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quently issued without legal authority, and is therefore absolutely null and Foid. It cannot be questioned that when it appears from an inspection of the patent, or the statute under which it issued, that it was unauthorized by law, or that the officer from whom it emanated did not have authority to grant it, it cannot be regarded in any case as any evidence of title. Pollard's Heirs v. Files, 3 Ala. 47; Polk v. Wendal, 9 Cranch, 87, 3 L. Ed. 665; Patterson v. Winn, 11 Wheat. 380, 6 L. Ed. 500. But if it emanated from competent authority, although in the preliminary proceeding upon which it is based-such, for instance, as the issuing of the certificate or making the survey—an illegality should intervene which eventuates in the grant of a patent to a party who otherwise would not have been entitled to receive it, yet as it is made by an officer authorized to make the grant, and whose duty it is to pass upon the sufficiency of the evidence on which it is issued, it appears to be held, by the great weight of authority, that the state, or some one having a color of title or equitable interest in the land, can alone attack the patent for such illegality. Crommelin v. Minter, 9 Ala. 594; Hoofnagle v. Anderson, 7 Wheat. 212, 5 L. Ed. 437; Brush v. Ware, 15 Pet. 93, 10 L. Ed. 672; Jennings v. Whitaker, 4 T. B. Mon. 50; Hunter v. Hempbill, 6 Mo. 119; Sarpy v. Papin, 7 Mo. 503; Winter v. Jones, 10 Ga. 206, 54 Am. Dec. 379; Taylor v. Dougherty, 1 Watts & S. 326; Steiner v. Coxe, 4 Barr, 13. If this is not so, all distinction between acts void and voidable is destroyed. But perhaps it may be said that the commissioner of the general land office has no authority to issue a patent unless the preliminary requisitions of the law have been complied with; and, if he were to do so, it consequently should be held, when this is shown, not to pass the title. Such a conclusion would subvert in a great degree the efficacy of the patent, and would leave the party in a worse condition than while his proceeding was in limine; for then, if it were held erroneous, he might correct or amend it. The question suggested, however, does not present the correct view of the matter. The commissioner has the authority or power, as the granting officer, but should not issue the patent unless the party is shown to be entitled to it. Neither should a court give an erroneous judgment. But could the commissioner, it may be asked, issue a patent to any one whom he might fancy, without a certificate or survey? Perhaps not. He probably would have no more authority to issue a patent without a certificate and survey, of apparent validity upon inspection, than a court has to render a judgment without a petition. But if a certificate and survey are presented to him, and he has acted upon them, it would seem that his decision, though erroneous, should be conclusive upon all parties, except the state, or those who have some color of title to or interest in the land.”
There does not seem to be any dispute that an outstanding equity will not avail a stranger in defense against the legal title. See Shields v. Hunt, 45 Tex. 435, and Gullett v. O'Connor, supra.
The two certified land-office sketch maps introduced in evidence by the defendant in the court below may show to the initiated a conflict, and the extent thereof, between the patents issued to the Houston & Texas Central Railway Company and the prior parents to Dillingham, Epperson, McGuire, Chessau, and others; but, from our examination, no court or jury could tell therefrom the extent of any such conflict.
No doubt, the defendant in an action of trespass to try title may show an outstanding legal title in another; but, to be available, he must identify the same with the lands in controversy.
As the instruction to find a verdict for the plaintiff in the court below is found to be correct, none of the other questions involved in the case need consideration. The judgment of the circuit court is affirmed.
THOMSON-HOUSTON ELECTRIC CO. V. WAGNER ELECTRIC MFG.
CO. et al. (Circuit Court, S. D. New York. October 9, 1902.) 1. PATENTI-INFRINGEMENT-ELECTRIC MOTORS.
The Thomson patent, No. 430,328, for an alternating current motor, in view of the fact that the broad claims of the original application were rejected by the patent office and erased, and that no machine was ever built thereunder, is entitled to only a narrow construction as against an alleged infringer. Claims 1 and 2, as so construed, held not infringed. In Equity. Suit for infringement of letters patent No. 430,328, for an electric motor, granted to Elihu Thomson June 17, 1890. On final hearing
J. Edgar Bull and Charles Neave, for complainant.
TOWNSEND, Circuit Judge. Final hearing on bill and answer, raising questions of infringement of the first and second claims of complainant's patent, No. 430,328, granted June 17, 1890, to Elihu Thomson for an alternating current motor. In considering this case the following facts are important: (1) The defendants, by a consent decree in a former suit, had admitted the validity of the patent. (2) This consent decree was signed under the claim that the testimony in the former suit showed that the modified method which defendants purposed to practice would not infringe plaintiff's construction of said patent. (3) All the original claims were rejected on references by the patent office, and were canceled, and the original specification was radically modified. (4) It does not appear that any motor was ever made under the patent in suit. The complainant does not manufacture single-phase motors, except for small fans, and these are not made under the Thomson patent.
The defendants are extensively engaged in the manufacture of single-phase motors. The practical development of such motors was attended with serious difficulties. Certain patents under which defendants manufacture their motors have materially contributed to the success of this type of motors. The single question of infringement depends upon whether the narrow construction contended for by defendants, in view of the history of the application in the patent office and of the prior art, should be adopted.
The patentee says:
"My present invention relates to a method of operating alternating current electric motors in which the rotation is due to the reaction between an alternating current field and an armature, in which currents induced by said field flow in a circuit locally closed on itself."
That is, the patent relates to induction motors, as distinguished from motors in which the current is conveyed to the field and armature by conducting wires.
The patentee then says:
"This class of motors, when running at normal speed, are capable of sustaining their speed of running in synchronism, or nearly synchronism. with the alternations of the feeding wire, but are incapable of starting themselves.”
Defendants contend that this statement is incorrect; that some induction motors are capable of self-starting.
The patentee further says:
"My invention consists, broadly, in arranging the motor so that, as a structure, its armature will have different circuit arrangements at the start from those which will exist when it is up to speed or well started in rotation. To accomplish this the motor is started with the armature circuits commuted or changed, so that the armature will receive an initial impulse or impulse of rotation, after which, when the desired speed has been obtained, the connections are so modified, either automatically or at the will of the operator, that the circuit of the motor armature will be locally closed on itself and uncommuted. Briefly, the invention consists in commencing to run the motor with a different circuit arrangement for its armature from that which it will have under its condition of steady normal working or running, such primary condition being one adapted to give a torque, that, being continued for a sufficient time, will bring the motor up to the speed where it may be run with the armature on continually closed circuit."
Defendants claim that the clause, "will receive an initial impulse," taken in connection with the reference to the locally closed circuit after the desired speed is obtained, shows that the initial impulse is to be received by conduction.
The claims in suit are the following:
"(1) The herein-described method of operating an alternating current motor, in which the rotation is produced by the reaction between the field and a locally closed armature circuit carrying currents induced from the field, consisting in organizing or connecting the motor armature circuit so that it may receive an initial impulse of rotation, and, upon the attainment of a predetermined speed, changing or modifying such connections, so as to put the armature coils on locally closed circuit.
"(2) The herein-described method of operating alternating current motors incapable of self-starting, consisting in connecting the armature circuits in a manner different from that which they have during normal work, and in proper way to give the initial torque, and then automatically reorganizing the connections of such armature, so as to put the same on locally closed circuit on the attainment of a predetermined speed."
The respective contentions of the parties are primarily directed to the interpretation of the term “locally closed circuit," as used in the patent. The determination of this question appears to be decisive of the issues involved. The Thomson patent relates to an alternating current inductive motor of the single-phase type; that is, one adapted to receive a single alternating current in a single circuit, and which is incapable of self-starting. Thomson originally purposed to patent broadly any method of starting such motors "under a different set of conditions, or with a different structure, or with a different circuit arrangement from that which it will have under its conditions of steady normal working or running,” or by providing commutators only “in carrying out my method at starting.” But, upon citation of references, these statements of invention were erased, and the invention claimed was limited to one where, after the initial impulse is received and on the attainment of a predetermined speed, the circuit of the motor armature will be locally closed on itself and uncommuted, or will be put on a "locally closed circuit."
The defendants contend, and have satisfactorily proved, that the term "locally closed circuit," as used by this patentee in prior patents and generally, means a circuit disconnected from the main line. It
refers to a circuit which does not extend from the source of energy, but pertains to the local place, and no other. And defendants claim that the patent in suit is limited to a motor having its coils on a locally closed circuit, after, but not before, the initial impulse of 10tation is received. The complainant contends that the term is a relative one, and that when Thomson says in his specification that his invention relates to a method of operating such motors in which currents flow in a circuit locally closed, and says, “This class of motors
are incapable of self-starting,” he (Thomson) "is referring to a locally closed circuit of such a character that it is not suitable for or capable of causing the motor to start”; that is, one "without the brushes and commutators for exercising directive control over the currents.” Complainant further says:
“The defendants use the Thomson locally closed circuited condition when their motor is running. The motor would not start if its circuits were in that condition when the armature was at rest. The defendants, for starting purposes only, use another condition of circuits,-not the Thomson locally closed circuit condition; for, if it were that condition, the motor would not start. The defendants, only after their motor has run up to speed, change their circuit connections and put their circuits in that condition which Thomson meant to define, and in view of his specification did define, as the locally closed circuit condition."
Herein, then, lies the difference between the two devices. In order to start the Thomson motor, you open a switch and the current will be conducted into the armature. If you close that switch, the current stops. Defendants' motor starts by induction, and the motor coils are on locally closed circuits at starting, in the sense that the circuit pertains to the armature only. The term “locally closed circuit,” used in the patent in suit, interpreted by its use in two former patents to Thomson, and considered in the light of the file wrapper and contents, must be understood in its general and ordinary sense, as contended by defendants. In this sense defendants' coils are locally closed circuits at starting; complainant's, not until after the running condition is reached.
On the former trial complainant's experts admitted that in the Thomson patent the coils were not on a locally closed circuit at starting, but only on the attainment of the required speed. Thereupon defendants purchased the Anthony, Jackson & Ryan patent, No. 389,352, one of the patents under which the alleged infringing device is manufactured, and in which the armature coils are at starting and always on locally closed circuits. They have developed this class of motors, as already stated, and are now met by the contention that this patent in suit, a mere paper patent, by a broad interpretation of its terms, may be so extended as to embrace the defendants' construction. The effect of this interpretation would be to give to complainant the benefit of the broad claims, rejected by the patent office, for which the present claims were substituted. Whether such a confessedly simple step as that taken by Thomson involved invention, or whether its confessed impracticability deprives it of all claim to utility, it is not necessary to determine. The defendants are entitled to the benefit of the rule requiring a narrow construction of such a patent. Upon said construction there is no infringement, and the bill may be dismissed.
WESTON ELECTRICAL INSTRUMENT CO. v. STEVENS et al.
(Circuit Court, S. D. New York. December 8, 1902.) 1. PATENTS-ANTICIPATION.
If the structures described in prior patents do not themselves anticipate that of a later patent, the descriptions of them in the specifica
tions cannot be held to anticipate. % SAME-VOLTMETER.
The Weston reissue patent, No. 11,250 (original No. 433,637), for an electrical measuring instrument, is valid as a reissue, and contains a sufficient description to enable a skilled electrician to construct the instrument. The device was not anticipated by anything in the prior art, but was the first practicable and commercially successful instrument for measuring electrical currents, and especially alternating currents, and is an in
vention of great merit and usefulness in the art; also held infringed. 8. SAME.
The Weston patent, No. 470,340, for an improved movable coil conductor for use in the electrical measuring instrument, described in the patentee's reissue No. 11,250, discloses patentable invention and is valid. In Equity. Suit for infringement of reissued patent No. 11,250 (original No. 433,637), for an electrical measuring instrument, granted to Edward Weston, June 28, 1892, and of letters patent No. 470,340, granted to the same inventor, March 8, 1892, for an improved coil for such instrument. On final hearing.
William Houston Kenyon and Kenyon & Kenyon, for complainant. John P. Croasdale and Joseph C. Fraley, for defendants.
COXE, Circuit Judge. This is an equity action for infringement founded upon two letters patent, granted to Edward Weston. The first of these, reissue No. 11,250, is for an electrical measuring instrument. It is dated June 28, 1892, the original being dated August 5, 1890. The application for the original was filed January 18, 1890. The application for the reissue was filed February 5, 1892.
In the specification the inventor says:
"My invention relates to an electrical measuring instrument intended chiefly for use as an electro-dynamometer for the measurement of alternating currents of electricity.
"My invention consists, broadly, in a fixed or stationary coil and a coil oscillating or vibrating on inclosed pivots in the field of force of said stationary coil, said coils being electrically connected. The vibrating coil on the passage of the current through the circuit, including both coils, assumes an angular position, depending upon the difference of potential between the terminals of the circuit. The reversals of the current in both coils occur simultaneously, and hence an index or pointer connected to the movable coil is always deflected in the same direction, thus indicating the extent of said angular movement upon a suitable scale.
“My invention further consists in the construction and arrangement of the Instrument, as hereinafter more particularly pointed out."
Again he says:
"In my present device, and so far as I know for the first time in the art, I cause the index of the instrument to move directly to the scale-mark, which 19 to be read as the indication and there remain, no bringing back to a zero reading being necessary; and also, as I believe for the first time in the art, I have accomplished this in an instrument where the moving body is, as and