son appears why defendant must not contend that the same things which admittedly infringe the confessed patents also infringe all the counterclaim patents.

But, even on defendant's summary of these De Forest patents, there can be no infringements if, as matter of fact, the patentee (1) was not the first to disclose a detector with the enumerated characteristics; or (2) never disclosed or patented as an element of his device "terminal electrodes in a gaseous medium such as air"; or (3) if the devices of the counterclaim patents still in suit are for any reason different in kind from those covered by the confessed patents; or (4) if the patents in suit on the counterclaim are inoperative or invalid.

(1) De Forest was certainly not the first to disclose or invent a detector comprising a local circuit containing a battery and a telephone, and we find it true that the so-called "two-electrode audion" is no more than a Fleming valve with and in a circuit with adjuncts antedating both De Forest and Fleming.

(2) The expression "gaseous medium, such as air," is an endeavor to conceal what we regard as the plain disclosure of all the counterclaim patents based on original applications dated February 2, 1905, and January 18, 1906, viz. that the patentee's fundamental concept was to produce conductivity by heating. He thought and taught that heated air, or the heated gases of (e. g.) halogen salts, when the point of dis association into positive and negative ions was reached, produced a medium favorable to conductivity. Neither of plaintiff's devices operates on any such principle; whether there is any merit in De Forest's disclosure is immaterial.

(3) We agree with the court below that the radical difference between the disclosures of the first six counterclaim patents and anything shown to have been used by Marconi is apparent on inspection; because none of De Forest's devices utilize a commercial vacuum, or what defendant's expert called a vacuum of the order of an ordinary electric light.

(4) The seventh counterclaim patent (841,386) is proved to be inoperative. The patentee declares that by "suitably varying the length of interelectrode medium" he can make the audion "per se selectively responsive." Assuming this last phrase to mean "make it work," defendant at the trial did not do it, and we think refused to try.

It follows from the foregoing that we hold patent No. 841,386 void, and all the other patents of the counterclaim (still in suit) not infringed. It is not often that any case contains so much history as does this one. It is true that Dr. De Forest, through the whole line of the counterclaim patents, sought after a commercially useful detector, and ultimately produced one; but it is not true that he consistently followed one concept or theory and tried to reduce that to practice. He began with the heated gas theory; he ended with the three-electrode audion, employing the commercial vacuum, and before he produced that success he learned of Fleming's invention and the latter's address before the Royal Society. He promptly used the knowledge so acquired, and it is the endeavor to connect these differing lines of effort and conceal their lack of normal connection that has produced the theorizing of this record, and also the persistent, use of the word "audion" as applied

even to the earliest De Forest patents, which are of dates before that word was coined.

Among the curiosities of evidence in this record are numerous extracts from technical periodicals giving the opinions of the authors on the subject-matter of this suit. One from The Electrician, of November 21, 1913, is a just comment on the cause:

"We think that Dr. De Forest might be more generous in his acknowledgment of the work of Dr. J. A. Fleming. Our readers generally will probably agree that the audion, although differing widely from the Fleming valve, is an offshoot of it."

The decree below is affirmed, with costs.

FIZZELL V. LOURIE MFG. CO.

(Circuit Court of Appeals, Seventh Circuit.. April 10, 1917.)

No. 2194.

PATENTS 328-VALIDITY AND INFRINGEMENT-TIRE SETTER.

The Henderson & Lourie patent, No. 933,834, for an edge-grip tire setter, was not anticipated, and discloses patentable invention and utility; claims 2, 3, and 5 also held infringed.

Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.

Suit in equity by the Lourie Manufacturing Company against Robert Fizzell. Decree for complainant, and defendant appeals. Affirmed. Taylor E. Brown, of Chicago, Ill., for appellant. W. Clyde Jones, of Chicago, Ill., for appellee.

Before MACK, ALSCHULER, and EVANS, Circuit Judges.

MACK, Circuit Judge This is an appeal from the decree of the District Court, granting an injunction and accounting for the alleged infringement of claims 2, 3, and 5 of letters patent No. 933,834, granted September 14, 1909, to Henderson and Lourie, on an application filed January 17, 1906, for an edge-grip tire setter. These claims are

as follows:

"2. In a tire setter, the combination of gripping blocks provided with means for engaging the edge of the tire, and means for yieldingly supporting the blocks to conform to the curvature of the tire; said means comprising a yielding support on which said blocks rest and adapted to be engaged by the tire." "3. In a tire setter, the combination of gripping blocks provided with means for engaging the edge of the tire, and a plate on which the blocks rest with their rear ends; said plate being yieldingly supported and adapted to be depressed by the tire to adjust the blocks to the curvature of the tire."

"5. In a tire setter, the combination of a frame, a stationary head block secured thereon, a second head block movable on the frame, gripping blocks movable in said head blocks, a hydraulic press mounted upon the frame and provided with a piston rigidly connected with the movable head block, means for moving each pair of gripping blocks in unison and relatively to their respective head blocks, and means adjacent to said means for moving the gripping blocks whereby fluid is forced into said hydraulic press to impart movement to said head blocks."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The following drawings will assist in the understanding of the is

Various methods are used for setting steel tires on vehicle wheels, the object of all being to contract the circumferential length of the tire, so that it will firmly grip the felloe of the wheel and be securely held there by friction. The oldest method, and one which is still in limited use,, is hot setting by hand. This consists in removing the tire from the wheel, reducing its diameter to the desired length by cutting out a piece, welding its ends together, and heating the tire so that it may be slipped over the felloe. As the tire cools, it contracts and grips the felloe firmly.

The oldest method of setting tires by machine is the face-grip method. This process does away with the necessity for cutting and welding. The tire is removed from the wheel and usually heated at a point on its periphery. This heated portion is clamped between jaws, which grip the tire on its inner side or face, and which are forced towards each other by mechanical means, so as to upset or compress the metal between the two sets of jaws.

More recently cold-setting machines capable of setting the tire while on the wheel have come into use. These machines are of two sorts, edge-grip and full-circle. In the latter, the upsetting mechanism, consisting usually of hydraulically actuated cylinders, is applied radially at a plurality of points on the tire, so that the inward motion of the pistons compresses the tire and causes it to fit the felloe snugly. As these full-circle tire setters are large in size and comparatively expensive, they are used chiefly in wheel factories and are found in only a few larger blacksmith shops.

The machines of the edge-grip type, to which the patent in suit belongs, are simpler and less expensive. The upsetting occurs at one place only, and is produced by two pairs of gripping jaws, which engage the edges of the tire, and which, when moved toward each other, cause the tire between the two pairs of jaws to be compressed or upset, so that its circumferential length is reduced, with the result that it will fit more closely about the felloe.

"The object of the invention" in suit, according to the specifications, "is to so construct an edge-grip tire setter that it can be operated by hydraulic pressure. A further object is to provide improved means for adjusting the gripping blocks, so as to conform to any shape and diameter of the wheel." The machine, as described in the specifications, consists of two blocks or heads, a fixed head 2 and a movable head 3, mounted on a frame. These heads are spaced and held apart by a coiled spring 14. To allow tires to be set firmly in the machine, the head blocks are provided at either side with projecting jaws 18 and 19. The oblique inner edges of each jaw incline towards each other and towards. the outer ends of the heads, so that they form a converging channel. In this channel is inserted a pair or set of gripping blocks or jaws 20, which are wedge shape and adapted for engagement with the beveled inner surfaces of the projecting jaws. When the gripping jaws are moved longitudinally outward with respect to the head block on which they are mounted, they will be forced inwardly on account of the oblique surfaces of the projecting jaws, and the teeth on the gripping jaws will engage the edges of the tire. This longitudinal movement,

with its resulting lateral movement, is effected by means of levers 22, fulcrumed in each of the heads and provided with upright jaws 22a, which engage with pins 23 on the under side of the gripping blocks. Each lever is adapted to operate one set of gripping jaws, so that each set will move in unison upon the head which supports it.

The inner ends of the gripping blocks rest on the plate 17, which bridges the gap between the two head blocks; the outer ends rest upon a transverse bar 24, which is supported by a U-plate 26 attached to the upper end of a yielding spring-controlled bar 25. When a wheel is placed in the machine between the gripping blocks, it will rest at its bottom or lowermost point upon the supporting plate; while the rising arc of the tire will strike the bar 24, forcing it down until the arc of the gripping jaws substantially coincides with the arc of the tire, so that the teeth on the jaws will properly grip the tire. After the gripping blocks have thus been adjusted to the curvature of the tire, and, by means of the longitudinal or wedging action above described, brought into preliminary gripping engagement therewith, the movable head block 2 is drawn towards the stationary head block 3 by hydraulic force.

A hydraulic press, consisting of the cylinder 4 and piston 6, is mounted upon the frame. The piston 6 is provided with the cross-head 7, which is connected with the movable head by parallel rods 9, placed at each side of the heads 2 and 3, and extending through sleeves on the side of each head. Liquid for operating the press is obtained from the tank 51, which is connected by the transversely arranged cylinder 39 and the passage 41 with the cylinder 4, in order that the liquid may be admitted back of the piston 6 so as to drive it forward. This forward action is communicated through the cross-head 7 and the rods 9 to the movable block, which is thus drawn toward the stationary head. The pressure required to drive the liquid into the cylinder 4 is afforded by means of a screw piston 42, 44, operated by a crank arm 47, or by a ratchet arm 50, both of which are placed near or adjacent to the levers 22 so that one operator can conveniently operate both.

The machine used by the defendant and manufactured by the Keokuk Hydraulic Tire Setter Company, which is alleged to infringe the patent in suit, is of the same general type and style as the patented machine. It is an edge-grip tire setter with a movable head block 3 and a stationary head block 2, with hydraulic means of drawing the heads. together, with gripping blocks 10, 11, mounted upon the heads and capable of a wedging movement therein and of adjustment to the curvature of the tire to be upset. The machines, however, are not similar in all respects. The adjustment of the gripping blocks to the periphery of the tire in the defendant's machine and the preliminary gripping of the tire is effected in a somewhat different manner. The gripping blocks do not rest directly on the head blocks, but are mounted on plates 30, there being one such plate for each set of gripping blocks. Unlike the patent in suit, in which the outer ends of the gripping blocks are normally held up and are depressed to fit the curvature of the tire, in the defendant's machine, the outer ends of the blocks must be raised in order to conform to the arc of the tire; while, in the patented structure, the outer ends of the blocks are depressed by the