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that, if claim 3 includes no cask except one with a check-valve, it is not infringed.

The original specification indicates nothing but a cask having the entrance opening in its bottom, furnished with a check-valve to open and shut such entrance automatically, the cask suspended vertically over the vault and lowered into it until the funnel at the bottom is sufficiently immersed, the filling of the cask in that position, and the raising it and emptying it. The cask in the defendant's apparatus has the entrance opening in its top, has no check-valve, is not suspended over or lowered into the vault, is placed at a distance from the vault, and is connected with the vault by a flexible pipe. The patent to Scharf, No. 158,743, granted January 12, 1875, a year before reissue No. 6,962 was applied for, shows an apparatus substantially the same as that used by the defendant. There is a barrel or tank, in the head of which, as it stands on its bottom, there are two short metallic pipes. A flexible pipe extends from one into the vault, and another flexible pipe extends from the other to an air-pump. There is a deodorizer connected with the air-pump by a third flexible pipe. The cask is filled by the action of the air-pump in creating a vacuum in it. The foul air passes through the cask and the pump into the deodorizer. The barrel and air-pump are described as “independently movable about the vault," by reason of the flexibility of the pipes. The attempted expansion of the original Bull patent, to cover what is shown in the Scharf patent, is manifest. The funnel, (), of the original patent is called, in the reissue, "an induction passage or opening." It is said, in the reissue, that "the movable cask may be located in any desired position with relation to the vault;" and that the operation may be performed "within or near the privy. In claim 1 of the reissue it is stated that “the movable cask may be located in any desired position with relation to the vault and privy." The effort was to obtain a reissue which should cover an apparatus having the cask located at a distance from the vault, with a flexible pipe from it to the vault, and a receiving opening in the top of the cask, and no check-valve-all of them features not indicated in the original patent, but all of them features existing in the Scharf patent granted after the original Bull patent and before the application for its reissue. The same observations apply to the patent to Frazier, No. 168, 473, granted October 5, 1875, more than three months before reissue No 6,962 was applied for. That patent shows a portable receiving cask connected from its top, by a flexible pipe, with the vault, and by another flexible pipe with an air-pump, which has secured to it a deodorizing vessel. The air is exhausted from the cask and passes through the air-pump into the deodorizer, and the contents of the vault

rise into the cask. The cask has no check-valve, and is described as placed suitably near the vault.

The foregoing state of facts brings this case within the principles laid down in Miller v. Brass Co. 104 U. S. 350, and James v. Campbell, Id. 357. The suggested mistake in the original patent, that its two claims were not as broad as they might have been made, and that the combinations claimed were too narrow and contained too many elements, and that sub-combinations such as are found in claims 1 and 3 of the reissue might have been claimed in the original patent, in view of the state of the art and of the description and drawings of that patent, was, if a mistake at all, one apparent on the first inspection of that patent. The expansions in claim 1 and 3 of the reissue were afterthoughts, developed by the subsequent course of improvement in the Scharf and Frazier patents, and intended to cover matters appearing in those patents and not claimed in the original patent, No.: 115,565. No excuse is given for the delay in applying for the reissue, nor is any actual inadvertence, accident, or mistake shown. The omission to claim sub-combination in the combinations claimed, the existence of such sub-combinations being apparent on the face of the original patent, was, in law, on the facts in this case, such a dedication of them, if new to the public, that a reissue, to cover such subcombinations, in revocation of such dedication, cannot be availed of to the prejudice of rights acquired by the public to what is shown in the Scharf and Frazier patents, issued before the reissue was applied for. The reissued patent must, for these reasons, be held to be invalid as to claims 1 and 3.

The circuit court made an interlocutory decree declaring the validity of the reissue and its infringement and awarding a perpetual injunction and an account of profits and damages. By a final decree, a sum of money was awarded as damages. From that decree the defendant has appealed. The result of our consideration is that the decree must be reversed, and the case be remanded to the circuit court, with direction to dismiss the bill.

(109 U. S. 633)

ESTEY and others o. BURDETT.'

(January 7, 1884.)



Claim 1 of letters patent No. 87,241, granted February 23, 1869, to Riley Burdett,

as inventor, for 17 years from August 24, 1868, for an "improvement in reed organs,”' namely, " the arrangement, in a reed musical instrument, of the reedboard, A, having the diapason set, a, and its octave set, b, and the additional sel, L, extending from about at tenor, F, upward through the scale, substantially

as and to the effect set forth,” defined and construed. A reed-board with two sets of reeds and a third partial set was made and put into

an organ by one Dayton, prior to the invention of Burdett, and, such organ

18. C. 3 Fed. Rep. 566.


being put in evidence, it was held that the alleged infringing organs contained nothing which, so far as said claim I was concerned, was not found in such

prior organ. As to claim 2, namely," the reed-board, A, and foundation-board, G, constructed

with the contracted valve openings, D, F, F, and the reeds arranged in relation thereto, all in the manner described,” it was held that, in view of the state of the art, there was no invention in making the length and size of the valve opening greater or less in a reed-board of a given width, or where the reed-board was made wider or narrower, or had more or less sets of reeds in it, either full or partial, and that the vibrating ends of the lowest and longest reeds in such prior organ were as near together as they were in the reed-boards of the alleged

infringing organs. On these views, a decree was entered in favor of the defendants

Appeal from the Circuit Court of the United States for the District of Vermont.

E. N. Dickerson and Wm. M. Evarts, for appellants.
Geo. Harding and E. J. Phelps, for appellee.

BLATCHFORD, J. This is a suit in equity brought for the infringement of letters patent No. 87,241, granted February 23, 1869, to Riley Burdett, the plaintiff, for 17 years from August 24, 1868, for an improvement in reed organs.' The specification of the patent is in these words:

“Figure 1 is a perspective view of one of my reed celeste organs. Figure 2 is a diagram plan, showing the relative arrangement of the reeds. Figure 3 is a vertical transverse section of my reed-board, etc. This invention consists—First, in the arrangement of the reed-board; second, in a method of tuning, by which a peculiar quality of tone is produced, and by which the power of the instrument is greatly increased without an increased resistance in the action, and without an increase of power being necessary to operate the bellows. The advantages gained by my peculiar arrangement are, a greatly increased power and variety of tone. This is effected by the use of an additional set of reeds, commencing at tenor, F, or thereabouts, and running upward through the scale of the instrument, and tuning the same in the peculiar manner hereinafter described. No other reed.musical instrument containing the same number of reeds, so far as I know, has ever possessed so great a variety or pleasing quality of tone, while simplicity of construction, compactness of form, and ease of operation are other exellencies of this arrangement not found in others. I will now describe particularly the construction of that part of my instrument which forms the subject of this patent. The case, bellows, pedals, etc., may be, in general construction and arrangement, like those in common use, and, therefore, no special description is required. The foundation of the reed-board is also constructed in the usual manner, but the reed-board proper, in itself, differs from the ordinary reed-board in the following particulars, viz.. The main board, A, contains two sets of reeds running through the entire scale, the back set of which is marked a, and is tuned as a unison or diapason, while the front or octave set, inarked b, is tuned an octave above the diapason. In the arrangement of these reeds, it will be seen that the lowest and longest reeds in the diapason and the octave sets are placed with their vibrating ends as near together as they can be, with room only for the tracker-pin which communicates the motion of the key to the valve beneath the reeds. But, as the reeds continually shorten as they advance upward in the scale, there is necessarily a vacant space left between the diapason set, a, and the octave set, b, which constantly enlarges itself, and has heretofore been regarded as useless. Within this space, commencing on tenor, F, and running upward through the scale, I have introduced a third set of reeds, L.

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which forms the distinguishing feature of this instrument. These are placed in the reed-board over the octave set, b, and run obliquely to the foundation board, G, as shown in Figure 3, the vibrating ends resting on the same base as the other sets of reeds, a, and b. These reeds are of the same size as the corresponding ones in the diapason, a, and are tuned either a trifle above or below the diapason, but only sufficiently so to produce a slightly waving and undulating quality or effect, without producing any discord. A few trials will enable any tuner of reed instruments to tune these reeds so as to realize the best effect. This method of tuning will, when this set of reeds, which I have named the Harmonic Celeste, is drawn and used in conection with the diapason, produce a most wonderfully pleasing and captivating effect, while

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the power and beauty of both sets of reeds are greatly augmented and enriched, in a manner which cannot be realized without being heard. Figure 2 shows a top view of the reed-board proper, wherein the location of the reeds is shown with reference to the divergence of the reeds of the diapason set, a, and tho octave set, b, and also the space afforded for the introduction of the third set, L. Figure 3 exhibits a transverse section of my reed and foundation board, showing the arrangement of my reeds and the valve connections. In this figure, A is the reed-board, G is the foundation board, D is the valve opening, E is the valve, and FF are the throats over which the reeds are located and placed. The valve, E, is retained in its proper place by the pins, e, e, and spring, H, and is operated by the tracker-pin, I, which rests upon its upper surface, and passes upwards through the reed-board to the under surface of

the key, N. The swell-boards, J and K, and stop-dampers, B and M, are raised, whenever desired, by the knee-stop, C, Figure 1, or by a hand draw-stop, or by some other convenient device. Another important advantage arising from the introduction of the Harmonic Celeste is that a greater power and variety are attained than can be by the use of any of the octave coupling arrangements now in use. These, while they augment the power, by drawing lown octaves to the keys actually played, are objectionable, inasmuch as they offer more than double the resistance to the key, and are thus often exceediingly undesirable. In my instrument, no such objection can ever arise, as the pressure upon the keys is always the same, whether one or all the sets of reeds are used This is of prime importance to the performer, as the required exertion becomes involuntary, and not a matter of calculation, and thus the mind is not distracted from the proper feeling and expression of the music performed."

The claims of the patent are as follows:

"(1) The arrangement, in a reed musical instrument, of the reed-board, A, having the diapason set, a, and its octave set, b, and the additional set, L, extending from about at tenor, F, upward through the scale, substantially as and to the effect set forth; (2) the reed-board, A, and foundation-board, G, constructed with the contracted valve openings, D, FF, and the reeds arranged in relation thereto, all in the manner described ; (3) the diapason, a, and its octave, or principal, b, arranged over the same valve opening, as described, 80 that the octave unison may be produced, when desired, without the use of coupler, and without any additional pressure upon the keys; (4) in connection with the reed-board, A,* having the sets, a, b, and L, as described, the independent dampers, B and M, as set forth.”

The circuit court made an interlocutory decree declaring the patent to be valid so far as claims 1 and 2 are concerned; that those two claims had been infringed; that the plaintiff was not the original and first inventor of what is set forth in claim 4, and did not before the commencement of this suit file a disclaimer of what is claimed in claim 4, and had not unreasonably neglected to file such disclaimer, and had presented evidence of his having filed such disclaimer; that no evidence had been offered to show any infringement of claim 3; and that the plaintiff was entitled to recover profits and damages because of such infringement. A reference to a master to ascertain the same was ordered and a perpetual injunction was awarded as to claims 1 and 2. On the report of the master a final decree was made for the plaintiff for $161,011.79, without costs to either party. The decisions of the circuit court in the case are reported in 15 Blatchf. C. C. 349; 16 Blatchf. C. C. 105; and 19 Blatchf. C. C. 1; [S. C. 3 Fed. Rep. 566.] The defendants have appealed.

An examination of the text of the specification shows that the inventor purposed to cover by his patent two things: (1) a new arrangement of the reed-board; (2) a new method of tuning. In the application for the patent, claim 1 read as it does now, while claims 2, 3, and 4 had specific reference to the method of tuning described. The patent-office rejected all the claims. The plaintiff then amended two of the claims relative to tuning, still retaining the tuning feature in them, and added the claims which are now claims 2, 3, and 4. The

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