold, because if they did they would leave it posi- —
Be tively, electrified. If, on the other hand, we elec-
rit + the mass negatively to a high potential and
se it to a high temperature, electrons can escape _
eely from it. In every mass of matter there is |
at we may call a certain ‘electronic —
=

0-

15.

SS \
‘ \
2 \

hence, it follows that the resistance which a high
- vacuum offers to the passagevf el

it is, in fact, the resistance which is offered to the te ae
ejection or drawing out of electroné’ fix : the Co

' face of the electrodes? RTA Bivins é

re

Since Fleming shows a pure electronglischarge passing

_ from the hot cathode to the anode when operated below id
ionization voltages, and DeForest shows objectionable

effects of ionization, in substantially

tube, when operated above ionizating- volt "s it is the fe

contention of this brief that the

ionization i in the DeForest tube while still operating above AS

the ionization voltages, by reducing the ga3-content (rais-.
ing the vacuum) of the tube. He knew “haw to raise the’ a
vacuum before Langmuir (Petitioner's Brief, pp. 21-25).

So it was within the skill of the calling to avoid the ob-

jectionable effects of gas by raising the vacuum. Tile,

we contend, is abundantly shown by ‘the record. .. ee

‘Respondent’s expert, Mr. Hogan, testified that the «;
vacuum in the Fleming valve and in the DeForest audion _
is of the same order—about 1 to 10 microns for the
. ‘Fleming tube and-5 to 10 microns for the DeForest tube
_(Rec., Vol. III,*pp. 1660, 1677, 1682). . a
In the extract from the patent quoted asinine Lengrcate! ate
describes the operation of the DeForest audion as due to
“the rapid change of the discharge current when. gas ioni- ;
gation begins.” This‘ls an error. The operation is in fact .
due.to the rapid change of the discharge current when

the voltage epplied to the tube is changed, exactly as in |

_ the Langmuir tube. “However, the discharge current in| _
- the early DeForest tube, to which Langmuir is"here re-

___ ferring, is admittedly increased by the effect of ioniza nate oa
and this ie eaciaation oe causes # irregularities ,

oe

cea}

t

oes eee Te
ie sede RS

ye operation of the tube and: limits its usefulness. For the. A
-@. _. purposes. of this section .of the brief, therefore, we shall =~

~~ accept Langmuir’s description of the operation of the oe: ee

Se - Forest’ tube as substantix!'y eorrech. oe ee

. When in the DeForest tube the voltage apulied s was,
say, 25 volts, the gas in the tube, according to the theory, © | __

« was ionized ‘(Langmuir, Rec., Vol. II, p. 1246), and the*

3. +. fons resulting therefrom, by their interaction therewith, —
caused additional electrons to flow to. the anade: This |.
resulted, in greater current (Langmuir, Reg., Vol. TL p.. |
1242), ‘which’ “was taken’ advantage. of in a manner de-. = -

pendent ‘upon ‘the uses to which. the tube was to be put.

, For our porpoers here, we may disregard. the pervceise ee
/ use of the tube. ae oe
> + .So-long as the amount of, ioniaation remained ‘within aS

5 definite limits, the tube functioned satisfactorily. But if.

too much ionization took place, iit began to, affect the use-.

, » fulness of the tube (Langmuir, Rec., Vol. Il, p. 1242). |
From the theory of ionization: expressed in. the patent a ae 4

(p 1, ll. 40-56; Rec,, Vol: IV, p. 2), it is clear that too much ie

ionization could and would be cured by reducing the “ .
amount of gas in the tube (raising the vacuum), other . —

things remaining constant (Langmuir, Rec., Vol. II, p.

& . 1243). Oe RoR :
~s. With the Ss cehiibae that a pure electronic discharge
would flow with asdefinite voltage and current (as in the

. Flemirig valve), and the further knowledge that the

_— amount of ionization at a higher voltage could be reduced

_ ‘by reducing the amount df gas present in the tube, was it
‘not within the skill of the calling, the necessity oa
_-Sarose, to conclude that a pure ‘discharge with-°
out objectionable ionizatiop effects could be secuted at
r ‘voltages {above the normal ionization voltages) by —

rivin, : the retition of the: gas to the point where. no |

“S

3 7 ae

: harmful canon of ionization under oe conditions of €:

operation took place? ae
Let us see what the man skilled in the art saat have

- done if he had been handed a DeForest tube, with the

a ee

‘request to eliminate its erratic characteristics ware at, :
the same time increasing its power output. FP figer :
Such'a person would have observed at once, upon op- _ G,
_erating the DeForest tube, that its erratic operation was
dug to ionization of the gas in the tube (Langmuir, Rec, §§
Vol. Ii, p. 1242; Arnold, Rec., Vol. I, p. 559). From his ogee

e work with the Fleming tube, he would know that joniza- ne

. tion is not necessary to permit a current to flow ina .
vacuum from a hot cathode to an anode. vor his knowl-

e edge of the electron theory, he would know that the flow a5
‘of current in both the Fleming and the DeForest tubes
is made up. of electrons, emitted from the hot cathode .

and passing to’ the anode’ under the attractive infl
of the voltage applied to the anode. - He would sheets ota
ve no hesitation in removing: the ionization,’ on the
of stopping the electron flow. Further; he would
oe that the amount of ionization, other conditions be- _
ing equal, depends upon the amount of gas present, and
that the amount of ionization can be reduced by reducing’ -
the gas content. His first thought would therefore have ®.
, been further to evacuate the tube and thus to reduce the
' ionization in the DeForest tube4o the point where e if.was ae
not harmful. - . .
He would then consider the effect on the power output
__ of the tube caused by reducing the amount of ionization.

_ The power.output is the product of the current flowing si

cope sheiprttinae Asami! ~
\ pileodbeaect anode.. . He would know that the current -
—— the DeForest tube, ordinarily, was in--
send Gerth wing In th ace tn)

: by reason of the presence of the positive ions in the tube

-. proving the. operation of the DeForest tube and also in- -
creasing its power output, he would know that he must
apply higher yoltages to the anode in order to draw more

v

rent at or above its former value— by the San Francisco glass-blower (Lamont by name), 6

= used by the Federal Telegraph Company in its com-

mercial ‘operations at voltages running up to 54 volts § a

- (Tuel, Rec., Vol. II, p. 1052). There is also testimony that
an amateur named Hewlett used similar tubes, evacuated . oe
by Lamont, at voltages: in excess tod 60 volts: (Hewlett, os

; - Ree., Vol. I, p. 1008).

Naturally. enough, no evidence: was avalinble as is the Sieg |

aes so-called “earmarks” or characteristics of the discharges _ - |

: in these Lamont ‘tubes. These workers were not hunting : is
for material.to put in patent applications. They knew ee
there was ee eneoeeys here. Lamont and bdo

oe however, testified in detail (Lamont; Rec,, Vol Il, p. 1027,
et seq.) as to the thoroughness of their evacuation, which

os :

24

followed in large part the procedure subsequently recom- -

ee mended by Langmuir (Lamont, Rec; Vol. If, pp.. 1029,

ii 1030). It:was undoubtedly proven (Tuel, Rec., Vol. II, p.
1053; Watkins, Rec., Vol. Il, p. 1055). that “the tubes. oper-

:' ated satisfactorily at the voltages mentioned. These

: voltages are not Ohly “materially. above ionization volt-
ages” but are considerably above the lower limit of 40

volts set by Langmuir for his invention in claim 26 of :

his patent. |
“It is clear from. the secavd ‘that since eens ‘tubes op-

erated. satisfactorily at these high voltages, they must. |
have operated without. harmfui ionization (Langmuir, ©
Rec., Vol. II, p. 1263; Hogan, Rec., Vol. I, p. 97, Vol. Il, .

pp. 1713, 1714). As. satisfactory operation is the only
- essential test of. the presence of the Langmuir invention
(Langmuir, Rec., Vol. II, Q200, particularly pp. 1239-1240),
. these tubes had the ‘discharge of the Langmuir tube. - Dr:

) Langmuir defined) a pure electron discharge, the presence

. of which respondent contends evidences a lange tube,
as ic forws Rec. Vol. IL, p-. 1350) :

“Of course, the word. pure is always a relative

term which denotes a comparison between one

thing and another. When I talk of pure electron”
3 discharge I have usually meant a discharge in which :
_ the effects of ionization do not materially influence __

the usefulness or characteristics of the device as

"+ Gt-is to be used. That is what I — we os .

mean by cmaee

Re Pe aoe ‘ + a 2.

“As I understand the eed pure it means. free

from harmful. ingredients or harmful effects and

ae | of course that necessarily implies that the very —

; gauss -usaaesb means harmful ‘for some ss

eo
é

ie
’ bs s .

25 ee

A ‘ é %

oe crs Sinise occurs in all enbies at volo
- materi ly above the ionizing voltage. So to some >
extent no electron discharge can be absolutely pure.
_ There will always be some ionization. So that by —
the word pure we necessarily mean free from ioni-_
zation to an extent that is such that the. ionization
bring about no ‘ul or deleterious ation.”

“DeForest in his 1912 tube; $ secured | a vacuum such that
the ionization present brought about no harmful or dele-

- terious action, and may, therefore, properly be said 80:
~ have arrived at the same oy se did Langmuir in the
alleged invention. of the patent. Se

It certainly did not amount to invention for. Ledgonie
subsequently to discover. and set down the “earmarks” Of
_ characteristics of that tube. This is a. -mere matter of =
_ scientific observation. | piss INE eee ee

aes

Arxold. 3
On November 1,. 1912, Arnold did exactly the hing that
~ DeForest had done earlier in the same year. He was
shown a DeForest audion that amplified weak telephone
_ currents beautifully at low voltages, and functioned at
those. low voltages, without harmful ionization - (Arnold, |.

: = Vol. I, pp. 855, 556, 567); but the currents were distorted 25) te
scribed the DeForest work in 1912. For the purpose of
this point we need only call attention to the fact that the

a precise tube-of the patent was ‘evacuated in such a way as
= Sopa electron: ——— to, be srg ubst

S alls hoes feels ssiitaiih cottnek: een ef-
>. fects from gas: Hf the facts are accepted, as they were by —
“the District Court, then there can be no question that the
re invention of the definition adopted by. the Circuit Court -
| st 1912 abe inten-

“ “It is solely a question of fact, and’ ae voles line to-our
ee ‘discussion on pages 22 to 25 of this brief, and to the =~

- discussion of the same facts in the opinion of the District
Court (Rec., Vol. Ill, pp. 1965, 1966). We are able to find
~ ___ but one conclusion on this issue of fact. The invention —
‘of the definition was present in the DeForest work in 1912 :

= and prior to Langmuir. ; :

= And the third worker, knowingly and d intentionally, 4 do-

_- the identical ane was o

pe oe : S32 Arncld.

_ “On pages 25 to 28 of this brief, we have attempted ‘to s
show that in November, 1912, Arnold,:too, completely de-
veloped the. invention of the definition. He produced eee

._. tube of the exact construction of the tube of the patent and =
a 2 - obtained, an electron discharge substantially above ioni-.
gation voltages. without objectionable effects of gas. _
Gee If-the facts of the existence of the tube and its operation
- a are accepted, then there remains no problem—except that.
: of date—for here, as in the DeForest use, the identity of -
7 the thing is complete. -Moreover, it was intentionally and
: isely created, and the ie eines of its omens were A

oa

sworn Sechadaurs wl steteniedi 3 in the literterencs. ) of
“ing in the Patent Office. However, the Arnoid work was

s subsequent to the August, 1912, conception daté, later ad-
SS * vanced: by Langmuir. It is, therefore, necessary to con-—
sider for a, moment Langmuir’s August, 1912, work, which —

charge, quite aside from its. practical ap lication to any |
perticular art. We have shown above that this principle, .

Dy ’ this type of discharge, was not new with Langfhuir. But
_ ° wholly apart from, this, it is inherently. unplatentitie, ”
mee. re tn Ne, es aes

.
“ee

As: L's : pe ee...
. ° Rage 2
¥ a } ? eae
é : t ee Ae &
. ° : ts

Si ehy ba

5. Langmuir’s chy pieetton eabbssiilia of the
principle of pure electron discharge was-to the De-*
Forest. tube. “This application was anticipated by
both DeForest and Arnold. Hence cleims directed =".

‘to this use are void. eis iY

If we accept the proposition that divans invention ae
uy in this case must be limita to the appligation of thie prin- |

_ ciple of pure electron discharge ‘to a particular practical

.- use, the only such applicatior by Langmuir was to. the _

three electrode DeForest. audion. But this application .
was not-evert conceived by him until March 21,,1913, Jong
after the same- practical use had been | made by both De-
:- Foregt and Arnold. (This invention is claimed only in -~
claims 10, 12, 18, 19; 21 and 22 of the patent.) &

It is true’ that respondent does contend to have devel:
‘oped, as coming within the alleged Langmuir invention,
the’ Coolidge X-ray tube, and the Kenotron high ‘voltage _

alfernating current rectifier, as well as the, high:vacuum

_” three electrode tube corresponding structurally: to the De- ©

Forest audion, _But we assert that ‘this contention ie

_ unfounded, aes
oe Coolidge X-ray tube is the developeannt: of Dr. Nae

) Coolidge, and respondent is estopped. to deny that it is ‘
-_.Coolidge’s. invention by having taken out the, Coolidge . -
_ patent thereon (Deft’s, Ex. 67, Rec., Vol. VI, p. 941).
_ "The Goolidge X-ray tube, as pointed out wbove (this
*. brief, p. 40), is a high voltage tube. . It is not disputed
that it is inherently a rectifier, and that the Kenotroft
___-reetifier is an outgrowth of the “Coolidge tube” (Rec. Vol: eae
ae 1m, pp. 1528, 1520).. The Kenotron rectifier is in fa a
. essentially a Coolidge tube arranged in the high voltage
_‘eireuit in such a way that the X-rays generated are of
ae —- a and do not get mee? the —

a
e

ee. a

$e . . : | eas 3
ee | 43 | ak

- (Coolidge, Rec., Vol. IH, pp. 1529, 1530).! There is nothing
’ jn-this record to indicate that Langmuir had anythi 7
do with its development, and from-the logic of the Five
ation; it is clear that he played no such part. .
The low voltage rectifiers, say, of the order of a few:
. hundred volts, in commercial use today, such as the Tun-
ae gf rectifier of respondent, are admittedly gaseous ‘tubes, , ”
-and-are in fact. merely structurally improved oesrage 8
valevs. It is admitted in "thigsrecord (Langmuir, Vol. Il,
pp. 1351, 1352) that. such tubes operate better witli gas,
“ and that they are outside of Langniuir’s alleged invention,
. This leaves us only the ‘high vacuum DeForest tube.
Langmuir testified that he fifst, saw a DeForest tube in Eri
y* February, 1913 (Rec., Vol, II, p. 1182), Shortly thereafter”
whe built several such tubes and experimented with them.
While there: is some contention by respondent that these fa
. tubes were high vacuum tubeg¢ operating with a pure.elec-
/ =. tpen discharge, we believe it is clear from the record that
_ this was not the case. The best evidence of this ig: to me
~ found jin ee. i s own notebook under: date of sspshorine

| _ 21, 1918 8:

“Now what I isha to do is to videos an aud Bias

don which will operate entirely and exclusively on:

the electron discharge. I shall attempt to get ee:
vacuum so good that ‘positive ions are present in —

BU) amounts.” Pleas ‘Ex. 131, P. in Interf.

7 0) aie ; . ;

eETPORRS A LA6

a ee “Dhis te a perfectly
Lae ~ only, possible invention here in issue, but it is, Patience
, a much too late to be-of any avail to Langmuir since this =
had been done in 1912 by both DeForest and Aaa a
, ind PP: 2 to : ta tases RE ae

fares t cs | | “4.
. a
It is for this reason that we hear so much in this record . §- >
e of Langmuir’s earlier expériments during August andNo- =
| vember, 1912. But it seems to us that Judge Morris’ has
properly characterized the earlier experiments, when hé,

‘said sc accurately in his dpinion (Rec. Vol. IIL, p, 196i) :

“Dangmuir made many experiments over a-long

\. period of time. Those. that were first made were,

~ however, for the purpose of discovering abstract
principles and not for the purpose of arriving at |
practical results. He made discoveries but he did

‘not immediately, or for soine time, perceive that
they had any practical use. Moreover, the discov-

es to ‘which his experiments led him, so far as

' we are here concerned, were those already made

by Lilienfeld’ and others, * * But the disclos-

‘ ures of the prior art reveal that Langmuir, great
* and ren@wned physicist that/he is justly conceded
to be, was, in this ins traveling, all usknowa
to him, over a field already well explored, ”

Ie We siibmit that not indy was Langmuir, in his earlier phi

| Pisiaibible traveling, ajl unknwn to him, over already EB:
} . ___well-explored fields, but, in his only practical application — Boe ti,
_.\ of the principle of pure eleogronic discharge as well,he =
ies sanenetely: aliticlpated by these other ersinthe ~ .§
oe os cannot, patent the principle and he is anticipated es
; is. only practical application: of that principle, evén,
it such a were not otherwise —: |

. ns

; a - Ny
| CONCLUSION. Lee
Misses tecieong, we contend that the decree of y .

; Solow should be reversed and the: Bil gf; Bee

7. Respectfully submitted, ah ee pO a

ad eae Ea ens Jon F. Neany, pee we

. “Reanay Hoover, | iets Caled sea
TaN «Of Counsel Pies ee care
Dae: Chemical Foundation; ag R tea ae

Bey ee URN - Radiological Society of North A

JAN’ 8

& alt a z ‘ "] nmsies taupni

“» , ) ; ae
cae ae .
«

IN THE

a _ SPE cc OF THE UNITED STATE

Ocroser TERM, 1930

No. 630 : |

DeFOREST RADIO COMPANY

A : . Petitioner
~ & v.

GENERAL ELECTRIC COMPANY
, : Respondent

OPINIONS OF. JUDGE. MORRIS AND
ae ‘JUDGE WOOLLEY te, Nid

Tuomas G. Haicur .
SAMUEL E, Darsy, JR. .
Counsel gd Petitioner

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PAGE

"The Opinion of Judge Morris (District Court of Dela-
3 ;
The Opinion of J udge Woolley (dissenting from pres-
[© ent majority decision of the Third Cirduit Court.
I of’ Appeals) pao a an ne wna aoer as 30° ”
‘ J . : | ; ‘ dj se e*
; , ps . eo : Pa
9 j Y are ¢
. ' a : “/ : + ’

ar

ha
i

iL : BUS: si tane

Dit mea if the tated st oe

FOR THE, DISTRICT OF. ‘DELAWARE, pap

es
Genta esas Conceany,. . ob ig Re
7 Pie hig i oe
o ., 7 anid 508, oe .
_Deonsst Ranio ‘Company, sis * mae,
by eee 56 Dente.
v ; oe :

" The Ogliion of Judge Manvia.* Bes
: ae ; (23 Fed. [2nd] 698) . ec eae
o These two: suits of General Fiectric Company agin
‘DeForest Radio Company were tried together. In the first
suit all the claims of patent No. 1,558,436, granted to Irv-2
_”- “ing Langmuir, assignor to the plaintiff, October. 20, 1925,
for “electrical discharge apparatus and pfocess of prepar- —
+ ing and using the same” upon an application filed October.

‘©’ 16, 1913,.and renewed March 14, 1916, are in issue, It is’.
ae known’ as the high vacuum (abe-patent. Infringement. is o .
- conceded -if the claims are valid. Validity is denied for _

__ want of inventio#ind novelty and because of prior knowl
Pes ‘¢fige and use, for double patenting and upon nes es

’.. gam increase in the number and velocity of tite electrons a

‘ passing from cathode to anode and consequently an in-.

’ crease in the number and effect of “ ollisions of electréns
with gas molecules. It follows, of course, that if the maxi- —

mum voltage at which a given tube will function %jthout

ionization is increased ionization will océur and the tube

fail to. function in the manfier specified in- the patent. .

Ae “Ionization,” by which is' meant the conversion of atoms

\ or molecules into ions, is explained by the “Electron The-
ory.” By this all atoms known to chemistry are deemed:
_to.be made up of a nucleus endowed with a permanent |

ys

"positive electrical charge aroutid which one-or more ele |
__- trons;-each of which has mass or weight‘and carries, or is, a
_ anatural unit of electricity, revolve at inconceivably | great.
speeds in, regular orbits in. somewhat the same manner
as that in which the planets of our solar system revolve’. — |
_ about the sun. According to this hypothesis the chief dif- .
: ference between the. chemical atoms lies ixj,the number =
s _ and arrangemerit of their electrons. ‘Under normal condi-_
- tions the electrons are maintained within their atoms and
eit ty Dn sean rons Ns mus

ss eabeeeicwierencbensilh heii’ “The posts
tively. charged nucleus predominates and ‘exhibits a unit
positive charge. In thermionic tubes. ions are created by
the impact upon the: gas atoms ‘or molecules of some of.
‘the myriads of electrons constituting the current flowing . -
from: the hot cathode to the cold anode—the Edison Ef- —
fect. See Westinghouse Elec. & Mfg.Co. v. DeForest Radio.
Tek. & Tel. Co., 21 Fed, (2d) 918. “To dislodge an electron
- rom its atom ‘the colliding’ eléctron must have sufficient
| momentum: The velocity required for this momentum: .»
ig given to. the electrons mainly by the pull or attractive
prt of the positively charged ‘anode. The strength ofthe
+” pull increases, other conditions being ‘stable, with the:
_ anode voltage. . For ‘the gases with which we here’ x
concerned 15 to % or 30 volts neers the’ naming volt |
_* ages. ° |
When substantial inablie of atoms or -gnolecuies are
being converted into to positive ions-by the-electron wreak
: he “ionization € effects” f forbidden by claim 26 occur. One’ whe
«+ effect of ionization is an increase in the current across’.
the tube over the value it would have ‘at the same voltage
7 in the particular tube were the vacuum sufficiently high’
to prevent iotiization. Such increase is due to two factsi>
ee First, the electrons, being riegative charges of electricity,’ a
tend in the absence of a countervailing force; violently” Ce
a to repel one another and ‘thus to diminish the number, © ree
-and so, ‘the value, of the current, Passing ‘to the: ‘anode.

ees sinaont farce" ‘to the cathode, the ene . . , ‘i % -
aha us - - P % 4 ee
* . Le 2 u vd ‘ . e 42 a 3
f% Tes apes 28 3 2 ‘ 22. an Pe an eae
4 $ ” . . Li

. Whe reason that the current does not increase beyond a
certain point dependent upon anode voltage. with the: in-
crease of the tertiperature of the cathode is that the elec-

trons, all being negatively charged, exert powerful repel-
ling forces on one another. ;When this force of repulsion
pene the pull or effect of the voltage on the anode,
anode is without power ‘to draw to itself a great

Gas ase electrons. The current-limiting effect of the

é field of the electrons on one another is known’as
the “space charge effect.” It is space charge which pro- .
the flat top of the temperature emission curve: in |
he foregoing graph. )
When the tem.perature of a cathode is. fixed and con-

vy, stant and the voltage is increased the limitation - ‘upon
ce the electrons limits the current. This is illustrated by.
he the following graph whereby it appears that the last few
| increases iu voltage make no increase in current—there
SR ee ere Ge Coe Oe ee

i 7 i . x a8 Wes v La]
S i : s Fe x *

4

iy, setae arate Setied rt
meahitiet atk ke ee

o PAD Site

‘he curve of thin graph, tether paren var togue

_ mic paper. appears, up to the point approaching satura:
; ope tion, as a straight line, discloses a relation existing be--
teen. current “and voltage. That relation: is’ or

ctype AR aSOR thuss ys =

“In most devices of simple fact tt Ss which,
embody. my invention, the discharge current pass-
ing through a given space with the cathode ‘as a

> sufficiently high temperature with respect to the
"+ voltages employed, : varies directly with the $/2
- » power [square root of the hal of the one
voltages.”

€ zi

: “4 to “D” of the curve on the current-voltage’ chart, in

which ‘the temperature is constant, is the space charge.
part or that in which the current is limited by anode volt-
age and follows the’ 3/2 power law. The flat top repre-
“sents the saturation part or that in whick the current is

Jimited’ by the cathode and its temperature. The cn

_-yerse is true in the first or current-temperature, chart in
ue which the. voltage is constant. In that the rising part is
. ,the’part limited by cathode temperature hile the flat

top is the part limited by space charge. dh 3
“Another charac riley

PIS AD

i nated ta the specifigation, is that" the device is “

is legs than thet réquired for a given voltage in a given
tube it may be increased up to the pressure immediately
; below that. at which substantial ienization would occur
' at the given voltage without affecting the discharge. The
| discharge, however, is ih no sense indepéndent of the
pressure if the maximum voltage at which a given tube
will function without ionization is increased, for ioniza-
tion woulil instantly occur and the tube fail to function in
the manner specified in the patent. In such instance a
degrease in pressure simultanepusly with the increase in
voltage would be necessary to avoid ionization. In its.
ick begets tale kc soon, af atacns, 02 aD et 8
_- sionigation is to be avoided above ionization voltages co
ry lisions must be avoided between electrons and gas mole- |
cules and that the number of collisions in a given tube,
upon the relative. density of the two,
" \greabed, the preavure being stable, by en increase
number of eléctrons pulled to-the anode Sy the increased |
_, voltage.
Bee oe, These scientiilc explanations, arising mainly out of the-
© ¢lectron theory, of the functioning of the high vacuum.
tube change not at! all the fact that it differs structurally

ye

from the, Fleming alve and DeForest audion only in the —

_ +, fitineiples in accordance with whieh the device functions

11

disclosure of its solution in’ his ‘patent, siocaibectl ‘he
~ would be entitled to a patent for his disclosed:method
and device as a. rewdrd quite apart from his knowledge -

or lack of it with respect to scientific principles or Jaws‘5-/

of ph explaining the functioning brought ahout by ae .

the vacuum. Moreover, independently: of whether
or not invention was necessary to create a vacuum of the
_ tequired degree, Langmuir would be entitled, I take it,

to a patent for his device regardless of his ability or ins .

ability to explain its functiéning in,principles, lof physics,
if he was the first to appreciate that a high vacunm:main-'

“ tdinable during operation in a Fleming or DeForest struc-

- tufe, for example, would constitute means whereby the

- pesults produced by the high vacuum tube could. be ac

~.. complished, ided, of course, he reduced to practice:
- with reasonable Gas the device of his mind. .

- . Upon the question whether the claims for the p

of. making the high vacuum tube or those for the tube.
itself, which because of its stability, reproducibility and.
» power has. made possible radio broadcasting, mocern
radio reception and long - distance . telephony, involve
novelty and inventiofi the parties diffef widely. The
" plaintiff adsetts, witkp apparent confidence, that the*patent
is for invention of a high order—equal to or greater than
that of DeForest for the three.electrode tube... The de-
fendant, with equal confidence, finds not only all that
- Langmuir-did but all thatTie discloses with tespect to the

spread upon the records of the prior art. Site the
Spee reine set Sn Veloce iy oa ed

’

ne

a ont 32, directed to sales process: of eeihingt tubes having a ay

2

: vacuum of the required degree are valid. Claim 31 is:

“In the process of producing a hot ‘cathtile dua corrent varies in sopotdence with thethies®!
Ss half power ofthe voltage. This is conclusive evidence, as’
under tand it, that in a high vacuum the currents under '
, stable and reproducible and, since high oltages.
Noyed, that high power levels” may” ‘be attained
) joyment of a high vacuum. “Space chadge’ .
I zai e, but a rediscovery. ae eee,

Be ao icas aN Ml, it is: not exclusively hins:saloboecses
| apd emi from the exide cathode which, as was often —

tH ed, determined the discharge in high vacua,
eg but that the discharge depends essentially on a sec-
- ond factor. T‘pointed out more specifically in my
, second paper this view, that in consequence of the
'\. absence of the last traces of gas the. nimber ©
Se e density) of the negative electrons supply- _
current becomes great in comparison with
the. number of gas molecules per unit volume, so ,
ea therefore the tendency exists for ft formation
-of the greatest possible negative space charge—
which opposes the current transport by the hegative
: : “The higher the vacuum, the greater the curren?
‘ih rein ne seers. prowainent thie, new deine of die

; _ charge becomes * het me
“ a i eaacabaie ‘ei isan pebioncatty
independent of the pressure when the pressure is below .
a certain value was discovered by Langmuir after Lilien-
fold hed made the dieclosate th his article of 1010, where.

By be sald’ '

wee from a certain maximum value of the

os ee ie
; peer ere by

}

A

ew of hn peatn ema ome ha the oly

periments tint tivet they-constitate évidence of invention

but is rather that Langmuir was’ pot abreast of ‘the de- Ve 9

_'velopments Soweto Aas
periments. ae RTS AN

Other evidence bearing upon the istue of ‘invent
the great utility of the high vacuum tube. | ‘Bét\in 1912
the radio art was young Flemilig:did not need tor his
purposes, as Langmuir testified, a higher vaciun? than
that employed by him. The DeForest audién ‘wos not in
wide use. Langmuir did not see one until 1913. Under
such circumstances it would be difficult to
high vacuum tube satisfied a long felt wan
results long sought or that the evidence Pally wee
indicative of anything more than groper natural de- -
velopment of the art. Moreover, the fact that:falls but .
little short of a. demonstration that the employment of the a
known pure electron discharge above ionization voltages a
in tubes of the DeForest type was but the availment of © :
those skilled in the art of the store of knowledge that had :

been accumulated and lay ready at hand’ is that y i
Arnold, who had had long experience with electrical dis-
charges in high vacuum, was shown’ @ DeForest audion ce
for the first time on November 1, 1912, and saw it in
operation he.immediately realized 4 and | in effect, that :
by increasing the vacuum the would, be suffi- ,
ciently stable and at ddequate. fat toale be poutine
tube to be employed as a relay device in trans-continental .

- telephony, While not unmindfal that invention may . _
sometimes be the result of /an instantaneous happy :
thought, yet the state of the is strongly confirmative |
of Arnold’s own view at the time that the improvement |
by hint was obvious to one skilled in the art.

| The act of Arnold turn the seale #0 overwhelmingly that 8
a Se ee

The patent is Maewian invalid, in. my opinion, iodine :
of a knowledge and use by DeForest. The specifica-—

“tion states: “Ordinarily the gas ionization in the. audion 9
begins to be important somewhere between 20 and 30 —

~ volts.” That, as I understand it, means that at this voltage
‘ the current becomes affected by . positive iohization and

the tube ceases to function ‘a: « pure electron discharge

~~ device. . Yet, prior to August, 1912, the Federal Telegraph

Company of California, by’ which DeForest was then em-
“ployed, used a B battery of 36 cells, another of 45 cells,

or 54 and 6744 volts respectively, with the audion. ;Witen -
‘used as an amplifier the amplification increases, ~with the
se voltage. The testimony of Langmuir, XQs761-767, as-I
understand. it, makes it clear that this voltage was em-’
ployed for amplifying purposes and so with a discharge
ae — substantially unaffected by ionization. That De-
ee Forest, though not skilled in the art of evacuating his de- ce
. vice, knew. the effect thereon of an increased vacuum,
though he was very probably unaware of the extent to

which it could be carried, is disclosed by his letters of
\ July 26, 1912, and August 14, 1912, to the McCandless
Company, the manufacturer of audions for thé Federal
‘, Telegraph Compaay. ‘The first letter is: ie 3
; 4. “Out of the last lot of 24 audion buibs -which

+ pebtemnnntaatared for to there ere only 4 that come

~ red : * : 2 3 @ >N
7: ° as . Fe = " ‘ + u eee LY . upon the issue of priority. Robinson on Patents, Sec. 79, -

5 pie. 121. In November Langmuir made other experiments |

-” but these he concedes were for the purpose of ascertain-

- ing the accuracy and existence of certain laws of physics.

‘. ] find no evidence. that he then thought of applying the —
scientific principles in which he was interested to-any

- practical result in the useful arts. Consequently, there is. -
* no satisfactory evidence that Langmuir had a conception -

- of the device of the ‘patent before the end of November. |
. “It-is not while the creative energies are at work shaping §
«and sharpening the idea of means that the conception of
’ the invention becomes. perfect. It is when these energies
have ceased to act; when the idea stands before the mental =~
__* vision of the inventor as clearly asa concrete invention =
before | the eyes of an observer, that the conception is
comple and the work of reduction is ready to begin.” ae

Rok nsdn on Patents, Sec. 379. Tested by this rule even _

ES es

ale athedy and achat on the electron dia --
shall attempt to get the vacuum so good that positive.
jons are present in negligible. amounts.” It is not neces-
sary. to inquire when ‘the conception became complete

and his idea reduced to practice for Arnold had had the —
conception long before and had gree —_->
‘reduce it to practice. ~

The bill of complaint in this case ‘must be dismissed.

' lee : nee “Hoon M. Mons, J
Jaruary 3, 1928. a et , Tags

_ The Opinion a Woolley.
aa ae ae
UNITED > STATES CIRCUIT ‘COURT OF APPEALS, -

‘FOR THE ‘THIRD. CIRCUIT, © :

GENERAL ELectaic CoMPANy, ~

eres: Appellant, | \arch Panis

DeForest Rapio Company, es ee Le
; _ Appellee.

Woo Cireuit Judge, diencating:

“Tam: constrained to dissent from the judgment of the

> court: holding the Langmuir patent ‘No. 1,558,436 valid. .
Ss have the same trouble that other tribunals have aPyy
- throughout the twelve years of the patent prosecution ©
and five: years of the patent’s life in finding precisely
hat Langmuir. invented. My trouble, like that of others, .

has been increased by the difficulty which attorneys for —
pater i had in defining the invention and by the

»

ee

*

. The siet-sanale two related arts—is that of wire ong

‘chaeis telephony, the latter: commonly called radio. ©
The invention relates. generally to. an electron discharge
device comprising the familiar vacuum tube in: which
. . the customar'y electric current is carried by negative
charges called electrons from the cathode to the anode, »
gometiines. associated with a grid, and relates particu-
‘larly to a vacuum space so free from gases as to avoid
ionization. If the parts and principles of the mechanical —
construction were new and the gas evacuation’ old, there
might be invention; and also if the structure and its prin-
ciples were old and the gas evacuation—high vacuum—
were new, still: there might be invention. But the essen--
tial parts. and principles’ of the mechanism, comprising —
a tube, cathode, anode and grid, were old, and high
vacuutn.in the tube also was’ old. So the inventor was_
_ forced.to admit the presence of these’ old elements, yet,
still insisting he had created something new, he was”
compelled. to avoid the common art terms applicable
to these elements and particularly that. of “high vacuum”
in disclosing his invention and use technical terms which,
as I understand them, mean the same old things. - With —
this necessarily general preface to a highly: complicated —
situation arising out.of a difficult ~~ I come #40 the mati
ters. in hand. cae
In an effort to find what iataganie teveuted i wines
‘to begin at the beginning. I shall therefore turn to his:
application for a patent, for in that instrument must -

appear the substance of the invention as the basis f et F
ale —— amendments and for’ the _— as _ even"

i pallGeh dd te dnlectel Howat a Sateen 4 we

cae in chet tat es Sa PP

ugh the Patent Office is dreary reading yet, in this

“wan far: from: ‘certain. what he had invented. Naturally
> Lchesitate to say this: about Irving Langmuir, a great —
ae _ physicist, yet, saying it with entire respect, 1am: con-
_. -vineed that the history of the application establishes that
-. factand therefore is pertinent. tothe ‘ever "present in:
quiry: What did Langmuir invent?» ! =
| {Fhe patent issued on October 20, 1925. ‘The dietetic
ie tion was filed on. October 16, 1913; renewed March 14,
1916... These are critical dates. The original’ application’
contained five claims; two for'process:of removing ioni-)
gable gas from vacuum electron discharge devices, that:
7 Maclealaln words, tewcbtaiting 9 Ulf variienyent trey
. for methods of preparing such devices, and no claims
for discharge devices themselves. The specification con-:
- formed:to these claims, referred to the. art, stated the
_. problem, disclosed) construction adapted to the Operative: be
- principle of. such tubes and showed how they can be
' “evacuated” of gases by heating the glass walls, heating. ee
e and. bombarding the metal parts thereby expelling oc-
oe cluded gases, and drawing off both free gases and ex-'
Paid denne by naliablo nvnconting meres for engages:
ESS a €aede molécular pump.” Pe EE eee

et lows: or 1918; eight in 1914; one in 1915; ‘ve in 1016: ae
is u7jthiee in 1919 and abe dertin - Been’ = : ney

were fled ia additions enna ane
if made as follows: four in’ 1913;
Kg fifteen in 1914; twenty: in 1916; five in 1917; nine in'd919;
five in 1921 and forty-two in’ 1925, the -year of the patent.
. Analyzing these: amendments, it appears that the’ five’
original claims (which ‘were for process and method)
were at different ‘times wholly cancelled. Late in’ the
year 1913 Langmuir first madé:claim to invention of a
structure or Wevice, that is, fo inyention of a tdbe. “This
he did by four claims. The first was. amended four times’
and cancelled ini 1925. The second also was amended
four times and cancelled in 1925. The third wap amended
four ties and was not cancelled. ‘The fourth was’
amended once and: cancelled in 1925, Of the thirty-two —
dims allowed in the ‘issued patent, four are\for method

_ and process, being amplifications of the original method © ey

and process claims cancelled; twenty-eight are fora —

_- > device. Of chese device claims one was filed by amend-

ment in: 1913; one.in 1917; nine in’1919; three’in 1921'
" and fourteen in 1926, the year the patent issued. Beat

_,. ing on the question ‘whether Langmuir knew and diss
eos dosed in: 1913, or indeed in succeeding years, w! what he aed

had invented, it is significant to note that during twelve’
_' years, and mainly in the latter part of that period when

? a few had grown and reached a high stature, he re" ba

- wrote, by six ven “amendments, the major part of his’ oe
sto menine ee ae a ee rome |

ie in he mater at But deve
certain. devices of: the the prior art of which two

wii Ath es3

Toone eg
Amvantcen,:hepegiet into a very feeble art a

; ys
35 fe
AY

as ar amplifying telephone relay, thus making possible

the first transmission of vocal words from coast to coast
by wire. In 1917 the DeForest Radio Telephone Com-
pany, assignee of the DeForest patent, granted (with cer~ —
tain rights reserved) a license to. the Western Electric
- Company to mmke, use and sell the invention for cer+
tain purposes with the right to grant sub-licenses. In
. 1920 the General Electric Company, the plaintiff in this
“quit and: the assignee of the Langmuir patent in suit,
acquired through mesne conveyances a sub-license to
make, use and sell the DeForest audion, DeForest Radio
T.-& T. Co. v. Radio Corporation of America, :2) Fed.
(2d) 598, 599, 600, which (probably with a

rowing Seaplane seat pe =
2 ee nee a

” twelve’ years of ‘travail. in the Patent: Office; issued to
Langmuir, assignor to the General Electric Company; for
"an elediron discharge tube including the essential parts
and now universally accepted principles of the Fleming- -
_ DeForest tube.” The Langmuir patent now completely
» overs the field previously occupied by the audion, of the
% a

fh eheiclnhineidinandcinin: mcenatbiieetcaa
the best electrical result—and in the fact that, as I read
the record, ihese ‘three elements, separately and it com- sat
bination, operate on the same principle in which they =
operated in the art. Describing their iain > the
art then knew it. Laiigmuir said : : 5

. “The passage of an electric current across. a ‘tube :
& ordinerily involves “the movement of negative, ~
' charges called electrons which; under the influence.
of the impressed voltage, pass from the cathode
: to the anode through the vacuous space. - If these
‘electrons. when moving above a coktatin velocity
collide with gas molecules they tend to ionize the
. molecules, splitting them up- info electrons and
“larger and more slowly moving ions. Under these
circumstances the phenomena of conduction across
the tubes are ‘the result of the action and inter-
action of electrons and the ions;\* * : The.
cathode under these conditions is-disintegrated; .
*..* %, which causes its. rapid destruction. * *.*
The bombardment of the cafhode by positive ions
- ‘also causes heating of the cathode. The ionization
of gases at low pressures by collision -with
_ trons occurs at definitely determinable vol
these: voltages being known as the’:
"* * ™. {It should, for later use, be/ noted
that Langmuir said nothing about Es
| posed medium for conducting electrons from
ating: has: to, the other.) . :
ae “If for a given cathode seniperdiu the voliage: 5 eee
3 = motte nak ees -
op liberated atthe cathode to be drawn away, then * : site
east Sage neapaporpamitaerge pom iat ee

ain enh the carvet cab

a 37

#.

"He more ay designated merely a saturation oo
_If for a given cathode temperature the voltage is.

3 ~ not high ehough to cause-all of the electrons which —
--are emitted or liberated at the cathode tobe drawn — -
| * . @way, the. operation occurs in a range below the

saturation range. Operation in this range esd se
bce of as-operation below saturation: °

*

" deadinl Evite elbedsten dothittinie it inhedinlall
saturation Langmuir by claim 2, which has been treated

i GHEE Ree SEE Se ae ee

as tion is: :

eo . “A discharge. tube having a. oauiadla adapted to.
emit électrons and an anode adapted to receive
said emitted electrons, the tube walls being fash- -
parte shaped to permit the direct. passage of.
ul proportion of said electrons.from cathode
ode, the gas content or residue of said tube ~ —
ap age i cages ager gy age te gern
a Such that the tube is capable of being so operated
zs ‘in a range; below saturation and materially above
°°" jonization voltages that the space current is gov-
erned or limited by the electric field of said elec-
trons substantially unaffected by. pane joniza-

oon"
s

elie ue hsentt hij ‘cinigly dines “tags Wallan we Se
a tube properiy fashioned and shaped by skilled 2
and highly (thoroughly), evacuated of. gases—free and. ———
| aaeret range Oaneecth2 with a, two, electren. gremy -—
_ or with a group of two electrons, and # grid produce these’
+ Tesults; both groups, then and now, being in common
as oe cae nota grants mt pails Sos ae
ot -
os yn, high vacuum Ngee sana shoes a ook
| Gey aa bye nae en © gh acum

tube means a non-gaseous tube. . If the language of ‘the
_dlaims means high vacuum, it is prior art, for the art
was entirely familiar with the fact and effect:of sucha
' ‘vacuum; and if prier art, Langmuir invented nothing. Toe
“When the patent came into litigation in this case in.
the District Court of-the United States for the District.
of Delaware the learned trial judge, having trouble with...
the claims, endeavored to get from the plaintiff a defi-
nition of the- invention, asking time and again, as. did
this couri on 2ppeal: If not high vacuum, what is the
invention? An answer to this question seemingly had
_ its difficulties. The plaintiff, of course, could not say that
the invention was high vacuum alone, or high vacuum
in combination with Fleming and DeForest alone,
for that would be ap admission of old and would
' imstantly avoid the patent. It was f to admit that’)
the Langmuir device included all these old @lements but
claimed it included “something else.” So, eventually, in
- . order to show this something ¢else—something nev--it
produced, under the insistence of the trial-court, this care-
*. fully. constructed definition of Langmuir’s invention, on
: which the case was tried below and on which it was first
argued-and deded in: this court on appeal: Be
“The Langmuir invention is a coordination of oe
= __ elements having a-new functional relationmhetween
| SS ee Feoult foals Se

ssa’.
sh ¢

Phi kc ance piper l y
& Gece ponigiaths AudprapesmiMnti gr y-S ha

NS FEAT Pe >
AM BP - i
is £47 a ere" REA Gs ote
Phe fe an Py eeu e Coit
0 EA BRT e : R

O9 PA
Py
‘ rye

shat; Uurining;'sooubd beni toad pate alien! : Beers ©
ever, as it was intended to describe the invention more —
_ ‘early and moré definitely than Langmuir had dieconed
it in the patent claims I shall take it as it is written and
try to find what it means. I discern in its generalization =
_. three factors: (1) gas pressure in the tube; (2) “shape, -
size and space relation or geometry of the parts ‘of: the ss
tube”; and (3) the: relation of one to ‘the other.) = :
The first factor of gas pressure, or, more ‘properly, the
lack of it, if it means anything, must mean a minimum
of gas. This in turn means high vacuum. If it does not
. mean high vacuum there is no new vacuum factor ‘of
invention in the device, for low. vacuum ‘yas old and.
that isan end to the case. If-it does mean high vacuum
‘then again it is not new, for high vacua, their uses and
effect and how to produce them, were —_ meetin: ‘end:
practiced in the art. . |
Phe second factor, or ‘ “geometry,” of the physical Sine?
‘eleihents is not, so far as the claims reveal, involved in
the invention. The physical elements themselves: were‘
old, This the plaintiff admits. Though differing in shape -
_ ffom some-others, they are not claimed to be inventively —
wOvel in themselves, Indeed, each claim describes the — a
: ' iivention not so muclrby its parts as by its characteristics ~
of operation and results—tharacteristics inherent in any
@lectron discharge tube possessing a high vacuum. Nor
‘was this an inadvertence for when the Examiner, on
: 0 ao ean diab eer ben
said: sali ih ee ——

=

. Bebe 3 applicant's device is an ‘jeeeiveeil over

-... the ‘reference he should define -the differen: = by

structural: limitations,” the ‘applicant he ges. comieie

_ replied by saying:

= “The ‘structural limitations? in this case ‘are 1
" be —— in the ee bl vacuum.” ~~

ee

,
OD ERO

. So, thus far, the invention, with old parts and a high —

vacuum, gets back to: the: question whether there was

ee invention in the “difference” between low vacuum and

ae high peconny.t difference existing in 1 and known to the ae e
; The. third i the oidathend of dans rire cin of
‘gas pressure and physical parts, appears. nowhere in the.

claim unless it be implicit in the words “the gas content

or residue of said tube and the relation of the parts of es

the tube being such” as to’produce a certain result. (Gas

_. pressure is scarcely a part of a tube.).. If it isso implied; ©

- Langmuir cannot claim*invention by implication. :The Se

claim therefore is void for inadequate disclosure. If it

is not so implied, there is no claim for thé third factor. ;

=o _ Whether I am right or wrong in this analysis of the |

plaintiff's statement of Langmuir’s invention or in.my =

_ disposition.of its. elements is not importani for the validity ae

of the patent depends not on the plaintiff's. conception es

se and efinifios of the invention. but on the claims of mes =

pene ; peers

ro aa 5 nang hack to the claims of the Laiageaelt vanes ae

= to find. -Langmuir’s invention. But before doing thatol. eS.

-arrested by. still anotHer entirely néw definition of =

uir’s invention, this time made by the court in its’ —

pines (id net sont san: eet ene :

___ tube ‘is evidenced by its earnest and repeated

‘he tentelioni bat as the invention wo defined was old *
‘cannot avvee to hold a patent for it valid. ees
“It now appears, and I say this with entire respect, that

in interpreting “and sustaining ‘the patent broadly for . =

Tapas tube the court has given the plaintiff more
than it ever dared to claim. © ‘A high vacuum or non-
| gaseous tube being ‘old, the plaintiff knew that an ad- .
‘mission that the invention was a non-gaseous tube and
nothing else would defeat the patent. Langmuir also
"must have known that a non-gaseous tube was old for’
otherwise, if he had believed he was the first to concdive
and make one, he could, and doubtless would, have —

. daimed it in a half dozen words: “A non-gaseous dis- =
charge tube,” or “an electrica] discharge device with a

high vacuum tube,” whereas in his original application _
for a patent he made’no claim for a tube of that kind -
or, indeed, for a tube of any kind, the inevitable inference
being that at that time he thought all he had invented”
was a new method or process of gas evacuation, that is;
anew way-to produce an old thing. But that the plain-

‘tiff realized the necessity of claiming for the invention
something more than a high vacuum tube or non-gaseous af

a that Langmuir’s invention, while. including a non-ga! ee

tube—high vacuum—admittedly old, included “

else,” that something else being. disclosed by the re

- | mainder of the long claims and interpreted in its quoted oe
-. definition. The plaintiff nowhere and at no time has
--. claimed that ‘Langmuir’ invented ‘a nor-gaseous tube’

: oe Seaoan Aad ~— so, ‘for it well knew ssa while not : a _ |

Wein a AS

the artsin 1943 would effect, and that was.substantially
ee __ Above the ionization point, which is the crux of this case ;
, Returning to the’ patent claims and using claim 2 for :
| eleacidilant: & Allee Md Shininnestind tacaecslecliog i"
discharge tub’: which is capable of: being operated below soe
‘saturation and above ionization voltages. Langmuir called’
this a “pure electron discharge device”—“pure” because ©
unaffected by. gas. ionization which . either eee:
- - -gbsent:or negligible. 5S |
> .. Electricity is an elusive subject. Saccitess I shall, fon
the immediate purpose, restate in —— ve, if I can,
_-the theory. of ionization. — :
a fonization is an. effect iened by passing an Sleabdla
=. aisha Givenig hs liek outdid -reiapiiand,-dni x Sntteanin:tols
_ whien it has not been thoroughly evacuated. The myriads |
. of electrons, when: passing from cathode to anode above.
*. “a certain velocity, collide with and break up the mole- -
: cules of gas present and charge the resultant broken parts. :
~ or ions with positive charges of electricity. Thus elec-
tric reaction, is inevitable. The ions (with theit positive ;
charges of electricity) fight against the electrons (with -_
- their negative charges) in the normal flow of the latter =
- from cathode to anode resulting, at high voltages, in a :
en Oe nstion et bed orton a S88
‘to be avoided. The central point of. this. statement: is
nization “occurs at certain voltages in an electron

> ™ * vi! 2 5
aie ona Renin tin eaten oes eee ake
» é ¥ 7
o- eas

on the electric discharge itself; and from err
ee t-cathode by ‘the héat of an électric current
© ait old; and after this; that both, the expelled gas and
= "free gas should be pumped out of the tube during the »
-. heating process (old) by “a suitable evacuating means — :
(eld) for example, a Gaéde molecular. pemee! then anew
German: invention.
: - Thil the: capital Sdaheniidet if ast: thi nets tone
‘ment, of Langmuir’s claimed invention, is as nearly as .
possible to: withdraw from the tube all gas, free and —
— in other words, to obtain as high a vacuum _
le. “When that is done ionization is avoidedand =
a opie: electron discharge — Was grantee ishend Se
Tilapia. was met in the Patent Office with the Law
Extininer s statement that: |

- "Tt is apparent after a review of the record that
| ‘there is no single element which is broadly novel
in the assemblage of elements making up an elec-
tron discharge device of the character defined in’,
the issue. An evacuated tube having therein oS
. incandescent electron emitting: cathode and an ©
, anode was old prior to the filing of Largmutr’s ap- —
_ plication, and methods of attaining high vacua, vacua,
_ gufficient to give a relatively pure electron dis-
charge in a properly designed tube were also well
a Fae — and available to — skilled in the eek ay -

ie | Was-that. statement. of the Law. Examines piss he “ a |
SS Ades. it was..Just here occurs my.sharpest. departure. —— =
from the: opinion of the court which is based, as Ihave
a Ship c0-gbas: Lam consimningt: to believe is an &§
were gaseous 0 and that Langmuir invention

~~ first to. conceive it and reduce it to: practice. ‘That
the. Examiner was right in saying that high vacua in.
” electron discharge tubes were old before Langmuir and
that a pure electron. discharge—the inevitable result in,
@ high vaccum non-gaseous tube and an impossible re-
‘sult in a gaseous low, ‘vacuum tube—also wasrold:is: sus-
| tained by many prior publications and “patents: The.

: “

(ALMA tlic tlanty erent

same prior publications and patents contradict, 1 think,

the court's holding that Langmuir was first to male and —
‘invent a non-gaseous tube. They. are so numerous that

it would not be permissible to quote“them in an opinion.

[shall therefore do nothing more than citeafewofthem,
“ranging from 1881 to 1912, found in the record and to

be used hy anyone who: should desire teacne rane eR us

‘statement or who may be charged with the- duty of:.re-
_., trying the issue. They are: ‘Lilienfeld, Fleming, Doase, ee
VorBaeyer, Bissel & Hagen, Malignani, Edison, Dwyer,

Duncan, Leonard, Soddy, Thatcher, Ghild; illumined by _ :

the testimony of Waterman: and Chaffee.

dui teeed velereicen I athens: ‘and on them I would hold #

"the patent invalid for want of invention. °
Passing from the erature and patents of the prior

“ Lap cgualbbmog wimanty Sapir

temo fli hie 7s
‘oscillation detector or audion then normally having @

gas content. It was,a “gassy” tube. But desiring to use

oe not as a detector but as an amplifier, as later it was
_. glmost. universally used and indeed’ as made, for that

: use by the plaintiff itself under license and: by the West-
Electric & Manufacturing : -Company, its ‘sub-

“5 - ficensee, he had the audion exhausted of gas as far as

it was possible in that day. That is, he sought and ob-
tained as high a vacuum in-the tube as existing means

would produce. When the vacua were too low and the ~

amplications poor he gomplained to the manufacturer
and had the tubes re-exhausted. During that period
~ (1910, 1911-and 1912) the Federal Telegraph ‘Company
used DeForest’s amplifying audion at 54-and 6714 volts.
This was possible ouly because he had exhausted the tubes |
of gas, which otherwise would produce ionization at 20
~ to 30 volts, and thereby heightened the vacuum above -
that danger. line. This was “high vacut vacuum” within the

| definition of vacuum ebove-the point of ionization and

: was therefore high. vacuum within: the sense of those —
| words as used in ‘this case. It was not.so high as that
later attained by more ‘modern means, for’ instance the

“Gaede molecular pump, which had just come’ into the

ee art at. the time of the patent: application, referred to by
noe Langmuir in his application and. invented not. by him

but by Gaede. I agree with the court that DeForestidid
BE _not then understand the change in operative principle
_- for-in-later years ‘he expressed views contrary to those’

- addvanced’both.before and after that time. “But DeForest
ee ce
tion from detectors to.amplifiers. Whether he knew the -
winciple of the change is of no consequence. ‘The fact
h aves And:he did it before Langmuir. And by

y ‘; rely “i phy 4% my 6

’
,

inventor, On this point, to avoid repetition, I refer and: 2
' subseribe to the opinion of Judge Morris holding on évi-
dence substantially greater than the eviderice in the inter
. ference. proceeding that, if invention, Arnold. was fhe fret

: * and original inventor, © ;

‘And so this court, one judge deciding attrnned, the .

decree_.of the District Court, on its, opinion, holding the \e
Langmuir patent invalid. Ton \
In due course the plaintifr fled a petition for, rehearing
based on this proposition; ~~ , se)

~“In-simple language, ‘Langmuir’s invention con- — -
“ited in taking out the conductor (gas) which was .
- in the Fleming valve and the DeForest audion and
_. putting nothing in, its place; he dispensed with’
‘-’ what was regarded ds an essentialeelement in the ~ -
_. , operation of the tube (gas). and by doing sc made
oe . tube which worked infinitely better,”

The petition was allowed and the reargumenit was based
on this entirely new statement of Langmuir’s invention
'. . miadé for the first time four. years after suit was Yrought, :
e five years after the patent was issued and seventeen years
_ after. the: me tion was filed. Of course if the*facts =
asserted were f established by the. evidence there - e o
would be no bt about what Langmuir did and’no
-_- doubt that it was invention and, cee res no doubt he? ae
was entitled fo a patent. = |
‘The plaintiff rests its proposition upon its ‘own state- sina
. ‘ment'that “Both Fleming and DeForest depended upon
Sas the: conductivity of gas as. ‘the fundamental basis of the: Bar Me

ere A f 5 ? ® os . f
: > Y Y re “49° a aN
ls: Wee u: ‘ *

* ‘

gor the theory of electron Yhovement in electron discharge

ee’ "tubes, some of whom based it on conduction by’ rarified |

gases or air, some on conduction -by ionized gases, ‘and
_ some not on cdnduction at all but-on free passage “of _
** ‘electrons through space in a high vacuum, that is, in the

absence of gas of air. And in’ addition. the plaintiffto

4h support its statement poirits to an adverse criticism by
|, DeForest in-2915 of Langmuir’s “extremely. high vacuum”
“quoted in the. court’s opinion. The plaintiff ignored all

} the testimony on the subjects of prior art high vacua and a
7 pute electron discharge, which means absence of gas as -
+ @ conductor, their advantages and uses, » which I have

prev iously alluded with citations. 25
Bin i course, if the belief and practice of the. art were’
* that gas conducts, the. electrons, that gas therefore is

> tea necessary to. conduction, and Langmuir. disgovered it to’ |

_ be wrong, that in fact-gas_is' an enemy to conduction,

ie and. omitted gas as an élement in his tube yet obtained

_ 2 the same of a better result, ‘clearly he made an inven-

* tion, . These are the things which new the plaintiff and 3

, also the court say he did. But Lenugmuir did not,say _

2 Cet If that was his invention he should five disclosed _ ae

_ itin his claims for we are called upon to judge the patent

i on’Langmuir’s disclosures, not on the plaintiff's: defini-
a tions of his inyention. To be ‘sure, he did refér in his
‘ ‘specification to. several tubes—the Geisler tubc and the

aoe ‘ Roentgen X-ray tube—“whose operation depends upon

~oocarneigsiellmied gee Beret

-on gas content. Buf he nowhere val tt his
ia a ag sc

| ef (gas ionization.” ‘He might, more or less correctly, have ae
"added to. the list detectors with gas content, thenand —

a ee me
t

a

| . in part based its judgment. = = *.

~~

4 9%

Pap ‘ . NS se
ee ; \

>. on ars Soh S at e.

_ to reproduce sounds. fone of the purposes a the De- Re

Forest audion and the thing we are dealing with in this: +
case) depended én low. vacuum or that the art regarded,
as an essential element of such a- device,.gas as a-con-

ductor, for 1e probably knew the contrary was ‘rue. To
. show that tl plaintiff’s last definition of Langmuir’s fine ae
' vention is without founda on in the évidence I refer to,”
but shail not. repeat, what have Said about: prior. knowl- ;
_edge and prior use of high vacuum tubes. I shall’ en-
deavor, very briefly, to show that Langmuir by his own ~
words contradicts the plai.atif’s last definition of his in. oA

- yention: and .refutes the theory on which the court has

6

In Larigmuir’s original specification he stated that when ;

there was: enough gas in the tube to become ionized by

the discharge of. electrons “The positive ions -(gas mole.

‘- cules) fake part in the conduction of cirrent, giving at

first erratic. readings on measuring instruments connected *

tinuing, he said, that the audion, the DeForest. tube, was,

__a deyice that took advantage of that ‘phenomenon. . “But

% Pak ot
an
'. >) Se
. ’ J Se

: he cancelled the quoted statement before the patcnt issued.
_ At the trial he was examined with: respect to that states
ment in, his patent. application and was asked whether

the sentence would be true if it read; “The positive ions ~

in. the conduction of current by, acting as

tor’ was left in for it is inconceivable |

in circuit,” which is what the plaintiff now says. Cone Ree 4

ah or carriers ‘of current.” He answered:. Te aw
\ Dtet eaten panne nna ;

>)

Pact eon

- With this cancellation and: ‘explanation Langonute
rested. Neither by amendment nor in ‘his testimonly did

. he again advert.to a prior art theory. of gas doniducfon, ae
which the plaintiff now says. “was regarded ‘by the art) “3

~ gs an essential element of the operati

= respect to the early work of. Lilienfeld, ‘as follows:

~ “Lilienfeld proved beyond ques ion, I think, that
he obtained: discharg ‘in some Cases at least, in.
_ which the effects that Ke measured were nof de- -

.

pendent upon gas ionization *. *
'. “Lilienfeld probably succeeded . in obtaining a

scribed in-his 1910 paper * *

walls of the vessel, he reduces. the gas pressure to
¥ we 2 — his electrodes by a _bombard-
: en e gre

. “Heating of glasi and olentrodie: i soheuatiaa
to low pressure, are elements which were used by

arti 2 * *

' “Wactor No. 1 which I gave in answer to XQ84, he
‘viz., that the bulb should be fieated during exhaust =»

“In the interference proceeding Lanigmulr. testified with »)

+ discharge ‘high vacung substantially free from.
_- : | effects of. positive ionization in the device he de- .

he “Lilienfeld in his experiments of 1910 heated the.

a low. value, and in seme of his iexperiments. he

Lilienfeld and were; Snowe prier, | a Litientelit's Pa |

st)

_ / ~~, to a’temperature materially higher than the operat--

con Jee temperature, ‘was used by Lilienfeld ‘in much - : x .

“yh “Pactor No. 4, ih is that which I gave inthe
“oat aa Ped casing nnd aba refers to the lower-

brings about no further change.’ In‘:
ce td iy 12 at i Te

tok Liliénfeld’s sot coaieaennniae this condition - :

* 4. 3
ae 7 wai = | a
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yore ee

Aug. 17, 1923.

In ‘THR

“United States Patent Office

. | 4
' Anwovp v. Laxowur,

po :
Patent INTERFERENCE No. 40,380.

APPRAL FROM ‘Bxamnvens-1¥-Curer,

6

of

| Bunorn, Descteanns Arpanatos AND THE ‘Procuas OF.

- Priparina THE Same. ot

—_

and-materiajly above ionization voltages that in that |
/ .° 4 pange the space current is governed by the combiged —

or limiting of the ‘current being substantially un-

Cane affected by positive ionization and ty —e eles...

Pp toh Smee emission rome the walls of the tube. « t

. € oat ae discharge device comprising a she and elec-
... trodes therein one of which is adapted. to. emit elec-

trogs, the degree of evacuation and the relation of

_ ‘the parts te the device being such that the device is.’

. + « > ogapable of being so operated, when voltages mate- .

pabinck ridlly hig&er than ionization voltages are impressed _

ener -on electrodes of the device and when the electron

L emission has any. value such that the space. current

se - .. ig below the saturation region at, such voltages, that

ce ‘the line obtained by plotting the logarithms of any

ee values of said current below the saturation region

mo me as ordinates against the logarithms .of the corres- .

Pee aes ponding values of said .impressed voltages as a.
oes scismas is straight and continuous...

. 9. garde deve umprising a abe and de
_ trodes themgin one of which is an electron emitting
ea: : the degree of evacuation of device and
: ein per dre elng SU
df being so operated,

bi “ah calackatners ‘alin; nvinat whackeoden ‘st aie

effect of the electric field of said clectrons and the ~~

o

-

4

n. A denies tube hearted a esithode cilapiol “ae
emit electrons, an anode adapted to receive elec- ae
.trons and tube walls fashioned or shaped 80 as'to ->.
_ ‘permit the free passage of a useful proportion of
_° gaid electrons from cathode to anode, the gas con-
- - tent or residud of said tube and the relation of the
parts of the tube being such that the tube is capable
of operation with stable and reproducible results
substantially unaffected by positive ionization, with .
currents of at Jeast 5 milliamperes and with en
of at least 200 volts:

18. The method of controlling an electric current
*. in one cireuit by an electromotive force in another —
; circuit which consists in causing said current at volt-.
ages materially above ionization voltages to pass as
_ a discharge across a vacuous space between an elec- -
tron emitting cathode azid an’ anode, maintaining a
high vacuum in said space, governing or limiting the
current by a space charge effect in said space sub-
stantially ‘unaffected by positive ionization, and --
superimposing the effect of ‘said electromotive force =
_ on said space charge effect to control said current in’ ~
a stable and cies, Seay ‘Manner, : :

- the counts are- ably and clearly: analyzed by the ons
aminers-in-chief thus: ! Chae Petes

mids A thermionic tube witch operates solely by: glass i.
”

a
* ,

‘power. This obtains while there are plenty of elec-

3 » than they van be emitted. The result is the flat-
at See topped curve showing saturation. The tubes of the
. . issue are operated at voltages above that of ioniza-:
S™ +‘ tion and below that of saturation, and the voltage
“... gurrent eurve follows the 3/2 power law. This is one”
of the charactéristics of the tubes; and a tube that —

peel ny Se Somapery meet seery of oh |

Se a :

’

a Oe soe ae
* tthe dldctioden na walls act like sponges, ‘thing ts up
- the gas when cola pao again giving it off :when heated >
~ during operation. A-tube which bar gas either in. ©
- @ normalfree st te or occluded in the. electrodes or . &
walls is subject ti ionization; and ionization takss =f .
rises sufficiently to produce.
“About 15 volts is sufficient to give this: result.
oe a tube which operates by ionizing-#. gas‘ does not
Tespond to the 3/2 power law. and is %ot a tube of 3
the issue. Excessive ionization is usually accom- °
ie panied by a blne glow or haze; but such a ‘glow #9 not
a reliable test, as both parties admit; since a tube
that does not show blue glow may produce ignization
to such a degree as to cause it to ore from the 3/2 .
power characteristic. = a)
| | Any tube which gives the 3/2 power voltage- 3 4
+. --@nrrent eurve must also give the straight-line when
- the volts and current are plotted on logarithmic
paper. These’two curves are plotted from the same ~
‘Gate and their differences are due simply fo the @.-
ee ae
| be plot.

pa | :
“~~ fed on! one kind of paper and the result ows a pure
electron | there can be no doubt what the
other kind of ‘paper would show.. Certain counts, as_
6 enc, call for the straight-line, while count § catls

refer othe elated of th ee
eurrent cee

a

“~

"experiments: Langmuir was doing nothing new and addi Pe

nothing to the sum of human knowledge. He had neither | x S
conceived the invention nor ‘reduced it to practice. It i is
easy to, see “why the — words were: chosen for use in cee

his preliminary statement.

Langmuir’s interest was still arial in. i ceouaeg oS
_ cent, lamps" fd he continued: looking at Edison Current —

from that aspect. In November, 1913, he proceeded to.ef-: =

periment with ‘other clamps ‘‘exhausted-in the regular way — 7
"that tungsten lamps: were- exhausted. *” These laraps hada

= filament Fit four separate leads dividing it into three a .
oops? Sufficient current was applied to. the: middie loop'te

burn it out and experiments were performed. ‘with Edison =
Current between the reniaining loops: Very elaborate notes
are introduced with reference to all these experiments, but. |
, there is doubt as. to why the middle filament was burnt out..

he notes say to. separate the other two; the testimony says.
_ for that purpose and also to effect ‘‘clean up’’ in thé bulb. §
"Probably the latter is frue, as such a clean up was not new. :

Work with this bulb surprised Langmuir by showing somé .

‘on involved, and ‘thus sefile o once for all. whether or sia a

pure electron eurrénts could. be obtained’ in ‘a practically —
- perfect vacuum.” ‘This statement shows clearly that-Lang- :
- muir had not made the invention’ before he-started the _

xperiments. ere ee

: rt es *
es as! : 3
ori ee ]

oe

Shee Hesenenlainne Pana poder nee:
of Noventber 21, 1912, show that Langmuir reported his
} results and then did not insist on.a high vacuum, but tought
his effect was produced by gas present. - ‘A gale
isto account for some of these effects is that a fs

}

A

Ba ount of somie gas such as argen always remains in 2 :
2 the lamp.’? .He ‘makes no’ suggestion of practical use of —
’ what he has discoveredg He is merely an sexperimental —

scientist traveling the xoad the prior art considered by the .

law had already traveled—of course unknown to ©

De Langmu . He says that ‘‘after November, 1912, steps were —
: ‘immediately taken to develop applications of* this. pure
- electron discharge’? (Langmuir Priority Record, p- 120),
‘bot the first date I find in the record is December 10, 1912,
at when Langmuir writes in his notebook what to him indichtes-
i ‘iat ho has suggested to Coolidge that his experiments ©
| might have a practical bearing on X-ray tubes. The lower .

tribunals have rightly refused Langmuir any benefit of the

a work of Coolidge, because Coolidge was not called to testify. -.
ee But even if benefit be given, the first date of thought of .
practical use is December 10, 1912, and Langmuir can have
_ 20 date of conception prior to this, since thé law examiner — ee
et has held that the invention lies not in laboratory experi-_
| ments such as Langmuir had performed, but in commercial

‘oduc's. 7% was even la ss ep heh

= _ DeForenia ’s work with th audion. Rea ee

ir’s activities... ay
_ On Octobe 30 and 31, 1912, De Forest brought one of
ons to’ the Western Electric Company ‘and suggested —

os ‘use as a Selophone repeater. | at was installed on an

72

Pronetetrn

6

“peaters. ‘He was recently: eile wutlige where he had spe- ;
~ eialized i in the «physics relating to electric arcs between -
metal electrodes at various gas. pressures. He had subse- —
quently doné gruduate work along the same lines and as a

__- part of this work had examined all available prior art liter-

‘ — ature.” His entire life work was along the lings of electronic ;
.. discharges. The De Forest audion was a device of this. ‘
_ character.and whén the Western Electric people saw that.
it-was not ‘sufficiently useful for their purposes, they called — -

- In Arnold, and on November 1, 1912, showed hith the device os
in the experimental telephone line. Arnold testifies on © - /
_ pages 12 et on of Arnold’s Priority Record, that on

912, he explained that if the De Forest audion

November 1,
were further evacuated so that there would be in it only a

_ pure electronic discharge not interfered with by ionization - a
of the residual gas, the device would answer the purposes |
of the Western Blectric Co. as a'telephone repeater. This

is confirmed by Colpitts and the’ other witnesses, they hav-

~ - ing been ‘sufficiently informed of scientific facts to under-
| stand Arnold’s suggestion. Arnold was thus able to make —

a practical or commercial application of the prior art | labor-
atory knowledge. I ‘agree with” the — zs

“Acwording to, this tae teak a a con
. sSeption Wl « thavmdadis aie gs Ghowsighly ACU

“that it would have a pte electron discharge; and i .

it clearly appears: that he knew how to produce & fret
a tube, wo. would consider hint tee Pek
“2 eh Bs Ate CONS ; Baws
9S Tee kee, A : ms Vs 4 : mM oo. :
a j i: f : ' Sena
r “he “ee me E -
ie S 3 s Fea
(ee. et is
bX i CURE
“ i / 7
1} j ‘ y TRA
os ‘ we 4
cas Sey ‘ |
s ; yi ?
! : be ses ;
/ ew Ae J : : =
Oi 4, y i . :
5 rs %; me
ers - oon! _ a Me Se
we ; * ;
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FS
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2 a:
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a ss

"SUPREME COURT OF THE UNITED STATES

- OcroBER Tex, 1930

“No. 630

‘DeFOREST RADIO COMPANY.

Petitioner

: v. : |
"GENERAL ELECT RIC COMPANY a

sega

Utes
PS

a uEW TORE Orrr

nh

ve
i”

eianaudiilihgees beh cane deci oe

aoa

ge “ 4
£3 af Pet % a. %
pF ARSED Ste

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yrs
wa
AP

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pet §

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55

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?

T OF APPEALS

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{
|

UNITED STATES CIR

J

pe

P

Rapio ComMPaNy.

THE DEForEsT

’

lee

if

A

~:

“a

°

FROM THE

wt

Distaicr Courr or THe Unrrep

bo

2

cT oF. DELAWARE

ISTRI

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9

‘ STATES For THE D

.

Opi

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.

*

.

‘

of thea: Count.

x

11, 1930.) __~

(Filed N

ae

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and Davis, Circuit

Ww

5

on
8: a5

Court bdow seneisaeil chemeelees: to us and. swe. oS
“the same. In ihe case of patent\No. 1,558,436, we feel the

" qnd‘dismissing the bill.

ee cted argument covering days and with briefs that
: : i the Coc saan covered several hundred pages, the case,

patent paternity of what is known commercially as the

- - Langmuir tube. The Court below held the tube had.no-

patent paternity: and to that question we now address
~~ ourselves. The subject-matter ‘of the patent and the gen-
eral features of the, pertinent art are set forth at ‘length:
_. in the comprehensive opinion of the Judge below and by

‘Teference thereto we avoid ~~ necessity ‘of arses re

- statement.

Laying: aside for the oak technical nemnes aol:

— discussion’ and. confining ourselves to simple

Court below committed error int ange pet avai

As usual in litigation over a Saleak of onl com-
euale value, the vast mass of. expert speculation, the

on re-argument,. narrowed to the simple question of the —

Gers

ent, tlie Langmuir tube is a tube in which for ex- |

- empl gaseous conductor dent to a Fleming valve

is charges called electrons which, under the influence _

t “My present invention. ead’ improvements

_ in electron-discharge apparatus which make pos-
sible a high load capacity and operation with the |
highest voltages, but the invention is also applicable —
and useful for moderate ‘loads and moderate ©
Voltages.” |

Existing chiectionabla: saci be ite: tae oe gasey
‘ae and. the erratic, non-determinable action of gas are :
_ pointet:eut as follows:

“In order to distinguish electron heeiargs de-

vices made in accordance with my invention from

‘the prior art, I will explain briefly the. character

of a pure electron discharge as distinguished rom’

a discharge through io gas. In a Geissler tubz,

and in a Roentgen or | ces tube the cor.duc‘ion

of current is accompanied by and depends upon

. gas ionization. Without a certain minimum

amount of gas a Roentgen X-ray tube: ceases to

SPR. One oaths maine eppreatind He:
resistance of the tube steadily. increases. _

| “The passage of an eloctthc current across a ue

ordinarily involves the ‘Movement of negative

Se hee

. oe er a
pai’ causes heating: 6f the cathode. ‘The iontzation'of —

- gases ans a low pressures by collision with electrons —
occurs at definitely determinable voltages, these ~
-,. voltages being known as the ionization |

|. These voltages are different for different” gases.
ca ie the: case of gases such as nitrogen, hydrogen,’
>. oxygen, argon, helium and neon, they are of the
ches? onder al magnitude of Afteen: to twenty-five volts.”

3
heen”

Describing thé DeForest ‘audion and differentiating it
‘ ome the alleged invention of the patent, the specifica-

. fion says: ah eee ane Mesos ee ene

3 “The phendaiend’ above described as being chars
acteristic of devices involving gas ionization are .
ae taken ‘advantage of in an incandescent cathode

ii device with three electrodes known as fe. © ‘Audion,

on eivnes ‘only one of a con-.
be used.’ “Ordinarily the gas |

5

4
{
4g

oo

ENE to high valiag, the specication makes this
statement:

| No arias bni-salbode ddvians are knoma to oe
operating with currents as great as above 5 milli-:
amperes with voltages as high as about 200 volts;
* indeed no prior discharge devices are known to me
1% operating in a practically usable manner and with- »
out ‘substantial positive ionization effects with cur-
rents as great.as about one-tenth of a milliampere
with voltages as high as about forty volts.” |

- Specifying some of the differences and advantages of
the alleged invention, the specification gtates:.

“In devices made in accordance with Peg inven- + @-
tion gas ionization is either entirely absent or is
negligible anda discharge takes place. which is dis-'.
: tinct in its characteristics from the described dis-
charge taking place in an ionized gas. The cathode.
is not heated by the discharge itself. Blue glow, ©
. glass fluorescence and in fact all readily visible
indications of a discharge are ordinarily absent.” —

_Referrng tothe evacuation ofthe tube, the specication :
\ aetalbe ee | é

| Bice the ctentin of hs doves a a
. of the tube are carefully heated to as high a tem-
: Se ee ee ing
ee ee eo ee

_ 01g is also true that when’ the anode“has been

| carefully freed from. gas, residual free gas, even if me

ee cy ‘in a sufficient amount to cause some gas’

|. jonization when the’ apparatus is first started, does - o

|. dittle harm, as it is quickly removed by the es ae

i? ’ clean-up effect when. the: device is cgetmrarms 8 Bes
Claim 12, which is,- =

“An el electrical discharge sede. sewing a Ne
gas-tight-envelope, an electronemitting cathode, an
|», anode deprived of ionizable gas and a. ae
_». controlling conduetor, the space in the envelope =
being evacuated to a pressure not substantially in oo
excess of a few hundred thousandths of a milli- ~ |
Ma meter of mercury, said device being characterized
3». by the; fact that when operated below: saturation _
ad. materially above the fonicatien. solieges, te
current is controlled by space charge oer
unaffected by positive. ionization.” |

is typical in easter of the alleged Sessreiatdioni:s
Does the defendant use a tube answering this general
description? We think it does and that in giving up the
via gaseous tube and using one of the “very high
" Yacuum,” a’ change which it announced ‘in its statements
ee to. the public, we-have a virtual admission of the essential
_. difference between the two tubes. The tube of this dis
closure is aptly described as “non gaseous” and “of a very .
_ high vacuum” by the. viasbanensacs ‘when — it on ee

aes eotoeem : sah ts ae

12 pi eeaatlos ne Msi inthe ald stele tone Odie. ¢
> tube. The. chief difference between this tube and

and. requiring a. variable ‘B’ battery, It had the.
decided disadvantage that after continued use the
_ . tube would get ‘hard’ and require more ‘B’ battery
*wmntil it reached such a state as to be inoperative, —
> ‘The new. ‘VT’ tube, like the DeForest standard
“tubes to-day, is purely an electronic tube exhausted |
‘to'a very high vacuum, so that it is non-gaseous and»
will stand very high plate potentials. When used
‘as a detector, however, a battery of 20 to 40 volts is
sufficient to give the proper plate current although
voltages of 80°to 100 may. be used without detri-
mental effect upon. the tube. The ‘B’ battery more-
“over, is riot critical in adjustment and, therefore, a
fixed battery may be used and is used for all prac-
tical work. * * The gaseous type tubes are,
eS . _— no longer being manufectared.”

rly ical ic tie Guteliba’ a Saleh as" alidity
of the patent depends, ‘we inquire first as to its useful-
ess, for the constitutional power to create the monop*
Sedialindcory: oteagitineyrbgewrrgree iat ahem

ie

which next to the ei the {telephone ey the wine

“jeent in human progress, there can be no question of

@ non-gaseous, ‘vacttum tube’s usefulness: Such being —
the case, i t novel? The simple fact is that -we see euch _
a tube in universal use to-day; we know in the quoted —
acon of tee Gout below oft “stability”; of its —
“reproducibility”; of its “power.” We know: that these —
~ elements have, as stated by the Court below, made “pos-
gible radio broadcasting, modern radio reception : and long
_ distance telephony.” Indeed the fact that a non-gaseous — e
vacuum tube makes possible.the present improved prac-_
tice shows that such practic did not exist before the Lang-
ieee ie ode he tbe device of Sovioms, 2

a agitinteed Bat bo the aginton ok Sedan
_ of Examiners they found, in affirming the decision of the —
"saneentedh-oraranpesir epg aman es

f DeForest’s andion sad Fleming's slat lay
Rchegeebsing grmuaypslen al

Pes ees kee avec eas
"ation, was in accord with the then scientific belief. In

ED ees — ‘an experienced savant, wrote that in the
Seemed ota principle is the shattering of a

Setar te ene ae

2

“Armstrong inventions the only audion tubes int
“That. sa martin was eccentric, is shown 7 DeForest’s_

Wat ge the first place, anyone who has had consider- Ve
ae ~ able experience with numerous audion bulbs rapes |
ane ee Dever ee nee bs
and to an.
tial wing évrrent curves

even for the same soe.

.

-

i

40 Seth ° bees. 2 4 a3 os 4 : ‘ ;
As tot replacement, the proof is that

- #5
13 .

Such ‘being the general state of the case, has the de-
_ fendant by evidence overeome the prima facies of the pat~
ent? We think not. As said by this Couxt jn 159 Fed. Rep.
$48, citing the Barbed Wire Case, tthe burden’ of proof
. wpon this part of the case rests upon! the defendant, and -
eyery reasonable doubt should be. s datiad aie os
And in our view the crux of the case is one of fact, namely,
ewhether the use of a vacuum in the combination of the.
claim was Langmuir’s novel disclosure. Weare not com>
__cerned with scientifjc theories and speculations as to what
_mtight have been done or what could possibly Wave been
Gee done for, as well said by the Circuit Court of Appeals of
_ the Second ‘Circuit in 298 Fed. Rep. 582, we sit “not as sci-
4 entists, but. as weighers of evidence.” But we ‘are con-
___ eerned with the fact whether the combination of the claim
_- which Langmuir disclosed was new, That some had bom- ©
_ barded-anodes of, X-ray tubes to get some of the gas out
of them; that others had heated bulbs or used pumps to .
. “lessen the gas, may all be true, but none of them had pro- _
_ duced the commercial tube which Langmiir gave to the
public. And such actual contribution in use and not
theory and possibility of speculation is, and of right — a
should be, the decisive factor in patent reward. As was
oe Ort Court of aes of tn Soe Gr :

tituting the counts are not pat-

ce leis _for 1909, Pp. 168; :
doy hy Gehrts, Afnelen, der Physik 36, p. 995 a:
gs _” Article by Child in the Physical Review, Vol. 2 ry
Pads” — p. 448 (1911); i
+ a ieee alen ps sag 33, Dp. s
"673 (1910); Posbatuche davai 'p. 108°
ey: | (1908) ; ite Bs.
OTE aaaeanatita’: (one ‘Thomo’ Conduction’ of " Blectrcity f
—, °° “Through Gases, pp. 222 to 227; .

‘ap Shottky, Jahrbuch der Radio Activitat, Vol. 12,
Phooey

es arg Zeitschrit mi 26,

ssi
a)

%

ae

ae

‘ ‘
4
, \

2

~ . ‘
* 2 é .
7 - 7 *%

‘Langmuir EP on Jan.. 29, 1917,. to parse the insu

te include claims 24 to 28 as counts, and subseque
' May 19, 1919, moved to amen’] by including claims i to " ;

_inqysive.
After the heating ‘Lanaiainte ice counts. 1254.

6 and 7 and claimis 24, 25, 27 and 28, leaving for con-.
. sideration count 5, claim 26 and claims 1 to 9, inc'usive.
_ The motion to dissolve is @fanted as to counts 1, 4 3, 4,
Gand 7, and the motions to amend are denied as to clajms _
\24, 25, 27 and 28. *. * 4 5 * ¢. ‘ (o
o . a . ° /

tn devices made in bnkondaies with my feiveniton gas. : i. ;
ionization is either entirely absent or is negligible and. »

\ istics: from the described a ing place in. an ae

ionized yas.

- with the cathode at a sufficiently high temperature so as —

»,ages, above a minimum voltage depending -on’ the. char-

when: with the cathode ata given. temperature the voltage

.

. Se Cae Boat: Ye * Bie ees Pa 5

‘The discharge current passing inal a: ‘given sake *

to give a, sufficient electron emission for a given voltage |
varies directly with the 3/2 power of the impressed Volt-

acteristics of each particular device. ‘In other words, the
3/2 power law holds -s tly only shove-a certain miini- Bee
mum voltage for a given device, usually a few ‘voiis. =
the electron emission is not ‘sufficient, as, for example,

exceeds the value at which all the electrons emitted are ae
-. utilized, then a further inckease in voltage produces sub- oe a
_stantially no change in ae The ‘discharge is inde-_ oe =
pendent of the vacuum, providing the p pressure. is below:
the minimum at which gas ionization by collision will —

_ take place. As distingpished from discharges in the pres- ' |
ence. of positive ionization, the ‘pure electron discharge is
_ characterized ss sa at Sen arpasicad boson pivess
~ eonditions. ne

ie Ca ee aay (ates ree Me UAE Se ae Ms ew as

| {As shown in‘Figaptte various parts of the ‘atl
may he mooted in tube or etfs pon ed

eis ‘

o 2 ‘Aivilar to the meunt used in incandescent lamps. ‘The

cathode dis* centrally loca::d and may consist. ‘of a short

' .. straight filament not shown in Fig. 17 but indicated by
_ the position of terminals: 5, 6, and shown plainly in Fig. 3.
“+ “The cathode shown in Fig. 2 consists of a V-shaped con-

Se ductor. * Either f may be uséd, the particular form

of cathode being ordinarily. determined by convenience of.
_ construction. . Preferably the ‘cathode conductor is held
" tailt bya spring 7 to avoid contaet -of the cathode con-

ductor with the gfid by. sagging . when the metal is-ex- .

panded ata high temperature. The lament 3 is mounted
“between two: oppositely disposed supports 9, 9, in this
“case constituting a closed loop, which’ may consist of in-
* sulating material, such as glass or. quartz, but i sgme
cases thay to advantage consist of metal.. Upon. this. frame-_

+ work'is: wound a discharge-varying conductor 10, ordi-°

narily called a grid. The turns of the wire are closely

. adjacent to each other and are also-~Very closely,adjacent
~. to but are out of contact.with the. iaeeeeeecrs cathode.

By aucans *Sf Suis. gra 10. potential m ney he annpliad to

_ -exert_a static control upon the movements of the elec- :
fons. “A negative potential applied om the grid xeduces
“the flow of current from cathode to anode in . Prop Pon -

- to the degree: of negative charge. A positive grid p ten--
7 * fal assighs and directs the flow of current from. cathode —

to ‘anode in proportion to the degree*of its charge.

The supporting framework for. the cathode and grid :
js attached to a rod 11, mounted upon the stem of the
-. tube... Adjacent to the cathode dnd grid is the anode 12
which in the present case has been indicated as consist- a:
"ing of a wire strung in a zigzag manner’ over a |
m fork-shaped supports 14 and 15, but it is dot neces:

that it ‘should assume this —, form. Both

~
Sd

a
~~

Gg

| for this purpose ‘is attached ‘to leading-in conductors 16° ma
, and 17, ‘The grid i is indicated in, Fig. 1 as being attached

% te

$

~ most approved methods of ineandescent lamp exhaust »

ae se take place. by passing an electrical

16

‘lin oud d grid shemale consist of tungten, but other *

- ‘Tefractory metals may be used. By constituting theanode
a continuous conductor it can be conveniently heated by
passage of current during evacuation of the device and

-to leading-in conductors 18 and 19 at.’ opposite ends,
_ although but one terminal is ordinarily necessary:

> AINE APet :
* oh Bia ae ort et Bt KR OES : * y® *

_ For the evacuation of the device the glass walls of the
tube are carefully heated to as high a temperature as the
glass will stand without softening and in general the °

are ‘used. The evacuation of the tube preferably while
_ still heated is carried out by means of a suitable evacyat- =”
ing means, for éxample, a Gaede molecular pump,which __
removes vapors ‘as well as gases. Chemical eyacuating =
-Means such as electrically vaporized calcium or mag’
‘nesium may also be used. Either before or during the
evacuation the anodes may be heated, especially when __
- the anodes are to be run at elevated temperature during =~
" fhe normal operation of the device: In this case the
. temperature is preferably carried close to brilliant in-
candescence. In the case of thé. structure shown in Fig.

nt through the wire 12. In fact, the heating may
place in @ suitable vacuum furnace, the temperaturé
a ; ae raised to'2500° ras or even higher. How»

harge, but this gas is driven out even 8

ete mee

the interior of the metal tbody ane’ the. sreanals of ‘eatin

. of the discharge but may be omitted when the. aren

‘° aré not heated during normal operation. . _

4, The determination, of the question of ‘patentability pre-
sented by the motion to dissolve ig not reridered easier
by the testimony of thé@eminent physicists appearing in -
the record, since the discussion has not been kept within

ac the scope of the order permitting the taking : of testimony cal
and additional publications not mentioned in the motions —

to dissolve, have been injected into the record from time.
‘to time. Under the Commissioner’s order testimony can-
not be taken to add to the disclosures of the references, —
but with respect thereto is to be limited to showing the
character and meaning of the terms: used therein and how

. these disclosures would have been understoad i by those

skilled in the art at that time. . ‘Evidence given in the light,

-_ .of publication subsequent to the alléged anticipating ref- — :

erences is not helpful for the présent urpose, but iscon-

. . fusing‘and tends to mislead in that it does not bring out

Bhs clearly the meaning of terms as understood at the datesof ¢

issuance of the references upon whi 1 reliance is placed .
~~ but tends to show the meaning of as they would be _
understood rhore recently by scientists who have a much >

al adie fund of, information, theoretical ~~ —-

3 ciate ay tans pak ak tua pce ace eee :
d sceeam wander oS |

t

having therein an incandescent ie-ninceitihibe cathode
‘and an anode was old prior to the filing of Langmuir’:
application, and methods of attaining high vacua, suffi-
cient. to give a relatively pure electron discharge in
properly asia tube, were also well known and avail-

able to persons skilled in the art. It is well settled, how- re i
ever, that the patentability of a combination is inde-. ° ~
pendent of the novelty of any ofits constituent elements |. a 4
(Leeds v. Catlin, C. PD 1909, 549). ‘Thererem ins for de-

- termination the: ‘question: of thé eaemned f the com~ ‘ :
bination as awhole. | ; o : ee
The importance and the far sonchine effect of the im- -

_provement are degree of vacuity, resulting in a new device. As will be
’ hereinafter shown, both parties realized the issue by tak-,
ing an ordinary DeForest audion structure, and removing
‘the gases therein to a probably greater degree than was.
usual in the comercial audion. Langmuir’s correlation —
may be obtained by taking any usual vacuum tube of the
prior art, denuding ‘the walls and electrodes of gag, @
and removing the gas in the tube by means well known
and understood in the prior art, until-a vacuum of higher _
attained, than was originally present in the tube.
In other words, by simply removing the occluded gases _
. and increasing the vacuum of the oe art
ies to a certain degree, the issue of this interference _
FS is fully realized. The degrée of vacuum necessary de- —
pends largely on the mechanical structure of the tube
- . ghosen, and to this extent the issue defines a correlation. ©
>*_ | Fhe history of the counts in issue is unusual and hasan) —_
als 8 SiLeccepeperemmerter see
9m. vigorous attack on the issue, as originally framed, a
was launched by Arnold. Permission was obtained to.”
"take testimony before the law examiner on motion to dis- -
SS ohananen aise rasontatarsoneyr oan
- terms in the drt. A volyminous record was presented by
both parties on the issue of patentabilitygand this record
hee ts dante coh tensa Ap ae :

=
- Seek,

S above ionization voltages that the governing. of limiting

\. shaped to per
ee of said electrons from cathode to anode, the gas. corttent or
pee welds: of said tube oe the relation of the! pee of the

an anode, the space in said Carbine being evacuated to”

__. velope, an external circuit connected to said ‘électrodes, -
~~ the degree of vacuity and the electron ¢ ion .of the’:

that the flow of current over a range of voltage santerialiy
% hore. the ionization voltage is goverried by the electric
’ field ofthe electrons i in the. vacuous space and the poten-

: “gas ionization. Fd Tay ¥

Count’6. “A discharge device ching ie one s

as . trons, the degree. of evacuation; and the relation of he. -

oe _ parts of the device being such that the device is capable of: ,
é = being so operated, when voltages materially higher than: =]
ionization voltages are impressed upon eiectrodes of the a
ae device and when the electron emission has any vale such

2 © that, the. space current is below the saturation’ region at i

stick: voltages, that the slope of the line obtained by plot
"> ting the logarithms of values of said eurrent, as ordinates ~_
against the logarithms of the corresponding values of said

shiva agama dees vag eeidareties

ne ae cas, is es ee

a electrodes rodes therein one of ‘which is adupted to emit elec-

* the seeres ot ‘evacuation on the relation of the

parts of the device being such that the device is capable of -
_ being so operated, when voltages materially higher than —
. ionization , ‘ * ‘a * 3 . onic purposes, and. wag in fact never intended for use i
such a.relation, nevertheless, the counts of the issue must
be distinguished therefrom, otherwise the terms will be
\ squarely met by a prior’ art. disclosure. _ Unless distin-
‘guished, the counts will not set forth the contribution to.
the sum of human knowledge (General Electric Co. vp. .
Nitro Tungsten Lamp Co., 282 0. G., 195;. 266 Fed. Rep.
994) and will not point out the earns ners in the man- .
ner required by Sec. 4888,R:S.. | =
The Fleming disclosures bear on the EEG of a 5 %
two-electrode vacuum tube, which has béen used commer-
‘cially to some extent. The structure of this tube is dis.
closed in a paper published. Fleming in the Proc. Rowil.
- Soc. Vol.-74, pp. 476-487,: anuary 24, 1905, in U. S. Patent
_ No: 803,684 to Fleming, and in a paper published in the
- Scientific American Supplement No. 1568) pp. 25129-25131
> Japnaty 20, 1908, pertinent extracts of which are re-
a in Arnold’s Reference Book, pp. 47\to 71. The
~~ degree of vacuum specified by Fleming in his disclosures
' is the only element which neéd be considered, since the
—qiinng elements are unquestionably disclosed. His.
__“consists-of an ordinary incandescent lamp bulb into wh
has been sealed in the usual way, a plurality. of elect

- in the form of filaments, or ‘of a plate and a filame
_-B. pp. 4, §8, 00 and 68). Regarding the deg
vac Fiemin, scokanredesetemneuende 803,684 (R. B. p

Ne

|: of air is occluded in the conductors, these should be
> heated when the bulb is heing exhausted. The fila-

oe ment b can he conveniently heated by passing a curs :

auton hrough it, while the cylinder c can be heated
Be By surro )

ie i - 2 through which current is ‘passed, the whole being
is

bulbs, and yet these bulbs gWe pure electron
charge characteristics up to. several hundred vo
and several milliamperes sp —— “ie

and on page 171, A.M: Bu: Ace
As L have stated before, these’ tubes: were evacu-
ated simply by glowing the filaments-to bright in-
candescence and not baking the bulbs. -I used a

“standard pumping system which is superior to the -
pumps in use around 1906. In* ‘days the Toep-,

ler pump.was the one used by some scientists. The
Toepler pump is slower, so that my advantage lay
in the time of pumping.”

Van’ der Bij’ was fully sheeted jib Citi ie
|. experiments, the manner of making the tubes.and the ap-'
_ paratus used in exhausting them. The law examiner on. |

motion held that the Fleming tube was dependent to some
extent on gas fonization and the disclosures were not suf-

rs ficiently clear and full to inform the public how to get
the effective results now demanded in fhermionic devices.

Wan der. Bijl’s experiments and his testimony have not
. been discussed by the law examiner. It must be assumed,

io aa
pal
ppar ee

7 wee 3 the purposes of the determination of priority, that =;

e experiments were inconclusive. _ ]

ice: “A tube made according to Fleming's disclosures, adopt-.

ait the precatitions in obtaining the usual vacuum in

So ae

: _ issue.. Considering the situation, it” becomes apparent _

the i issue, A review of the precautions c¢ common in denad-
ing f filaments and bulbs of gas during pumping and in: re-
moving residual mercury vapors, indicates the extreme i.
precautions. iecessary to produce a device embodying the”

that the means. adopted to procure a vacuum furnishes —
no: reliable guide in determining whether a device cor
responding to the issue. | -has been produced... ae 2
The remaining important device limiting the field of the- .
counits, is the DeForest audion. DeForest attributed the — : eG
action of his audion to residual gas and, therefore, the dis-_ 2
_ ¢losure of his: patents may be disregarded. The in- —
a --quiry must be directed to the characteristics of the device — 3
eactually in commercial use prior to the work of Langmuir
» and Arnold. The DeForest audions actually i in use in the G0 J
_. prior art clearly must limit the scope of the issue. . Re!
' . garding the DeForest a erase testified Mt. Py
- BR. p..39): S
if “We should pane ‘in mind, ieunas that all De- .
’ Forest audions from 5 to 2) ‘or 30 volts operated: | ey
'. substantially: unaffected by positive ionization, so.
: that this demonstration could have bean made bind
anyaudion” =. -

‘Referiog to audions used in tests for i tidapthains repeal S =f

epi: ioce glgotyenstatriagheindge oe

ee (PR. pp Sands): aoe

eter ns ot pen

or

= aenold: exhibit 25 referred to by cn for pidinn. de. 7, sed Oi tales bak gla

__Amproved by burning out one filament, Arnold said. (p. ante
— R.): ® oes

3 ea ness thé expertinéat shows tht ieiSeiention
ec a "was produced, the evidence being that no current |
Soe. “flowed a9 meorenoage: me. to 48 volts.” _ ie

OP OI OR A 2 ren a — =

- in quality, the voltage could be raised as high as 41 to over
50.volts. ‘The counts must, therefore, be limited to de-
_ vices operating at voltage shout 1 10 or 50 without Sane
able ionization, “
In deciding the matter of priority it, therefore, become. ;
. evident that the counts must be limited in view of Lilien- 3
; feld to @ permanently sealed off device more useful.than
. from the standpoint of laboratory experiment or scien.
_ tific investigation of. laws of nature. In view of Fleming —
and the work of Van der Bijl it is clear that scant %
. more than the precuations advocated by Fleming in‘evacu- -
ation is required. If. the Fleming disclosuges be regarded _
as insufficient as an anticipation, certainly the suggestion
of aopeats of a high: yacuum in the usual prior art —
-inyention. The limits of the De- ca

held not anticipated in: this device, then 30 to 50 wollte can- -
not- be construed to be materially above the ionization
potential of 10 to 20 volts. Se oe
_ Before the matter of priority is discussed, a satisfactory
criterion for-recognition of a device-embodying the issue
must be determined. In general, the improvement con-
sists in making the commercial tubes of the priot art stable
_and operable in a dependable and reproducible manner.
materially higher potentials than was before possible for
satisfactory operation. The result has been a marked
Ses ihe tales nd in their ak

oy OS sied i eee reproducible 1 manner ‘ the space

X-Ray tube’ was based on his ork (p. 574, L. M. R.) and.

it is urged for him that ¢ i

on December 10, 1912, based ea/a cot ion recorded
-~ om page’ 156,158 of Langmuit’s note book ‘No. 413 (L.
Be 8). a ersation
. ~~ Eatigniuir wrote:

F Shichardeon's theory” ‘ena was oe “Richardson's
. law” referred to on page 144 (Ex: 81) which was Richard-—
~~ gon’s jaw of emission for hot filaments. On February 14,

4913 {p. a 5 Se | :

ee spears:
tae phe whole field of pure négative electron dis-
ce Se “charge is a yery important one. | think. this work

jn the laborato at least was started by me last —

November and that I had very clear ideas on it on
_ November 22, 1912, see p. 144, a couple of weeks

before Coolidge made up his first hot cathode tube.” —

" Hisideas of the effects of gas on November 22rare agen
on page 145 (Ex. 81) as follows:

> “but if gas is there the molecules collide with elec- |

trons (which have same velocities as those in fila-
ment) and slow them up and make them more
ey absorbed by anode wires.”

a Rebwniats 14, 1913, Langmuir did not attribute the

_ oe effect to ionization, but apparently, to slowing up of
the electrons by collision. These: entries do not show
"disclosure to Coctidge, and even if they showed complete

Ss > whderstanding and disclosure, failure. to call Coolidge
oe - Who was available asa witness, must rob them of any
aye muir does not testify that he disclosed to
rN ROO SENS ok teins ws Denes test 4 Oy

at

evelopment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0055%3A16. Public record. Not legal advice.