beyond the axis of the fly wheel, the valve arm will be turned so that the rudders will tend to swing the torpedo back to its true course. This alternating action will tend to direct the torpedo on its true course, as indicated by the axis of the fly wheel. When the valve arm is turned, compressed air is admitted to one end or the other of the cylinder of the engine, and the rudder is thereby turned to port or starboard. The essential fact to be observed is that "the relative movement between the axis of the torpedo and the gyroscope wheel when revolving operates the valve of the steering engine, giving motion to the steering rod; the steering rod, by suitable mechanism, operates a pair of vertical rudders, by which the horizontal direction errors of the torpedo are controlled." But it is not important what the steering mechanism is. It is in detail totally unlike that in the Howell torpedo, and is actuated by a different force and totally dissimilar appliances. The vital element is a stable pin in a stable ring, against which a valve arm, moved by the deviating torpedo, of which it is a part, presses, so as to open a valve and set the steering gear in motion. This stability of the pin in the ring is established by the revolving fly wheel, and depends, upon its power; but as the power fails, and the stability of the ring is diminished, the valve arm is pressing against a yielding pin, and, of course, its ability to open the valve is decreased. Now, the pin can only yield when the ring in which it is inserted yields, and such yielding is resultant motion, and is the resultant motion upon whose existence the operation of the steering gear contemplated in claim I is dependent. In the Whitehead torpedo the nonexistence of resultant motion, so far as the same can be achieved, is essential to the desired operation of the steering mechanism; in the Howell invention the existence of such motion is at once the occasion and primary cause of the operation of the steering mechanism, without which the steering gear would be passive. This is well expressed in the specification: "Under these conditions the axis of resultant rotation, or motion due to the application of a laterally deflecting force, will be the longitudinal axis of the torpedo,-in other words, the torpedo will roll; and this rolling can be conveniently availed of to bring into action steering mechanism arranged and operating to apply automatically an opposite deflecting or deviating force, which will restore the status quo. As soon as the rolling ceases, the steering mechanism becomes inactive; but until then it constantly offers to the deflecting force an opposition which in the end overcomes and suppresses it." Complainant was understood on the argument to contend that, as the stability of either ring in a gyroscope can be possible only when resultant motion is possible, the stability of the ring is traceable to resultant motion. Stability is not the effect of resultant motion, nor is it dependent upon it. Stability of the rings depends solely upon the rotation of the fly wheel undisturbed by friction or extraneous forces, and is the normal condition of the gyroscope in operation. On the other hand, resultant motion is error, fortuitous and undesired rotation of the fly wheel on a second axis, the revolution of a ring, all produced by the introduction of a new force foreign to that under which the fly wheel was operating. The Whitehead steering gear depends upon fixity of axis, and rings, unaffected by an extrinsic force; the Howell steering mechanism depends upon the introduction of an outer force that shall destroy such fixity, and produce abnormal operation of the gyroscope, and cause the ring to change that status which the revolution of the fly wheel tends to produce. The possibility of resultant motion is indispensable. Its occurrence in the torpedo is a detriment. In the Whitehead it tends to baffle the operation of the steering gear; in the Howell the evil is turned to its own correction. But it is urged on the part of the complainant that perfect stability of the outer ring cannot be secured, and that there must be some resultant motion. To this again and finally it is answered that such resultant motion is the effect of the valve arm pushing against the wheel, and the yielding of the wheel is an infirmity, tending to debilitate or destroy the operation of the steering mechanism; but in the Howell torpedo such motion is the first source of the movement of the steering gear. To Admiral Howell belongs the distinguished honor and service of suggesting the use of a rapidly revolving fly wheel for the purpose of giving fixity of direction to a submarine boat, and for the purpose of steering the same by employing the motions resulting from its disturbance by deviating forces. That is, he made the fly wheel and torpedo parts of a gyroscope, that either maintained its normal position, or automatically made use of its instability to right itself. Such is claim 1, giving it a construction that shall not limit it to the steering mechanism described in the specification to which the claim refers. Admiral Howell did not perceive, so far as can be gathered from the record, that a gyroscope proper could be mounted in the torpedo, complete in itself, and using no part of the torpedo in its combination; hence uninfluenced in its normal movement by any disturbance of the torpedo, and therefore not subject to sensible resultant motion, but in its turn remaining so fixed in all its parts as to influence the course of the torpedo by causing its steering engine to operate when its valve arm came in collision with the practically stable pin in the outer ring. Even if this advantage was observed by Admiral Howell, it was excluded from the claim under consideration. The steering mechanism used in the Whitehead torpedo shows a meritorious advance in the art, and may not be condemned as an infringement of Admiral Howell's invention as expressed in the claim. The complainant's bill must be dismissed, with costs. INTERNATIONAL TOOTH CROWN CO. v. HANKS DENTAL ASS'N. (Circuit Court, S. D. New York. October 31, 1901.) 1 PATENTS-VALIDITY-USEFULNESS OF INVENTION. The degree of utility of a patented article does not affect the question of patentability, nor does the length of time it will last and continue useful, but, if it is useful at all, that is sufficient to sustain the patent. & SAME-ACTION AT LAW FOR INFRINGEMENT EVIDENCE OF USEFULNESS OF INVENTION. In an action at law for the infringement of a patent, upon an issue as to the usefulness of the patented article as affecting the validity of the patent, the jury may consider the fact that it has been used by defendant if they find that he has infringed. 3. SAME-CONSTRUCTION-Support FOR ARTIFICIAL TEETH. The Low patent, No. 238,940, for improvements in dentistry, relating to a method of inserting and supporting artificial teeth, construed in a charge to the jury in an action at law for infringement. 4 SAME-INFRINGEMENT-MEASURE OF DAMAGES. In fixing the damages for infringement of a patent, where it is shown that the patentee had an established license fee for practicing the invention, it will be taken as fixing the measure of damages, notwithstanding he may have accepted a smaller sum in settlement with licensees who were in arrears, or made a reduction therefrom, where license fees for a long term were paid in advance. Action at Law for Infringement of Patent. LACOMBE, Circuit Judge (charging jury). It is a very mistaken system of jurisprudence that leaves the decision of the issues of fact that arise in a patent case to a jury. In the very nature of things, it is extremely awkward and difficult, and many times practically impossible, for 12 laymen, untrained in the examination of the intricate questions which so frequently arise in patent causes, without any facilities for taking notes, and with no opportunity for the lengthened reflection which is frequently necessary to reach a wise conclusion in cases of this kind,-I say it is many times practically impossible for them to dispose of such questions. Nevertheless the law does allow the trial of these issues by a jury, and we have one to try here. It very rarely happens. I have sat on the bench for 15 years, and this is the first patent cause that I have tried with a jury. But, very fortunately for you and for the interests of the litigants in this case, the patent before you is quite a simple one,-easy to understand,and the issues presented are easy of comprehension, and may be presented to you, I think, sufficiently well for you to understand them, and perhaps will not give you much trouble. In order to show what questions of fact come before you, how much you have to do with the case, and how much the court has to do with the case, let me call your attention briefly to what a patent is. It is the policy of the law in this country, and had been enacted by congress, under the powers given to it by the constitution, that if a man finds out something new and useful,-a machine or combination or process or what not, something new and useful,-and publishes it to the world through the intermediation of the patent office, he shall in exchange for it, and as compensation for doing so, receive a patent; that is, he receives a grant of a monopoly of manufacturing, selling, and using that particular invention for a certain period of time,-17 years. That monopoly is not a monopoly in the sense in which the word first came into the English language, where, without anything at all except the mere whim of the sovereign power, some extraordinary privileges were given to individuals. The man who holds a patent monopoly has earned the right to the monopoly, because he need not have invented the novelty unless he chose, and having invented it he might have kept it to himself if he chose, and his fellow citizens and the community at large would be without the benefit of his discovery. Therefore there is nothing obnoxious to law or good morals or to anything else in the fact that a patent secures to the holder of it a monopoly for a limited period of time. That monopoly is secured to the individual by a document which is issued by the government, and is called "Letters Patent," a written document, that is, a printed document, accompanied generally with diagrams, and in the document it is stated specifically what the invention is, and what it seeks to accomplish, how it is constructed, and how it works; and also there is set forth what exactly it is that the patentee claims to have been his new and useful discovery or invention which he wishes to retain the monopoly of, and which the department, by issuing the printed document, says he shall have a monopoly of. Just exactly what that document means-what invention it is which it secures as a monopoly to the individual—is a question of law for the court, and one with which the jury has nothing to do; and therefore, when we come to that stage of the case, it will be my duty not to give you this written document, to try and make out from it what it means, but to tell you as tersely and succinctly as I can just what it is that is granted to the International,Tooth Crown Company, which is the assignee of the original patentee. When you are instructed as to what that patent means, the question of fact for you to determine will be whether what the defendant has done is an infringement of that patent; in other words, whether what the defendant has done is really the practicing of the invention which is disclosed by the patent. But, before we come to that question of fact, there are two other questions of fact which have got to be decided and passed upon by you. The statute provides that patents shall be given for new and useful inventions. Whether an invention is a new one or not is a question of fact; whether the invention is a useful one or not is a question of fact; and both those questions have to be decided by the jury. The question whether it is a new invention-whether it is novel-divides into two branches. In the first place, was it anticipated,-that is, was the same thing done or known before? and, secondly, if exactly the same thing was not known before, nevertheless were there other devices known to the public, known in the art, so near this that it needed no inventive skill, no inventive ability, to make the improvement of the patent, but that any mere workman possessed of the ordinary skill of the handicraftsman in that particular art would naturally have made the changes or improvements himself on the existing structure? As to the first branch, whether this was new in the sense that nothing just like it ever existed before,-in other words, that it was not anticipated, I can relieve you from any trouble, because there is no testimony here which shows what is known to the patent law as "anticipation." This device shown in the Low patent, and claimed by him, did not exist, so far as this testimony shows, before he came upon the scene. It is contended by the other side that, although that be so, nevertheless there were other devices, such as the Bing patent, or Bing bridge, known to the art, and that any workman, with the ordinary skill of his calling, would have known enough to make changes or modifications in them which would have secured this very Low device. In other words, that in finding out, devising, this concededly novel-because it was not anticipated-invention, Low did not really exhibit the skill of an inventor, and therefore there is no patentable invention in the device. That is the claim of the defendant. That question is a very unfortunate question ever to have to submit to a jury. For years the intellects of jurists, trained by successive examination of repeated cases, many of them each year, bearing upon this general matter of patents, have been sharpened in an endeavor to lay down some satisfactory definition as to what is and what is not patentable invention; and so far as my reading goes, and so far as my own judgment goes, I have not yet read any definition which is entirely satisfactory to me, and the best that can be said is that it has to be left as a question in each particular case to be determined from the facts of that case; and barring some general principles to guide us, such as the fact or the circumstance that the new device went into general use after it was made known, which would indicate that it was sought for by the public and desired by the public, —and if it was desired by the public, and no one had found it before this man, the assumption may be that the other skilled workmen. did not have the gift to devise it, except, I repeat, for such broad generalities as that, there is very little that can be set up in the way of signposts for the guidance of a jury on the question of invention. It varies, of course, a great deal according to the character of the art in which the invention is alleged to have taken place. Upon this branch of the case all I can do is to leave the matter in your hands on the statements that we have had here as to what the former devices were, and on the statement which I shall give you when I come to charge you as to what this invention was. It may help you in reaching a conclusion to call your attention to the fact that the patent, before it was granted, went through the scrutiny of the officials in the patent office, and that the mere grant of a monopoly-the grant of a United States letters patent by the general government-carries with it the presumption that the invention is a novel one, and that presumption lasts and goes with the document wherever it is presented, until affirmative evidence introduced in opposition does away with the effect of the presumption. In other words, in this case the burden of proof is on the defendant to show you that although the patent office gave this document to Low, and through him to the plaintiff, as a conveyance of the monopoly, upon the theory that he had invented something new, nevertheless it was not novel. The burden, I say, is on the defendant to convince you of that fact before he can recover. I might also say that the province of the court and the jury is not quite so sharply differentiated in the federal courts as it is in the state courts, and our practice conforms more to that of the English court. I may, therefore, without impropriety say to you that if it were a question with which I were dealing, upon the facts in this case, I certainly would feel great hesitation, upon the evidence in this case, in reaching any conclusion which would overthrow the presumption which accompanies this grant from the beginning. Never |