Page:Federal Reporter, 1st Series, Volume 8.djvu/526

512 FEDERAL REPORTER. �drawn Bomewhat carefully, in view of the decision in O'Reilly v. Morse, 15 How. 62, and ooversthe method and apparatus; that is, any pro- cess and any apparatus of substantially similar character to those describef'. The patent points out distinctly. that the undulations may be produced in other modes besides the vibration of an armature in front of a magnet; and the defendants make use of a mode not wholly unknown at that time, though much improved, in creating their undulations. �It seems to me that the defendants use both the method and the apparatus of Bell. The easential elements of the method are the production of what the patent calls undulatory vibrations of electricity to correspond with those of the air, and transmitting them to a re^ ceiving instrument capable of echoing them, Granting that the de- fendants' instrument for converting the vibrations of the diaphragm into vibrations of electricity is an improvement upon that of the plain- tifs, still it does the same sort of work, and does it ia a mode not wholly unknown at the date of the patent ; though I do not eonsider that material. �An apparatus made by Eeis, of Germany, in 1860, and described in several publications before 1876, is relied on to limit the scope of Bell's invention. Eeis appears to have been a man of leaming and ingenuity. He used a membrane and electrodes for transmitting sounds, and his apparatus was well known to curious inquir- ers. The regret of all its admirers was that articulate speech could not be sent and received by it. The deficiency was inherent in the principle of the machine. It can transmit electric waves along a wire, under very favor.ible circumstances, not in the mode intended by the inventor, but one suggested by Bell's discovery ; but it cannot transmute them into articulate sounds at the other end, because it is constructed on a false theory, and the delicacy of use required to make it perform part of the operation is fatal to its possible perform- ance of the other part. A Bell receiver must be used to gather up the Sound before the instrument can even now be adapted to a limited practical use. It was like those deaf and dumb pupils of Professor Bell who could be taught to speak, but not to hear. That was all, but it was enough. A centiiry of Eeis would never have produced a speaking telephone by mere improvement in construction. �I am of opinion that the fifth claim of patent No. 174,465 is valid, and Las been infringed. �The statute declares that if a patentee has claimed too much in any part of his patent he shall not recover oosts, and it has been ��� �