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be only necessary, in order to make it available, for the wheel to close, or partially close, the by-pass valve, thereby preventing the water from wasting through the by-pass and turning it to the wheel; and, on the other hand, in case of a sudden change from full to half load, the excess water which is going along the main conduit may be disposed of by simply opening the by-pass valve wider, thereby allowing the excess water to waste through the by-pass, while the reduced amount of water as controlled by the main gate will pass to the wheel. In the Lyndon patent there must be a coincident movement of the by-pass and of the main gate, and that Lyndon disclosed such is evidenced by the following quotations from his patent:

"I provide a by-pass inserted into the penstock or fume at a point near the water gate, and a gate in the said by-pass controlled by the same governing mechanism that controls the water gate, and operating to allow a greater or less flow through the by-pass, according as the water gate is being closed or open."


"When the gate is operated as above described, the lever 43 is moved to close the contacts 452, 46a, 100, 101; this closure being effected whatever the direction of the movement of the controlling lever 26 by reason of the pin and curved slot connection between such lever.”


"Consequently the by-pass valve will be turned toward open or shut position according to whether the gate is closing or opening for the purpose above stated."

And further :

"When the governor acts to close the main gate, the compensating device will open more widely the by-pass. The rapidity with which the valve in the by-pass opens is such that the increased volume of water which it allows to pass through is proportional to the decrease in area which the main gate effects by reason of its closing. Should the main gate open, the reverse action takes place.”

And also:

"It is obvious that the by-pass arranged as described, opening or closing in a manner opposite to that in which the main gate opens or closes, will, if properly adjusted, admit of the main gate being rapidly operated and the governing of the water wheel quickly accomplished."

In this connection it is well to say that in the opinion of several highly qualified witnesses there was serious confusion in certain of the language of the Lyndon patent, and particularly in the use of the term “returning device.” In the specifications of the patent Lyndon refers to "the rod 25, discs 22 and 23 and the controlling clutch magnet 32 as constituting a returning device for preventing the governor from overrunningthat is, moving the water wheel gate a greater distance than is actually necessary for proper regulation; this necessitating a second movement of the gate in an opposite direction, which in turn may overtravel and require the gate to be moved back again.”

Professor Durand, of Stanford University, testified that he concluded that the rod 25 was considered the returning device, because Lyndon refers to a "returning device” consisting of a rod 25 connected by a pivoted link or connecting rod 25a with the disc 22, and because in discussing the general operation he says, “while springs 29, 29, are placed between collars 29a, 29a, on the rod," etc. Other portions of the specifications mention the magnet as apparently claimed independently of the "returning device," and there would seem to be a distinguishing of the rod from the means involved in the movement of the rod.

The best evidence is that the element described as a controller in claims 3, 4, and 8 refers to the lever 26. This is gathered from the language in the specifications, where Lyndon refers to the exertion of pressure "on the controller 26 to return it to normal position"; also from his reference to "the lever 26, which acts as a circuit controller"; and elsewhere in claims the "actuating means" is regarded as distinguished from the controller itself. In the claims just referred to the solenoid is not intended apparently as the controller.

The “means connected to the water gate operating means” described in claims 6 and 7, and the element in claim 8 described as "an operating device for said valve,” are understood to comprise the drum or sheave wheel 54 with its immediate attached parts, 56 and 57, with ropes 51, 52; and the "means for returning the by-pass valve to normal position" elements described in claims 7 and 8 refers to the weights 70 in the drawing. Professor Durand said that the function of the dashpot was to retard or control the return slowly and easily to its position of rest, but its function is not to determine or produce such return.

Much could be said to show why we are satisfied that the theory of the Lyndon patent pertaining to the governing of the hydraulic prime mover implies the provision of a by-pass valve in normal position half open and the movement of such valve in either direction inversely to the movement of the main gate, but it would extend the discussion too far. The movement of the valve is in either direction from its normal position. This language from the specification is helpful in understanding the situation :

"Consequently the by-pass valve will be turned toward open or shut position according to whether the gate is closing or opening for the purpose abore stated. Normally, the gate or valve in the by-pass will be half way open. so that the amount of water flowing through the by-pass and around the wheel without doing work will be half the amount which the by-pass is capable of carrying."

The inventor also specified:

*It is obvious that the by-pass arranged as described, opening or closing in a manner opposite to that in which the main gate opens or closes, will, if properly adjusted, admit of the main gate being rapidly operated and the governing of the water wheel quickly accomplished. After the governing takes place, the by-pass gate is either open or closed, or nearly so, and in order to be useful for a second governing must return to its normal position."

Thus again the normal position is indicated, with movement in either direction therefrom. And we do not find any statement or drawing

which shows that the by-pass valve may be adjusted to occupy any position other than a half-open one as the normal one.

While there is elaborate testimony from men of long experience in hydraulics and electric devices that Lyndon's device as described by him is inoperative, we are not prepared to adopt such a conclusion. But we are satisfied from the evidence that Lyndon's device as described is to regulate the speed of the water wheel by maintaining a constant flow in the pipe line, and the flow in the pipe line is to be kept constant by the use of a by-pass normally kept in half-open position, through which water flows to waste. The purpose is to have a supply of water capable of being thrown on the wheel when, because of an opening movement of the water gate, the wheel slows down, and an outlet may be had for the water to compensate for an acceleration of the flow of water in the pipe line at the instant the water gate is moved toward a closing position.

The alleged infringing device is illustrated by the annexed drawing:

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In the device the normal position of the auxiliary relief nozzle is fully closed, moved from its normal position only when the nature of the reduction in load on the water wheel calls for a prompt closure of the valve of the main needle nozzle. A witness illustrated this by saying that a slow load would produce little or no action on the part of the auxiliary relief valve and an increase of load requiring an opening of the main nozzle would fail to produce any result thereon. The object of the device is to prevent excessive and dangerous pressure in the main line and at the same time to permit economy in the use of water—the latter a most important matter, but one not mentioned or seemingly practicable in the construction of the Lyndon device.

It is satisfactorily shown that the combinations set forth in claims 3 and 4 are not shown in the device used by the defendant. There is not a reversing clutch gear adapted to turn the water gate operating shaft in either direction, nor is there a controller responsive to changes of

speed of the water wheel and controlling such reversing gear. The controller in the device of the defendant, which is responsive to the change of speed, does not control a reversing or reversing clutch gear. The returning device is controlled specially by the nature of the movement of the water gate operating shaft, and not as positive and immediate result of movement on the part of the controlling means.

Nor does the mechanism in the device of the defendant for controlling the motions within the hydraulic cylinder appear to be the same.

Referring to claim 8, we gather from the exhibits and testimony that there is a water gate operating shaft which will operate the water gate. There is a by-pass for the water wheel, and a valve for such by-pass, and an operating device for the valve (shown on Exhibit H), but there is no clutch adapted to connect the operating device for the by-pass valve with the water gate operating shaft; nor is there a valve for the by-pass normally held in partly open position. The mechanism shown is adapted to connect the operating device for the by-pass valve with the water gate operating shaft and to control the by-pass valve inversely to the water gate, which is constructed and operates independently of any clutch mechanism. Reversing means for operating the water gate operating shaft in either direction are found, but there is no driving shaft or reversing clutch gear adapted to turn the water gate operating shaft in either direction. There is a controller responsive to change of speed in the water wheel, but it does not control a reversing

clutch gear.

The combination of elements claimed in claim 7, supra, is clearly not found in defendant's device, inasmuch as the automatic relief nozzle used is not operated from normal position in either direction, but in one direction only, and when the main gate is closed.

The arrangement of the various parts of the dashpot connected with the relief nozzle in defendant's device is such that a closing movement in the valve of the main needle nozzle, when slow, produces an effect on the action of the valve of the relief nozzle, especially when the valve of the main needle nozzle operates nearest its full open position. The by-pass valve of the Lyndon patent is moved at a definite rate of speed responsive to movement on the part of the main water wheel gate; this movement being put into operation by instantaneously operating the electrical contacts in such manner that this by-pass valve will open when the main water wheel gate closes and close when the main water wheel gate opens.

Defendant provides means for governing the water wheel in a manner without causing excessive pressure rises in the main conduit, and thus protects the pipe line and permits great economy of water in accomplishing such object.

The speed-operated element and the fly ball governor used by defendant are not the mechanical equivalents of the wound dynamo marked upon the Lyndon patent. The valve-operating shaft in defendant's device does not make a complete revolution, and is not in the usual sense an operating shaft used for transmitting motion, as indicated by 20 or 49 in Figure 1 of the Lyndon patent.

[2] In arguing in support of the position that no one has obtained

the results produced by the Lyndon invention without using that invention as claimed, appellant would have us hold that in claims 3, 4, 6, and 7 the word “means," or the like, "is employed to describe connective features of the combination, and that such terms may be considered to cover practically any substitute part or feature." Proceeding with his argument, appellant says that, the substance of the claim being the combination, such combination is a unit, and that, where the component parts are recited as interrelated through the agency of means, the claim is to be construed as a unit. We find ourselves unable to sustain this argument. To permit a patentee to burden his claims by the use of indefinite language would lead to supporting him in a monopoly of a principle or result, which would bar other inventors from arriving at the same result by different means. In Walker on Patents, § 117a, p. 137, the author says:

"Where some of the parts of a combination operate therein to give mo tion to other parts which do the final work of the combination, it is proper to specify the former by the use of such terms as 'means,' 'mechanism,' or devices' for giving that motion, except when these terms are applied to an element or part which constitutes the essence of the invention. If they are used under such circumstances, the claim will be regarded as functional. But such general language will not include all means, mechanism, or devices which can perform that function, but only those which are shown in the patent and their equivalents. And in this case, also, the question whether other means, mechanism, or devices are equivalents to those shown in the patent will be determined by the established rules on that subject, rather than by any apparent precision or elasticity of the language used in the claims to designate the parts involved in the inquiry."

We do not find in the defendant's device any mechanical equivalent to the reversing clutch gear or the means for operating the water gate in either direction as stated in the claims of the patent to Lyndon. Singer Manufacturing Co. v. Cramer, 192 U. S. 265, 24 Sup. Ct. 291, 48 L. Ed. 437. Nor do we find any returning device for the controller in the defendant's device, as called for by claims 3 and 4. There is lack of similarity between the butterfly valve, an old style of valve used by Lyndon, and the needle valve, used by the defendant. They operate on different principles; the one inversely to the water gate in both directions, and at all times half open when in normal position, while defendant's is closed.

The appellant earnestly contends that the object of defendant's governing device is, not to take the pressure off the wheel and make it tend to slow down, but equally with Lyndon to keep the wheel moving at a constant speed, and thereby keep the potential of electric energy constant in the circuit of the generator. This view is supported by opinions of witnesses for the appellant. But with Lyndon the by-pass is a very important means of overcoming the inertia effects of water which interfere with the proper speed of the water wheel, the halfopen by-pass being the indispensable means for governing the speed of the water wheel; while in defendant's governing device the main needle is the principal thing, the auxiliary nozzle being used as a valve to prevent the damaging effects of excessive pressure to the pipe line, and the main needle moves often to govern the water wheel, without causing movement of the auxiliary relief nozzle.

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