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Altoona Publix Theatres Inc. v. American Tri-Ergon Corp.

June 13, 1934; August 6, 1934, As Corrected.


Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge.

Author: Buffington

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

These are appeals from two decrees of the District Court holding claims 5, 7, 9, 13, 17, 18, and 19, of United States Patent No. 1,713,726, valid and infringed.

The main contest below and here is on the validity of the claims in suit. If they are valid, infringement, while not admitted, is rather feebly pressed. The patent, including the claims in issue, is presumptively valid, both as to novelty and utility. Lehnbeuter v. Holthaus, 105 U.S. 94, 26 L. Ed. 939; Johnson Automobile Lock Co. v. Noser Instant Auto Lock Co. (C.C.A.) 9 F.2d 265, 267; Galvin Electric Mfg. Co. v. Emerson Electric Mfg. Co. (C.C.A.) 19 F.2d 885. This follows from the grant of the patent by the Commissioner of Patents and the finding of the District Judge. Apparently extrinsic evidence was necessary to explain the terms and state of the art, and after hearing in open court that evidence, much of which was conflicting and directly contradictory, the trial judge, upon extensive findings of fact and conclusions of law, held the claims in issue to be valid and infringed. We could affirm the decree upon his able and comprehensive opinion. Where facts have been found by a proper party or tribunal, a decree based thereon will not be reversed by an appellate court unless it is obvious that a plain mistake has been made. Tilghman v. Proctor, 125 U.S. 136, 149, 8 S. Ct. 894, 31 L. Ed. 664; Crawford v. Neal, 144 U.S. 585, 12 S. Ct. 759, 36 L. Ed. 552; Furrer v. Ferris, 145 U.S. 132, 12 S. Ct. 821, 36 L. Ed. 649; Davis v. Schwartz, 155 U.S. 631, 636, 15 S. Ct. 237, 39 L. Ed. 289; Hutchins v. Munn, 209 U.S. 246, 250, 28 S. Ct. 504, 52 L. Ed. 776. No such mistake appears here. However, we have decided to state our own conclusions upon the facts and the law.

The patent deals with recording photographic sound on film and the reproduction therefrom for use in talking moving pictures as distinguished from recording and reproducing sound on disk which had long been used on phonographs. The patent contains both apparatus and method claims. Of the claims in issue, claims 5, 7, 13, and 17 are for an apparatus, and claims 9, 18, and 19 are for a method.

The art of photographic sound recording involves the translation of light upon a photographic film. Reproduction therefrom involves translation of the sound record on such a film into acoustically modulated electric currents through the medium of light. The patentees do not claim to be the first to have conceived this idea. However that may be, the practical problem was how to utilize it in overcoming distortion in reproducing sound in talking moving pictures.

Ruhmer, the German scientist, had the idea and tried to solve the problem of using it in the production of talking moving pictures, but without success, and his abandoned experiments are recognized as only a crude beginning of what the patentees after years of patient research accomplished. Edison also had the idea, but his efforts, culminating in the use of a cylinder phonogra, synchronized with a picture machine, failed to produce any results that had any effect upon the art. Others tried and failed. The patentees working together for years on this problem finally solved it and gave to the world a machine and method which revolutionized the moving picture art and drove "sound on disk sound pictures from the market."

The inventors had to overcome many difficulties before they successfully produced and translated sound on film sound pictures. One of the difficulties was to overcome what is called "distortion" of sound. Records on picture film contain many hundreds per inch of precisely placed photographic fine lines varying in frequency and transparency according to complex sound vibrations.In order to record sound without distortion, the spacing and transparency of these lines must vary precisely in accordance with the acoustically modulated light which is being photographed. In the reproducing machine, these fine photographic lines must be rapidly moved without disturbance of their frequency relationship through a focused beam of light at the point of sound translation, the light being varied according to the sound record. This acoustically modulated light shines on what is known as the photo-electric cell which converts the light variations into modulated electric currents which vary in proportion to the light variations. These light variations in turn vary according to the spacing and degree of the transparency of the photographed lines.

Light acts without inertia or friction and so does not distort the most complex and rapid sound vibrations. Attempts to use a beam of light for sound reproductions were futile before this invention, because of the presence of many disturbing factors such as irregular, intermittent and vibratory movement of the film at the translation point caused mainly by take-up reels, driving gear, imperfect meshing of the sprocket with the perforations in the film and the varying friction and irregular deflections of the film in the "straight light gate." These had never been segregated and diagnosed and then collectively remedied, until the patentees did it.

They discovered that this photo-electric cell acts without inertia in co-operation with the light beam, and that the rapidly moving, flimsy, curling film must be uniform in its movements and so controlled that the position and motion of each fine line at the beam of light must be accurate within the thousandth of an inch per small fraction of a second. Unless this is so, the synchronism between the sound and movements, in talking moving pictures, is destroyed and the reproduction a failure.

In the place of the "straight light gate," they eliminated the troublesome transverse curling and irregular buckling of the film at the sprocket perforations by arcuately bending the film longitudinally. This gave firmness to the film at the focal point of the optical system, permitted it to be free from physical supports which accumulated dust and scratched and displaced the film. They thus prevented vibrations.

The well-known function of a flywheel is to give uniformity of motion by absorbing energy when speed is increased and by releasing it when speed is decreased, but this knowledge was not enough to solve the problem of preventing sound and distortion in recording sound on film and in reproducing the same for which uniformity of motion is absolutely necessary. The patentees utilized this knowledge of the function of a flywheel which they made an element of their new combination in order to secure the necessary uniform motion of the flimsy film as it passed over the sound head. This small piece of trembling flimsy film without appreciable weight, charged with the vibrations as it comes from the adjacent intermittent movements of the picture machine, traveling over the sound head at the speed of 90 feet per minute, required a uniformity measured in thousandths of an inch per small fraction of a second in order to accomplish successfully photographic sound in film reproduction by the use of extremely fine transverse lines of light. The flywheel, as used in this combination, does not attempt to regulate the irregularities of the motor and other rotating parts of the picture machine. It regulates only the small length of the film which is passing over the roller at the translation point and gives it the steadiness and uniformity of the speed which it itself possesses.

The effectiveness of the flywheel in producing uniformity of speed and in preventing irregularities and consequent distortion of sound was increased by the use of the flexible spring connection between the driving means and a flywheel shaft. Whille springs and elastic couplings were old, yet in this new combination it was an element which was instrumental in producing the uniformity of rotation which was never secured in the prior art.

Again they used a focused fine line of light, called an "optical slit," through which light penetrated to record and reproduce sound. This takes the place of the old mechanical slit located directly against the film in which dust and dirt collected, obstructing light and scratching the sound record.

The prior art does not disclose this combination nor the result which it produced. The evidence shows that the moving talking picture art was looking for something like this. The defendants point to some 70 patents, some having one element of the patent in issue, and some another, but none have this combination and none produce the result of this combination. The patentees were the first to accomplish successfully and commercially photographic ...

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