90G

: GreAt; lldvIinlage 'is daMned because the from slipabrupt wirUs' of 'the \stinken' reces,seBpreventthe ping. But'ifit was not new, lliit is shown by theEIi&lishpatent to Newton, to'mike recessesjn ainetal saddle to receive cusbions, it can, hardly be said to require invention; when. the ,cushions as used areliable'tcFslip, to make the recesses sufficiently abrupt to prevent slipping. TII.e strongest and most persuasive argument which the complainatit 'ui'ges in' fa VOl' of the patentabillty of,tlieChristy saddle is based upon the testimon,y'shdwip,g the rapidly increasing sales, and its decided popularity; since it Ms become known upon the market.': But the saddle mal::mfactured differs so widely from the saddle sl:1()wh itdhe speCificatioIisand drawings that it is not easy to determine 'just what featUres make it acceptable to the trade 'and to those who it. It would appear that some of t4e features ofthe saddle as 'man.'ufactured which a'renot shown in the Saddle as pat· ented tnore novelty and'l1tHity than tbbse des'cribed in the patent. 'It may well be that tlIe advantages of the manufactured saddle result from the fact that the saddle plate is reduced in size until it is nothing more than"a snpportfor the two pads, and has no bearing 'at all for the'fleshy portion of the buttocks so that ,the rider's weight 'tests exclusively Qpon the two, ischii of; the pelvis, an'd also from 'the factthat the intervai!:between,the cushions/or pads leaves an open space rtom front to back similar to that .shown in the Hicks :which there can be a current of air, and because of patent, which there,cl;\n be, no pressure upon the perinreum. It quite probable that it may be these unpatented features, not shown; in the specilftca:tionsor drawings, which', have given tM Christy, saddle the rather than atiylHlvantage' of con' from ,the facttliat the pads ,are set'Jn depressions, stru'ction are, detaehable.' It may also be thaLwHh ,the enorJ;Ilously inereased lise::6fbicycles experience may have taught particnlar riders that runs it is less, l;1sejJn'e"ld n d of than another, although not:sqagreeable at fir,st" parativeutility t11e acceptance of the improved device may just as well,blfafttiihifed to features not clllimed irdM'patent isan:un· safe guideilh'detertniningth'eexJstence of'patentabl'(ll inveMioh. Up()U the daise, considering theprlorstateof the 3rt, 1 'ha¥e f,orced that)! !d.id' not toifomr.fthe recesses on 'the ,surface, 'df !:t"lsohd·top saddle Wlthabrupt margmal them from, slipping. ' '; " walls to t:eceive the
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PNlpNSWi1rcH & SIGNAL CO.·et;l:\.I. v. PHILADEI;fHIA & R. R., , (Circuit Court, E. D. May 26, 1898.)

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'I'he 'WestJnghouse patent, No. 270,867, for improvements In' electrIc ,circuits for railway signaling, is void because it was In practical and public usefQr mOre than two yearsbefQre ;the patent was applied for; and lJecl/-use a complete description of it was previously publlshed in the "RailrqadGQ,zette/', a tr,ade a general circula tion ilmong l'ai!: road people 'and those connected with rallroads. '. "

SIqNALING.,

.

. . ,

UNION SWITCH & SIGN AL·

o.

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V. FHILADT':LPHIA & R. R. CO.

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2.

SAME-INFRINGEMENT.

The Gassett patents, Nos. 233,746 and 246,492, for electrIc railway slg-' naling apparatus, which disclose improvements on the preceding Robinson system (No. 130,661, reissue u,938), consisting in the exhibition of a danger signal set at the entrance of a track section until .the train has passed over a certain portiOll of the track section next in advance, thus securing two danger signals l'ell.rward of the train while it is traversing the overlap, are not infringed by It device in which two danger signals are set at the beginning of each section while the train is traversing that section, and one of which continues. at danger, as a distant cautionary signal, during the passage of the traiu over the second track section in advance. At m()st, these patents secure, the exclusive right only to use the specific means described to produce the described result. A patent for an improvement in connectors for electric track circuits, consisting of a wire having its ends coiled around and soldered to the outer ends of tapering plugs, which are ,driven into holes bored in the rails to be connected, is not infringed by a connector formed by laying the ends of the wire in longitudinal grooves formed in the sides of the tapering plugs, and then driving the plugs, with the Wire, tightly into holes in the rails, ! f" ,. The Gassett & Fisher No. 227,102, and the Means patent, No. 273,377, for improved conuectdJ,'s 'for electric track Circuits, construed, and held not Infringed, the, former 'as t() claim 1, and the latter all to claim 6.
ELECTIUC

THACK CIRCUITS.

"

8.

SAME-INFRINGEMEN'f-CONNECTORS Fon

4.

SAME.

This was a suit in equity by the Union Switch & Signal Com· pany and others against the Philadelphia & Reading Railroad Company and others for alleged infringement of a number of patents relating to electric railway signaling. .. Geo. H. Ohristy, J. Snowden Bell, and J. Warren Coulston, for complainants. Witter & Kenyon a.nd Thomas Hart, .Jr., for respondents. ,ACHESON, Circuit Judge. The plaintiffs sue for the alleged infringement by the defendants of five letters patent, namely: First, No. 233,746, dated October 26, 1880, to Oscar Gassett. for electric railway signaling apparatus; second, No. 246,492, dated August 30, 1881, to Oscar Gassett, for electric railway signaling apparatus; third, No. 270,867, dated January 16, 1883, to George Westinghouse, Jr., for improvements in electric circuits for railway signaliIig; fourth, No. 227,102, dated May 4, 1880, to Oscar Gassett and Israel Fisher, for a connector for electric track circuits; and, fifth,. No. 273,377, dated March 6, 1883, to Oharles J. Means, which includes improved means for attaching a conducting wire to the rails of the' track. The Gassett and Westinghuuse patents relate to signaling devices for the protection of a railway train against rear collisions from other trains following on the same track. considering the particular features of th,e signaling appliances of these .patents, it will be well to give some attention to the prior state of the art of railway signaling. Prior to the date of the earliest of the inventions of the patents in suit,electricallv actuated railway signaling apparatus, automatically operated bv a moving train,; was in common use. The railway track was dividedinto a series of blocks or tracksectiQns .of:anyqesire41ength, and the protecting signallil located and

908

87FEDERAI:i RIllFORTER.

to ,the track sections as the. passed., over them successively. The 'moving train protected. i rear collisions 1;>Y. ,setting signals to "danger," "caution/'and"clear," for the infqrmation and guidance of the engineer of the following train. ltwas com· mon to m,aintllin at least two,protecting' signals to the rear, of a w:ere in use. These . moving train. "Home" signals act in. connection with oochother. 'the home signal is the signal for the track section at the entrance of which it stands. The distant signal is placed at a convenient distance to the rear of its home signal, and gives cautionary notice of the showing of the home signal.. All this was part of the art as practiced anterior to any of the inventions of the patents sued on. A reference to a few of the pri9r railway signaling patents may be helpful. ' The British patent of 1872 (No. 3,448};' to Sykes & Francis, shows a series of springs arranged along one of the rails of the track in electric connection with electro"magnets for working the signal lights and signal arms, and operated by the passing train. The patent states:
"For example, a tr/lln on It'lavlng s,tiltlonN'O. 1 (see diagram, Figure 4), acts upon a spring outside that station, Iln,dthereby moves the signals at that station to danger. On reaching a posifion midway or between stations Nos. mov;es the signals, wpich may be 1 and 2, It acts upon another spring·. 'distant signals' .In eonnectioI;l therewith to danger, without interfering .with the signals at station No. L 'Then; on leaving station No.2, It acts upon another spring, thereby moving 'the' signals at this station to danger, and at the same time returning the signals at statlcmNo;1, and the Intermediate or ,dlstantslgnals to. caution. This mode of wprklng signals autOmatically may, ot course, be modified to adapt It to the various systems now In use on different lines."

The British patent, of 1873 (No. 344); to Carr & :aarlbw, for impro.vements in railway electrical s\gnaling apparatus, states:
"The object effected. by our Invention Is that no train passing along a line of railway can approach within a limited distance of the preceding train without receiving a warnlni! signal. The distance at which trains are kept apart may be any suitable distance, and the' apparatus works automatically."

The specification, aniong other things, says:
. "Now, let us a train to be A. It arrives at the lever at a, passing over It, breaks the current, a; .A., thus leaving the signal 'line I:)locked' at A. .The train, going'on, will arrive at B; and receiving the signal .'line clear' will proceed, passing over the lever, b. In doing so, it breaks the current b, B, thus leaving the signal 'line blocked' at B. and at the same time, by the wire b, a, brings In action the electro-magnetic apparatus at a, which couples up the. circuit a, A, thus leaving signal 'line clear' at A, and so on. The arrangement, so tar' as above described, is suitable for lines of 'railway on which everytTaiJi: stops at en'ch of the stations; but, for the lines of railways where this is not the case, Wll modify the arrangement by em_ploying, In addition to the Insulated bar. at each. station itself, andistance in . rear of the station to act as a Qther corresponding bar at distance signal apparatus, as shown by HIe diagram view, Figure 1, so that ":a train receiving a signal of 'line blocked' at the distance ,signal may slacken Its, speed as it comes up to the station, when It will receiveanothel' signal, and ielther goon or stop, according to the slgIlJfI it receives." :
y,

The United States 'patent to Henry" Flad, No. 162,369, dated ingafety signals for railways, April' 20, 1875, shoWs embodying the principle bfovi:!rlapping signals. The patent states:

UNION SWITCH &: SIGNAL CO. V. PHILADELPHIA '" R. R. CO.

909

"Ifor a double track (where the trains only run in one direction on each track), the signal abreast of the train is set to indicatl!danger (to a train following), and the signals are left st\l,nding at danger for a sutficient distance in the rear of the train, but are set to indicate safety, after the train has proceeded a given distance, by connection with the same mechanism by' which the signals are set to indicate danger. At least one !;lignal in condition indicating the danger is at all times left to the rear of the train, the train reversing the second signal to its rear; so that, in case of an accideut between flignal stations, the train following would have sufficient warning. For singletrack railways (on which the trains run in both directions) the construction ,of the signal apparatus is such that upon each side, abreast of the engine, the signals are reversed by the passing. train; and simUltaneously the signal two stations ahead, upon the left side, is set to danger, while upon the right side the signal two stations to the rear is set to safety, so that a train either following or meeting the first wlll be warned about two stations from the train first mentioned. Thus, It will be understood, the train does not act on the signal at the station next in advance or to the rear, but upon signals more distant, so as to always leave at least one danger signal in advance, and one to the rear of the train, and at sutficientdistance for warning to another train. This is what I denominate my system of overlapping signals, as the pipes or other means of communication, between the train and distant signals, overlap or run past each other, as is fUlly explained hereafter by reference , to the diagrams."

The first claim of this patent indicates the scope of Flad's inven· tion, viz.:
"(1) The method herein described of signaling, whereby overlapping signals .at a distance from the train are reversed, while otber signals, between the former signals and the train, remain at rest, to be reverseq in their turn, all substantially as and for the purpose set forth."

Flad's preferred means of carrying out his invention is by pneumatic action, but he does not confine himself to that, and, after stating that hydraulic or other specified means may be employed to work the apparatus, he ,adds: "Or the communication between the train and signal may be by electricity, the closing or opening of the circuit setting in motion mechanism by which the signals are reversed." There can be no doubt that, at the date of Flad's patent, any electrical engineer of ordinary skill, acting upon the suggestion {)f the patent, could have successfully applied Flad's system of overlapping signals by means of mechanism electrically actuated and operated by the train. The overlap relation of safety signals is a main feature of United States patent No. 150,030, to Hall, dated April 21, 1874, for an improvement in train-operated electric railway signaling apparatus. It is proved that this Hall overlap was in practical use for 'a considerable time, beginning about the year 1873, on the Eastern Railroad, in the state of Massachusetts, where there was for each track ,section an overlapping space of 500 feet in length during the passage over which the train was protected by two danger signals behind it, the first of these signals not being put to'safety until the train had passed beyond the. 500 feet overlap. Originally, the method of operating railway electrical signaling apparatus automatically was by means of instruments so arranged alOng the track that the train in passing engaged with them. Thismethod is called the "track instrument system." Afterwards William Robin;son devised and patented a methodfo,r the automatic operation of

"

...

87 FEDERAL REPORTER.

910

railway electric-1signals by the passing train, which was a very great improvementupon the track inst,J:IlItment system. Robinson's invention is described in his 13(),661,dated August 20, 1872 (reissue 5,958). His specification states. the object of his invention thus: '
"The object 'of t):llslnventipn Is to, opera.te electric signals, aUdible or Visible, by means of moving or standingvehl<;les or trains without the use of ordinary trac,kconn,ectious for closing or breaking circuits, and without the use ,or, with tise of Hne wIres. f<J,r conducting the electric current, the ralls of the trai:k being used, fprthe latter purpose."

His patent shows the track insulated at their ends, and the poles of the battery connected by wires to the two 0ppou site rails; and, the elec,tro-rq.agnet W,hiC,h contrOl,S the, signal in like manner connected to the rail. Robinson thus ffovided a normally closed, drcuit in each track section with the signa normally ill safety position. The method of operation is this: As the train enters upOn a track se'ctiou;itswh$"ls' and axles, br short-circuiting, cut off the battery current which is thus demagnetized, a,nd thereby the signaL is ,shifted to danger" and remains at 'danger 'long as any part 'Of Ithe train is on :the section. The specification states:

as

"Wilen thes{il!:iJ.I'b,anner is.in ap6sltloil of exposure, asshown,the lever, L, ,may 'serv:e to' clOSe 'an addi{iO'flal' circUit through' the, 'battery, B, which may be used to operate' an aliun}, I" ihconjunction with 'the signal, S, or to actuate another signal at any 'distimt 'point, Furthermore, Instead of using tl;1e ,magnet; Eldoactuate directly, it may be used as a relay, ,operating, ,keep the; circuit whicb direCtly actuates the E;lgnal open or cJosed, as desll'ed; The' signals may be uSed also on a single track, and be applied as block ,slgnalfl, and for othetpurpoSes on single or 'double traclis.' "Wiben ,used as >& :l;l1Q(Cksignal or for other purposes, it may bedesirabletpindicate at, a distant. statioJ;j whim the' s'ignal is operative. ,1;hls object, carry ,one ,of the wires from the magnet, M, to the distant station'. Here letthewtre be passed through 'the cOils :of a bell magnet or other Slghaltng device; and thence be carried to the ,track, and, attached to the same, ,as :already described, The, dls,tant office or station signal will op,arate simultaneously with the S, any desired n)1111ber of signals may b,e oper/l-ted simultaJ:wously, at different points from a single section of 'track." ' " , , "

to

"One or rriqre Unes of wires may al,so be used to operate additional signals; for instance, to indjcateat a station' the approach of a train, or to indicate ,whe,n the block signal has changed." ' ; "

cludes his , bility :

August 29, 1871) {No. 3,479), which inetrcuitsystem of signaling, thUs speaks of its capa',: ; ., ',',,' ,, ',' '

the patentsMre .tn' and take up first the ',earlier.of the, two MS,146, dated O'ctober 26,1880. , T,he specificatioq wit,h,an ackn9:Wledgment wifh :respect to the previous condition of the art,and the patentee h1l4in here at length: "
"', ,"MY inven.tlpn, l:elates 'to that, S;}l!;lterl,J' ot,automatic
railway signaling "hlch the portion ofthtHength of a line. of r.al1wa;v 1ntt> 11, or (!{)nvenient length (whIch 'corresptmu:s :to, the :minimum Interval of spacew;hij::h it is 'desired to preserve between sa?le. \lni! ":n guarding each of said sections by a signal placed at or near't1:le entrance of

UNION SWITlJH & SIGN,AL ,CO.V.

& R. R. CO.

such Which signal is actuated or controlled by an electro-magnet included iIj. an electric 'circuIt extending the entire length of 'the signal section to which It apPertaIns, said electro-magnet being, In Its turn, controlled through the electric circuit by ft'movable circuit closer attached, to the train. By this means the passage of a train over each successive signal section causes a danger signal to be exbibited at the entrance of such section from the time that the train enters it at one end, until it leaves it at the opposite when the danger signal is withdrawn or discontinued, leaving the way clear for the next succeeding train. It. has been found in practic(l that It Is frequently desirable and necessary to continue a given danger signal in action after the train which sets it in action has, passed off from the section which the signal Is designed to guard until such train has passed over the next section In advance or a certain portion thereof, by which means an. additional security is provided, especially upon dangerous portions of the, road, such as sharp curves or delfCendlng grades. The object of my invention is to effect this result; and It consists, principally, In a novel arrangement of electric circuits in which the several circuits, appertaining to the different, signal sections, instead of being entirely independent of each other, as In the ordinary arrangement, are made to act to a certain extent dependently, so that each circuit is. as under the direct control of the train while the latter Is traversing its own section, but, In additioI! to this, Is also Indlrec,tly, under the control of the traIn through the agency of the ,next in the series while the said train is traversing a certain portion of the next signal section."

The specification then proceeds to describe Robinson's closed circuit system of signaling, and tl;1e patentee adQPts ,Robinson's apparatus and method in their entirety. Gassett's disdosed improvement upon Robinson consists in continuing the exhibition of. the danger signal set at the entrance of a track section until the train has passed over thus securing a certain portion of the track section next in two danger signals rearward of the train while it is traversing the overlap.' Gassett shows specific means for accomplishing this result. At a certain point (b2) in advance of the 'entrance end of the track section, he inserts an insulated splice "in one line of rails only, the severed ends being 'connected by the wires 3, 4, which form the terminals of an electro-magnet, 02." The, electro-magnet, 02, controls the circuit breaker, d. A peculiar adjustment is given to this electromagnet, 02, and its armature,d. Further details here may, be omitted. Indeed, they would hardly be intelligible unless accompanied by diagrams.·, The object to be attained and the general method of its accompliShment arethus summed up in the specification:
"Thus, it wlUbe understooq that the danger signal of eachsectJOl) Is exhibited during the passage of It train over that section by the shunting of its electro-magnet, and that its exhibition Is continued during the pa'ssage of the train over a portion of the next advance section, by the interruption of the circuit by means of a circuit breaker controlled by the train while traversing the latter section."

The specification then adds, with respect to the extent of the over· lap, the following direction:
"The Insulated splice, l:i2, may be placed at any desired pojnt between a2 and a3, according to circumstances. In practice It is usually preferable to place It at.a distance from the point a2, at the; entrance of the section, equal to the maximum distance required to stop a train after passing the, signal 82 at full speed, and thIs w1ll6bviously be determined by tlIe circlimstances of the location."

To understand the force this last citati911, it,lllust be noted that a2 l\nd a3 are the insul,atiops the:track section, and

of

912

87

therefore the "insulateq to be inserted. "in one line of rails only," cannot be coincidQnfwitb either end insulation, but must have an intermediate position,as,' indeed, the dra:wings show and the specificati<)ll directs. , , alleged of the, tllirdandfoprth claims of this patent. These claims are all follows: .'
The combination, substantiallY-all heri'!lnbefore set, forth, of a railway track divided Into two or more signal.' sections, a signallng apparatus actuated or controlled by 'an electro-magnet, alld: plac(Jd at'the entrance of each one of said signal sections, a circuit closer COntrolled by, a mov1ng train, which acts tdeXhibit a danger actuating current from the electrornagnetduring the flmlfoccupied!'by,tbe tra1nln traversing the section guardedby saill siglial, and a clrcu'ttbt'eaker',controlled' by the moving train, which a,cts to continue the e!ll!hlhition of ,Midi danger' signal by interrupting the cUrrent through Its, electro-magnet durl'ng the time' occupied by the train In traversll)g a determinate portion 'of the next succeeding signal section. "(4) Thec01llbination, substantially In!' llerelnbefore set forth, of a series of two 61' more norlpillly closed railway signaling circuits 'and a series of .circuit breakers, one for each 'CirCUit, each breakers Is actuated or controlled by an electro-maghetililClttd'ed' In the next circuit In the series."
. '!, ;, . ' \' ., "

The secoI\d Gassettpll,terit, 246,492, dated August 30, 1881, like its fellow, is based of signaling, andWmakes -as to the prior state of the arh\s was made by the' eat:lierGassett patent.· It contains this recital and statement of invend6:fi:: .
','In letters patent' the UdltedSta1:esNo. 233,746,'g,anted to me October '1880; I and claimed a electric circuits and apparatus, in which !the several 'circuits appertainlng:to: the different 'signal sgctlons, of each,otber, liS in the ordi· na.ryarrangelllent" ll-re made ,to ,!lct to ,a certain exteJ:it qependently; so that wlljle each s,lgnal Is, as under the direct control of It train which ttaverslng the SllCtiflll appertaining 'thereto, It is also under the Indirect control of' thllsainehraln throughU;he agllney of the next ;sIgna:! circuit in the series durlJ'lgrtllll,time th!! sald.:trllIJl is traversing 'a certaiy. ,portion ,' of, th, e nlfXt ,s,lgn,a,.J, ",s,e,c,tiOD. My,pre!i,ent, .invention con,slsts of an iUlprored organization of circuits and appar!!:tus, whereby the same result may be obtained' in a more reliable and efficient m*nner."

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patent, thebYiS a mere improvement uponllis first inventlO;J;l i*:arrangement pf.Clrcuits,l;I,nd apparatus. It involves of sJ?edal fqr1attl).ip,lllg, patent, as wellave the insertion of 'Hnlilul;ltedsplice," b2, "in ,one line of railsonly/', directs the insulating splice, b2; to be ptlHn'both rails,ltfthe same point, and the purpose of the change is thus stated: '
"Addltiona:l 11Hllllated"splices, 'b'2,M, are Inserted in both lines of rails at some suitable intermediate point of the signal section, Whereby each signal section Is ,divided "Into two supsectioDS, constitutiI\g t:wo cQlllplete ch'cuits, wh,lch are Indepen4l:)nt of each other.'.' '',

The· special >electro·magn'E'ft, 102; and the peCUliar adjustment bethe, Gassett patent,areaosent from the second patent. A breaker'is placed jn alternate signaling circuit ,of the series, and these circuit iil'the adjacent sign81h1gclrcuit; 'while in No. 233,746, circllit

UNION SWITCH &: SIGNAL CO. V. PHILADELPHIA &: B. R. CO.

913

breakers are located in each and every circuit of the series. There are other differences in details which need, not be mentioned. The result attained is the same as that aimed at by the earlier patent (No. 233,746), namely, the cdntinued exqibition of the signal set to danger at the entrance of the track section, "while the train is passing over a certain portion of the next adjacent section ahead." The action of the train is thus stated in the specification of the second patent:
"Thus, it will be understood that the danger signal of each signal section is automatically the passage of a train over that section by reason of the successive shunting and the consequent of the electro-magnets, c and m, and that the exhibition of a danger signal is conduring the passage of the same train over a certain portion, viz. the adjacent subsection, of the next signal sectlon ahead, in consequence of the interruption of the circuit by means of a circuit breaker controlled by the train whlle traversing the last-named subsection."

The'direction here given as to the extent of the overlap to be ob· tained is precisely the Same as in the first Gassett patent, namely:
"The insulated splice, b2, may be placed at any desired point between A2 and AS, according to the circumstances. In practice it is usually preferable to place it at a'distance from the point a2, at the entrance of the section, which is equal to the maximum distance required in order to stop a train which has passed the signal 82 at full speed; and therefore the proper distance will necessarily' be determined by the circumstances of the particular location."

Infringement of the third claim of this patent is alleged. claim is as follows:

That

"(3) The combination, substantially as hereinbefore set forth, of a secondary circuit for actuating an electro-magnet controlllng the movements of a signal, two independent circuit breakers placed in said secondary circuit, and two independent primary signaling circuits, respectively controlling the action of the said circuit breakers, which primary circuits are themselves actuated successively by a train while traversing the signal section protected by said signal."

We turn now to the Westinghouse patent, No. 270,867, dated January 16, 1883. Infringement of the fourth claim of this patent is alleged. That claim is as follows:
"(4) In combination with a track circuit and a relay-magnet therein, a signaling circuit opened and closed by such relay, and at least .two signais in such s.lgnaling ci.rcuit, one of which is arranged at or nearthe entrance end of such track circult,.,and the other at the required distance to the rear for safety, substantially as set forth."

The nature of this invention is concisely stated by the plaintiffs' expert (Mr. Waterman), and his statement may be accepted as substantially correct. He testifies thus:
"This invention, like those of Gassett, is founded upon the Robinson system, specific mention thereof being made In the specification. And It has therefore, in common with that system, a division of the track into blocks by the Interposition at Intervals, in each line of rai's, of Insulating pieces, which break the electric contimiity of the rail. At 'ali other points the ralls are electricaJly connected. Each block has, like the Robinson system, a battery with its poles connected. to opposite ralls of the bl()ck, and Iln electro-magnet having its likewise connected to op,posite rails, thus forming, for each block,' a normally closed circuit. Heferriilg to Fig. 1, the successive blocks Into which the track)ls'dh'Ided are shown at. Rl, H2, R3. the location F.-58

91;4

,,"" . n

of qy ,r1, rl.. T,hg l!leveral batteries conn,ectedto the rails of each"j:'JlocJt,a,re tlesignateda1: the main-track magnets are c4,These magne'ts act ;as· relays, making or breaking contact by means i I:lf:armatures, sl, 182; ,s3, 84. The' several :circuitll 'of the signals are designatetH Qy, the main magnets, as circuits 1, 2, 3, ,4. ,eirc.ultNo. 1, being' controlled by the first' section' of the track, contain!!' three Signals, b, d, d2, teceiving 'currellt from batte'ry d1, as shown. Circuit No.2, and also the remalninlfc!i.·ci.tits, contalnfout signals, those of circuiL:No.':2being.deslgnatedbl,b2, d1;jd4. AU ,these signals, are so arranged that normally a current flows through them, and they are held at the when, trl;liu /letion, the current ceases to flow in tIle mlijn"trackmagnet, a'tId the circUitbreaker'brellks the .circuit of the signals SO ,that' no, current flows through them, danger. Supposing now, a we will 'calf'No.1,' to enter 'sect!cmRl, proceeding from right to left. ' Its wheels and, a:fies' will divert the Current from magnet cl, causing circuit breaker sl to opim'clrcuit No.1, thereby setting the signals on that ,circuit to danger, arid a train approaching from the rear cannot enter block R1, but must stop and walt"because the signal b, which is the lower of the two signals at the entrance to block R1, is at' danger,indicating by its p,osition that train No.1 is uPQn.,plo,ck Rt. When train No.1 enters block H2, its is de-energized, causing circlJit 2 to be, broken at s2, thereby setting to danger' signals b1 and b2 in its I rear, and signals' d1 and d4 In Its front. The engineer of traIn No.2, seeing signal b go to safety, and signal hI go to danger, will know, by reason of the fact ,that b1 is the upper signal, that train No.1 has passed on to section R2 in advance, and that he may proceed with caution. At the same time, if a; train (No.3) should be on block R4, it will find signal d4 at danger, indicating to the engineer of train No;' 3 that train-No.l,ls upon block R2. As train No. 1 runs onto block RB, it sets behind it signals b3 and b4 to danger, signals b1 and b2 returning to safety; and the eI\gjpejlr of train NQ. 2 on, block Rl, finding only one danger sigriil:1 at the entrance toJ bliOek:R2,ahd thal' signa] the upper one, will know that train No, 1 has passed on to block R3, and that he may still .In theappli9ation of the, system to a double-track proceed with to omit the forward signals." road, iUs evident tQat it is

This patent nwanot 'our attention. It is not sary to considel';the question ,of its allegedjnfringement, or the question whether claim 4 shows ;patentable novelty, in view of the Robinson patent and the state of the art prior to Robinson's ioven" tion,' A complete defense on other ground appears. This as we have,seenf was issued' ol! i January 16, 1883. Assuming that it was applied for on November 16, as .alleged, no earlier date than tbatean be accorded to, Westinghouse. :Now, the proof is clear that more than two years before the last-named date the in" veiltiondesc,rl'bed ;in 'the' 'Wet;tinghousepatent'3;nd , covered by 'its fourth clairii,': was in pi'aCticaland' 'public bna,'portion:"'-a1:)o'q't 10 miles of track-of the Chicago, Burlington &. Quincy Railroad, near the city' df iChicago.' 'Th(HnstallaHon of tliik signaling system upon that railroad was the wt,>rk fif the Union: Electric Signal Company (the plaintiff's predecess6r ,In business) tinder Ii written contract entered into In' September, 1879., The work was completed in rigust, · of by' 9hicago, Burlingtqq,& QUlIlcy ,yo)llpaby,:))ll, Oc;tqpel' 7" 1880., The '" apparatl),s w3;s operated by that. for a period; of about two years. This installation was an embodiment of the invention of the Wesfingho-usepatent in a: completed and operative form. The use was public and practical, and was continued qntU' about 1883. The only reply' attempteti to :be ,made to" this that this

UNION SWITCH & SIGNAL CO. V. PHILADELPHIA &: R. R. CO.

915

use upon the Chicago,' Burlington & Quincy Railroad was in the nature of an abandoned experiment. This suggestion is unsupported by the evidence. It is against the clear proof. The apparatus, indeed, was up at the expense of the signal company on trial to satisfy the ,'railroad company with a view to a sale to that company, and the, company declined to buy. But in no other sense was the e;perimental. Furthermore, it is shown that an article on the "Union Electric, Signal System" was printed and published in the "Railroad Gazette," a, trade newspaper published in New York and Chicago, and having a general circulation among railroad people and those connected with railroads, beginning with the number issued 12, 1880, and ending With the number issued on April 2, 188(}, which contained a substantially complete description of the invention of the Westinghouse patent. I can see no patentable difference between the subject-matter of the fourth claim of the Westinghouse patent and the description contained in the publication in the Railroad Gazette. That article was not in the nature of a trade circular addressed to the customers of the signal company, but was a publication to the world,and intended for general circulation and information. The defendants' signaling apparatus nOw demands our attention. The defendants have employed two forms of apparatus, but they are, substantially alike, and a description of one will answer fol' both. The defendants' line of rails is divided into blocks or track sections, insulated from each other, and the signals are operated according to Robinson's closed circuit system, which has been free to the public since 1889. At the entrance end of each track section two signals are placed on the same post. One is the block signal for that section, and is denominated the home signal. In this record it is designated signal H. A series of H signals guards the entire line of railway, each H signal guarding its own track section exclusively. Each signal circuit is independent of the signal circuits of adjacent track sections. The other signal at the entrance end of each track section, is denominated the "distant signal." In this record it is designated "signal D." Its purpose is to give preliWinary notice to an engineer of a train about to enter a block of the then condition of the second block or track section in advance. To effect this, an indicator wire is run back from the track section in advance to the entrance end of the track section in the rear, and is put in electrical connection with the D signal there. The H signals are alone depended on for blocking the train. The D signals are cautionary, giving the engineer an indication of what he may expect when he reaches the entrance end of the track section second in advance. In' 'the defendants' apparatus, with everything in good order, and with the track free, all track circuits are closed, all signal circuits are broken, and all signals stand at danger. In that situation let 'us illustrate the operation:' The initial track section may be designated as "A," and the two following ones as "B" and "C." A train entering upon section A would put tosa!fety both signals at the entrance end of section B, and, also signal H at the entrance

e16

/,

87 FEDERAt' REiPQRTER.

epd of 0, if the, track were in, normal -condition. Whep the train reached the, entrance "end, of section B, .if the engineersholild find signal H at safety, he would thereby learn that there was no train on section IJ. If, ,he shouM. fin<;1 that D was also at safety, he would thereby learn, that tMre waS. :p.o train on section 0, the second ,section ahead. The engineer would then be at to a,tschedule speed: When the train entered section 13, it would put to dallgerthe two signals Hand D at the e:ratrance of that section,and, keep them at danger it was on thatsectio,n. As soon the train, had passed beyond section B, the.signal H, at the ent);ance of that section, would be returned to safety, but the signal,n would remain at danger. If at this a second following on!lection A should apend of section B, its engineer would learn proach from the safety position of the home· signal(H) 'that ,section B was clear, and from the d,anger position of the, distant signal (D) that the second section in aavance,section 0, was occupied. Under these circmp.stances, the engipeer might proceed with caution with his train under control, so as, to, fltoP ,at the entrance of section if the home' signal there should show !langer. The result, .therefore, is this: A train, on entering a track section (say, B), leaves behind it the two sIgnals H, andp at the entrance at danger; and, when it entElrs the next track selition ahead (say, C), it leaves behind it ,the H andD at the entrance ofthat section" and, also the signal D one whole block to the rear, as a cautionary sigl1al to indicate t(} the engineer of a following train that the first train is on the second block in advance, section O. And this is repeated" from block to block. The only reason for having the signal Dshow danger when the signal H,' on the same post is at danger is to :avoid confusion. 'lf signal l D thell stood clear, the engineer might' possibly be, Illisled. By repeating the danger showing of its companion, signal' J;I, possible mistake is averted.' At this juncture' the function ofsignal D is not brought into play at all. For practical pUrp(}ses it might as well be absent. The real function of signal D begins' when. the train has, ,passed into the second section ahead, and thell,it ,a.ntlqpnces the GQndition of that section to the engineer, who Is whole block to the rear. Upon this (Mr. Waterman) truly says: subject the plaintiff's own

°

a

"'The only time when the does not know exactly what his distant signal means Is the time when It :rpakes no difference whether he knows or not, namely, the time when the 'adjacent home signal Is at danger. In effect, therefore; thlfUs not doing ,anything more than would be done It a covering "could be dropped dOWn over the' distant. signal, so that in effect It could be removed altogether."

the defendants' home siguals or in, the manner of their operation. Clearly, to that extent the defendantlil have simply followed RobinBon's system, ,a$ described and, illustrated in his expired pateqt. The alleged infringement of the GassettpatentB by the defendants lies in their use of. the distantsignals,-the series, (If signals D. These distant signals, shifted, and operated under

It is not pretended that any such infringement is to be found in

Do the defendants infringe the Gassett patents, or either of them?

UNION SWITCH &: SIGNAL CO. V. PHILA-DELPHIA &: R. R. CO.

917

train action by RobillSOn'S method, and not otherwise. Here, then, nothing is b9rrowed from Gassett. The supposed violation of the plaintiffs' rights consists exclusively in the fact that the distant signal D is set to danger while the home signal H on the same post makes that showing, and that it continues at danger during the passilge of the train over the second track section in advance. Does this afford any fair groupd for the charge of infringement if we regard the substance of things? The office of the distant signal is solely to give warning to the engineer of the following train that the track section second in advance is occupied. Its function springs into action when the forward train enters on the second section ahead. The D signal does not guard the section at whose entrance it stands. Its functional relation is to the section second in advance, and it is in electrical connection with that section for the purpose, and only for the purpose, of preliminary announcement and caution to the engineer of the oncoming train when he is a block's length rearward. . Again, the system of home and distant signals was old, antedating Robinson. Now, plainly, Robinson's method, no less than the track instrument method, was applicable to the working of signals standing in the home and distant relation. It is not to be doubted that to add to the apparatus shown in Robinson's patent a signal to repeat at a distance to the rear the showing of the block signal would have been an obvious expedient to a skilled electrical engineer, even had the patent been wholly silent with respect to the employment of additional signals. The patent, however, gives express directions for carrying a wire from the electro-magnet which controls the block signal to a distant office or station to indicate when the signal is operative. This particular use is put as an example only, for the patent adds: "Thus, any desired number of signals may be operated simultaneously at different points from a single section of track." Clearly, this language points to and covers the employment of a distant indicator signal. The British patent says that lines of wire may be used to operate additional signals; "for instance, to indicate when the block signal has changed;" In view of these suggestions, certainly no invention was involved in carrying back a wire to a signal at a distant point in the rear to give cautionary notice to the engineer of an approaching train of the condition of a forward block. This, then, is a legitimate exercise of Robinson's invention, now open to the public. Moreover, the feature of preliminary notice to a following train of the condition of the track section second in advance is not taken from Gassett. It is altogether wanting in Gassett's patents. In the working of his apparatus, the engineer, when stopped by the danger showing of the signal at the entrance of a track section, cannot tell where the forward train is, whether upon that section or upon the overlap in advance. Gassett has but one signal for each track section, and that signal, if at danger, acts as an absolute block upon any further advance of the train until the signal shifts to safety. What, then, was Gassett's real impI:ovement in the art of railway signaling? As we have seen, Robinson had devised. a closed track circuit method, which gave complete and continuous train control

lH8

87 FEDERAL R'Ei>ORTER.

OVl'!r signals, The problem to whfehGassett addressed himself was to introduce an overlap into a Roblnsoil operated system, by continuing in action the danger signal at the entrance of a signal section after the train had left that section, allll while it was passing over "a certain portion of the next adjacent section ahead." It is insisted that Gassett contemplated the continuance in action of such danger signal during the passage of the train over the whole of the next ad· vanced section, Wh,ether or not hecbnsidered this to be desirable is immaterial. B:e suggested no means: for accomplishing such result, Nothing cail be plainer than' that' Gassett's novel' organization of circuits and apPl;lratus, tbeoriginaJand in the im-proved form, was intended and devised so as tosec}il'e the continued exhibition of thf; 'danger signal at tbe entrance of a Plock whilethe train is traversing a defiri;ite portion on1y, of. the, next, in advance, To'attain ect, ea'c,h ,;of' his patents 'disclosed specific means, It may here ,be remarked that neither of patents sb,ows a piqneer in"ention, The proofs that devices for a train from relircollisions'by meafisof overlaps and the setting o( two danger signals:behind the train were old in the erlap int? a art,',' Gas,S,ett roa,shave be,en the fl.,lfS't,, f,o RobulSOD system; but" if Sq,_,hIS patents''Conferred on hIm the exclusive rIght only to use the he specified to produce the described result; and anyone may'lawful1y accomplish the same end, without infringing the patents, if he uses means substantially different from those described., " O'Reilly v. Morse, 15 How. 62, '119., Now, whl.leIt is true that Gassett'and the defendants both aim at the same general ,object, namely, secv.re t9 the train in ad· vance, ,as againsfa' train follOWing on 'the saine track,yet the special purposes they respectively have in view.are quite different, as also are their respective organizations of circuits and apparatus. Gassett's achievement was a forward 'overlap,effected by a peculiar ment of circuits,wh'ereby tbe action'iOf the danger signal at the entrance of the is prolonged after the train has gone beyond' that section" ' improvement basino relation whatever to distant the guidance of the engineer of a following cautionary signals' train. On the other hand, that part pf'the qefendants' apparatus complained of to the of distant Tqe specific means employed by Gassett, such as the insu,lated splice, b2; whether inserted in one.Une of rails or in both lines of rails, the sp electro-magnet, C2, and its peculhlr adjustmentw'ith its arma· yial ture, d, the division of ,each signal section into two SUbsections, and of adjacent signaling sections, are absent from the the defendants' organization. After a patient investigation of thesubject, I ca;nnot do qtherwise than hOld that, in structure, operation. purpose, and' result, th'ese'two organizations of signaling circuits ,!1Pd are.. different, arid that the defendants are Gassett not shown to have mfrmged eIther Qf We are now brought to the of the fourth patent em· in this bill, na,niel;t, No,: 2.27',;1;02, dated May 4, 1880, to Oscar Gassett andIsrael Fisher; for an improvement in connectors for electric track Circhits.The speCi1icatidtidescribes the invention thus:

to

His

SWITCH & SIGNAL CO. V. PHILADELPHIA & R. R. CO.

919

"Our invention consists in punching or drilling holes in the flanges of adjacent rails at convenient points near, but so as not to interfere with the rail joint, and driving into these holes the ends ,of a wire connector long enough to reach between them and span the rail joint, the said connector being provided at its ends with driving studs a trifle larger in diameter than the holes and tapering; so that, when they are forcibly driven into the holes in the rail, they form a perfect and permanent contact therewith, and, 011 account of the taper, fit so tightly that they cannot be driven out or removed except by a sveclal instrument for drawing them, thus removing from them any scale or loose or tarnished surface;: and leaving the surface thereof bright where it comes in contact with the rail, such bright metallic surfaces, forced insuring a perfect f!lectdc connection. The ends of the wire connector are' coiled' around the said driving studs just under their heads. and the whole then dipped in molten solder or other suitable metal."

The specification adds that "a connector of this kind is cheaper and more reliable than one applied by soldering or clamping." 'fhe claim alleged to be is the first, namely:
"(1) The combination, with a rail bored to receive It, of a wire prOVided at its ends with a connected driving stud. to' be driven Into the said rail to form a continuous metallic cOllductor therewith for' an electric current. sUbstantially as described."

The alleged infringement consists in this: The defendants bore a straight hole in the rail; then take a longitudinally grooved tapering stud, lay the end of a piece of wire in the groove, and drive the stud with the wire in the groove tightly into the hole. From an examination of the prior patents in tpis record, and the general proofs relating to this subject, it is very evident to me that, if the Gassett and Israel patent is to be sustained at all,.it must be narrowly construed, and 'restricted to the identical device desci'ibed. Now, the only way of connecting the wire with the driving stud here suggested is b,y coiling the wire around the stud, and then soldering it. The coiling of the wire around the driVing stud is essential to the described device, and, perhaps its on.ly patentably novel feature. But the defendants do not coil their wires' around the stud, and, indeed, they do not, in the sense of this patent, connect their wires at all with the driving stnd.They simply lay their wire lengthwise in a longitudinal groove formed in the side of the stud, and the stud with the wire laid in the groove is then into the hole in the rail. The result really is a clamping attachment or connection between the wire and the rail. Clamping, however, in effect, is disclaimed. Under all the proofs, I am thoronghly ,convinced that the defendants ha:ve not infringed this patent. As, therefore, the defense of noninfringement must be sustained, I do not deem it necessary to consider the other defenSes to " , , ' this patent. Wereach,finally, patent No. 273,377, dated March 6,1883, to Charles .J. Means, for improvements appertaining to electric railway signals. Infringement of the sixth claim of thi,s patent is alleged. That claim ' reads thus:
"(6) The combination, with the conducting wire, U. of the split plug, X, and railroad track, Q. substantially as and for !he purpose set forth:'

'l'he part of the specification upon which this claim is based is as followS:

920.

87

REPORTER.

Q, by means of a spring pIng, X. This plug Is tapered, and has a hole In the center just the size of wire U. The end of, the plug is slit like the plugs used for making connections on switch boards,so that, when it is driven

"The other end of the collslo! .electro-magnet, K, Is connected to the rall,

forcibly .into a hole drilled in the rail, it clamps the wire, making a reliable electric connection."

are here set up,but none of them sa-ve that of JJ.oninfringement need be considered., Mqstclearly, the defendants do not infringe this patent. Their plug has no hole in the center; it is not split; it is not a spring plug; and has no spring action. let a. decree be drawn dismissing the bill of complaint, with costs.

WALES v, WATERBURY MFG. CO. (Circuit Court, D. Connecticut.' June 20, 1898.,
P .uipPnOFIT8.

Where executeq a Ucenl\e, .to, (j.efendant, but, after defendant began to manufacture thereunder, canceled the license, and defendant continued to manufacture and sell the goods, the measure of damages Is not to ,be,:!letermlned by tM J,i<len$lt fee, .but by the actual profits of de.
'!

This was 'a,suitin equity by H. Wale!:> against the Water· bUry Manufacturing Oompany forillleged infringement of a patent. The cause ""as heard on exceptions'totbe master's report. Henry Stoddard and Roger'S. -;J3aldwin, for complainant. , Oharles ';Lt InJ;tersoll, Geo. E,'Terry,and John K. Beach, for defendant. TOWNSEND, District, Judge. In this cause, upon final hearing, the court held thllt certain claims of the patent in suit were infringed, ,an accounting. 59 Fed. 285. and referred the matter to a master The questions llerf;lin arise upOn .exceptions to the master's report. Thepateqt waljl for an improved buckle.' Complainant gave defendant a Ucense to manufacture said upon paymentpf a royalty of 15 cents a gross. The pucklewaaalso used in connection with a clotbing, and, fOf each gross of pencil holder to be .attached to buckles and: holders combined, defendant agreed to pay a fee, 'graped according to theseUing price, and amounting to $2.03l where the selling price ""'AS $5.08 per gross. After defendant had commencedto,manufactllre! complainant canceled the: lieense. Defendant continued to manufacture, and complainant brought suit. The lice;nse w"scanceled in June, 1881. The bill was pled in November, 1881, apdtbe.answer was May, 1882. Complainant first tO'take evidence se,veq years later, and brought the case to the court for a final hearing in 1893, after the patent bad expired. Oomplainant in the meantime made no attempt to manufacture. Defendant manufactured 15', 1881, and January 18, 1893, 11,609 6 / 12 gross of buckles, of eight different sizes and prices, 9,561 of whicll,were made in pencil: holder. Large profits were made on No. 1,403, which was used in the pencil holder.