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von ALBERT WOODRUFF CRAY

While it is - fortunately - not necessary that an invention be brought to perfection before a patent is applied for, it must at least have been tested and proven workable.
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of the patent law, made by a federal court is, "Reduction to practice is not merely a matter of construction, building and trial, but may consist in the disclosure of the idea by any kind of description, pictorial, verbal or written, which will enable one skilled in the art to make and use that which is disclosed. We think a drawing may be a sufficient reduction to practice, and an experimental machine insufficient, for the question is one of degree and the ultimate test is always whether the inventor has shown operative means to that theoretical omnipresent person, the man skilled in the art."*1

Through a failure to observe (befolgen, einhalten) this century old rule of the patent law, a leading manufacturer was recently denied a patent of radar apparatus, by reason of the omission of reducing its discoverey to practice. Application for a patent of this invention had been filed in France by a man named Gloess on October 2, 1937, and later in this country on September 22, 1938.

Eight days later, September 30, 1938, the patent application of this radio manufacturer was filed (angenommen und publiziert). Claims in this application for a radar indicator patent which provided both for distance and direction, were, "A radio vision device including in combination means for radiating radio energy toward a reflecting object, means for receiving said energy after reflection from said object, means for deriving directly from said reflected energy information including the angular position of said object and the distance of said object as a function of the velocity and the transit time of said energy and the indicator for combining said information to indicate the angular position and distance of said object."

Plans had been well developed for the operation of this invention during 1936 and on June 22, 1937, the apparatus was set up on the top of a building of the radio manufacturer at Camden, Xew Jersey.

From this point efforts were made to operate the equipment and sight nearby objects as well as vessels on the Delaware River.

While the radar finder in these operations located buildings, smokestacks and other objects, the reliability of definition and measurements left much to be desired.

Among other idiosyncrasies the machine located the smokestacks of a Camden factory in the middle of the Delaware River. After this attempt further efforts at a reduction of the invention to practice were abandoned.

Denying the application of this radio manufacturer, made for a patent, on the ground of its failure to reduce the invention to practice the United States Court of Appeals in its decision of this recent controversy, said,

"There has been built up a considerable amount of case authority upon what constitutes a reduction to practice. We find no disagreement among the decisions. Indeed, the language of them all seems to us to express the same idea in different ways."

"We think it is clear that reduction to practice does not mean that whatever is being worked upon has to be in shape to be marketed commercially. On the other hand it must be a demonstration that the inventor's idea works, not that he has thought the matter out and devised something that ought to work and may work, but actually something that will work to accomplish its intended purpose."

It is however an old rule that this essential of the patent law does not require that the invention be perfect, or even that it be marketable. In the famous Bell telephone cases the Supreme Court said of this feature of the patent law,

"The particular instrument which he (Bell) had and which he used in his experiments did not under the circumstances in which it was tried, reproduce the words spoken so that they could be clearly understood but the proof is abundant and of the most convincing character that other instruments, carefully constructed and made exactly in accordance with the specification, without any additions whatever, have operated and will operate successfully."
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This the court supplemented (ergänzte) with a detailed summary of this rule of law that after more than a half century is still followed by the courts.

"The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection."

"It is enough if he describes his method with sufficient clearness and precision to enable those skilled in the matter to understand what the process is and if he points out some practical way of putting it into operation. - This Bell did. - He described clearly and distinctly his process of transmitting spoken words telegraphically by creating the changes in the intensity of a continuous current or flow of electricity in a closed circuit, exactly analogous to the changes in density in air occasioned by the undulatory motion given to it by the human voice in speaking."2

In the long litigation (das ist das Prozeßrecht) involving the discoveries (Entdeckungen) in wireless telegraphy by Marconi, the Supreme Court in holding his invention of the tuning of the antenna circuit had been anticipated, pointed out the fatal error in this inventor's failure to observe this demand of the patent law of reduction to practice.

"Commercial success," said that court of these circumstances, "achieved by this inventor and patentee cannot save his patent from the defense of anticipation by a prior inventor. To obtain the benefit of his prior conception the inventor must not abandon his invention but must proceed with diligence to reduce it to practice."

To this was added the further observation by the court, "Marconi's reputation as the man who first achieved successful radio transmission rests on his original patent which is not here in question. That reputation, however well deserved, does not entitle him to a patent for every later improvement which he claims in the radio field."*3

By the United States Court of Customs and Patent Appeals in a recent decision was outlined this patent law requirement for the reduction of an invention to practice as a condition of the validity of the patent, which has been the subject of frequent references in later decisions involving this feature of the law.

(Das US-Gericht für Zoll- und Patentgerichte hat in einer kürzlich getroffenen Entscheidung diese Anforderung des Patentgesetzes für die Umsetzung einer Erfindung in die Praxis als Bedingung für die Gültigkeit des Patents umrissen, auf das in späteren Entscheidungen häufig Bezug genommen wurde.)

"Where either of the parties seeks to establish conception and reduction to practice prior to his filing date, the conception and disclosure to others required, is the inventor's completed thought expressed in such clear terms as to enable those skilled in the art to which the invention pertains, to make, compound, build or practice the device, compound, or process which constitutes the subject matter of the invention."

Then of the specific features of a reduction to practice the court continued, "To constitute actual reduction to practice of a machine, the device must be completed in an operative form capable of successfully demonstrating its practical utility in its intended field of use.

"Unless the device is of such a nature that by its very simplicity its practical operativeness is manifest, the machine must be tested under actual working conditions in such a way as to demonstrate its practical utility for its intended purpose. Actual performance is required of the function for which the machine is intended with a quality, extent, and character of operation sufficient to indicate its utility in the environment in which it is contemplated to be used."*4
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The birth of this rule of reduction to practice occurred with the decision by the United States Supreme Court over a century ago, rendered on an opinion by Chief Justice Taney, famous for his determination of the Dred Scot controversy of Civil War days.

This action involved the patentability of a fireproof safe. The claim that the patent was invalid rested on another inventor's safe, which although it was insisted that it was fireproof, had never been tested or tried out in an actual fire. By virtue of the absence of this feature of reduction to practice the court held there could be claimed no interference based on the earlier conception.*5

The effect of this decision on the law as it is today was set out by the federal appellate court in a recent decision of a controversy of this character. "The law that the inventor's mere conception is not his 'prior invention' within the relevant sections of the statute, is judge-made."

In this old case the discovery of the so-called fireproof safe, untested, used and forgotten had been interposed as a prior invention, impeaching the validity of a later invention in this same field.

"The courts have written two glosses upon the text," continued the federal court. "First, that the inventor must disclose (enthüllen) his invention, either by description or physical embodiment and, second,  - unless he can show diligence in filing an application after his rival has filed -  that the invention has also been tested so far as to make sure that it will operate under service conditions. Why this last condition has been added is not very clear but it is laid down in too many decisions to be now questioned."

Then in a reference to that early decision in which this doctrine was first set out the court added of the extent to which this rule must be followed,

"Although in many later decisions the question has arisen of the need of a test under service conditions, it has never been laid down as an inexorable condition in all circumstances. The courts have again and again upheld inventions not so tested.

"The doctrine to be drawn from the books, as we read them, is this - and incidentally it is the only doctrine that can find support in reason, a test under service conditions is necessary in those cases and in those only, in which persons qualified in the art would require such a test before they were willing to manufacture and sell the invention as it stands." *6

*1 Curtiss Aeroplane & Motor Corp. v. Janin, 278 Fed. 454, New York, December 14, 1921.
*2 Telephone Cases, 126 U. S. 1, March 19, 1938.
*3 Marconi Wireless Co. v. U. S., 320 U. S. 1, June 217 1943.
*4 Field v. Knowles, 183 Fed. 2d 593, June 30, 1950.
*5 Gayler v. Wilder, 51 IT. S. 476, December, 1850.
*6 Siuko Tool & Manufacturing Co. v. Automatic Devices Corp., 157 Fed. 2d 974, Conn., November 12, 1946.

Ende des Artikels aus APRIL, 1959 VOL. 43
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von ALBERT WOODRUFF CRAY

Architects, engineers, and consultants can not usually be held liable for failures in their work - they must exercise due diligence like physicians and lawyers, but successful results are not necessarily guaranteed.
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by a New England court was outlined the rule that governs the liability of an engineer or any other professional worker in his performance of services.

"What then is the contract of the professional man with his employer in regard to his qualifications and conduct," queried that court. "And here it may be laid down broadly, that without a special contract for that purpose he is never a warrantor nor insurer. He never stipulates for success at all events and he is never to be tried by the event.

"By our law a person who offers his services to the community generally or to any individual for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by the professors of the same art or science and which is ordinarily regarded by the community and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business."*1

Even earlier than this pronouncement by that New Hampshire court is an English case in which it was asserted, "every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill.

"He does not, if he is an attorney, undertake at all events to gain the cause nor does a surgeon undertake that he will perform a cure. Nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself, but he undertakes to bring a fair, reasonable, and competent degree of skill."*2

In the circumstances surrounding a lawsuit in New York State the humanity and justice of this old common law rule became apparent (es wurde ersichtlich). There an engineer had written to a company, "I am to act as consulting engineer in your company and to assume entire responsibility for the design and construction, devoting as much time to this work as may be required. In consideration of being retained I agree not to engage in consulting work for clients in similar or competitive lines of work."

Five months later the engineer was requested to resign (Aufforderung zur Kündigung). This he did with the agreement that he would be given two months salary in place of the usual notice. When the company failed to pay this advance, suit was brought by the engineer for the amount he claimed as due under his employment contract.

As a counterclaim the company demanded $10,000 for expenses it had incurred which would have been avoided, the company claimed, if the engineer had properly performed his work as a consulting engineer.

"It would, I think, be a violent construction (fehlerhafte Formulierung) of this contract," said the court in refusing to recognize any liability as resting on the engineer under this charge of his employer, "to hold that this engineer intended thereby to guarantee the sufficiency of the plant which was to be erected under his care. I think a fair interpretation of this contract would hold the engineer to an obligation to assume full charge of the construction of the work and to use his best endeavor to accomplish that purpose."*3

A very similar situation had been before the Florida courts the year before, but in that instance the charges of negligence and lack of skill (mangelnde Erfahrung) had been made against architects instead of engineers.

There as in the New York decision, the errors or mistakes of the architect in this instance, or of the engineer in the former action, afforded no grounds for the claim of negligence in the performance of the services.

"The architect's undertaking," said the Florida court, "does not imply or guarantee a perfect plan or satisfactory result and there was no evidence sufficient to support a verdict of the existence of a specific promise or guarantee."

To this statement was added an outline of the legal obligations of a professional worker. "The law requires only the exercise of ordinary skill and care in the light of the present knowledge. If the plans and specifications were in fact justified by the common knowledge upon such matters at the time and met the judgment of approval of those men ordinarily skilled and experienced in their conclusion, the architect has complied with his contract."*4
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This charity bestowed by the courts on the honest mistakes of engineers and other professional workers in the performance of their undertakings was extended by a court in the District of Columbia a few years ago to relieving an engineer of consequential damages when the correction of the mistake was timely made.

Consulting engineers had been employed to prepare plans and specifications and on the basis of those plans, contracts had been made for the performance of construction work. In the specifications was discovered later a mathematical error and corrected plans were immediately prepared. By the court in this instance there was charged against the engineers only the additional cost resulting from the mistake.

"The engineers" said the court, "contracted to furnish plans. They did not contract to install the system or guarantee that the system would be installed for any specified sum. Through negligence they failed to furnish the proper plans but when such negligence was discovered they supplied supplemental plans which together with the original plans filled their contract obligation.

"Had the original plans been free of error the cost would have been $183.30 less than in the use of the original plans. Such amount places the owner in the same position it would have been in if the error had not been committed. A larger sum would permit the owner to profit by the engineer's mistake."*5

This feature of the obligations of engineers, carried a step further, appeared in a recent South Carolina controversy in which engineers had obviously failed to exercise the care and skill demanded by the law. In a suit against engineers a judgment was recovered against them which they appealed. In affirming that judgment the South Carolina court stated a rule of law that is fundamental in the determination of the liability of engineers for mistakes of this character.

"It seems to be well settled" said that court, "that where a person holds himself out as specially qualified to perform work of a particular character, there is an implied warranty that the work which he undertakes shall be of proper workmanship and reasonable fitness for its intended use and if a party furnishes specifications and plans for a contractor to follow, he thereby warrants their sufficiency for the purpose in view."*6

Recently in Virginia the defense to a suit for the foreclosure of a mechanic's lien for architect's services involved the same principles of law applicable to the services of engineers. By the owner it was contended that the work had been faulty and the cause of a loss.
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There the Virginia court outlined the extent of these obligations imposed by the law on engineers, architects and other professional workers.

"The owner earnestly (aufrichtig) argues," said that court, "that it has suffered great loss as the result of the defects due to the failure of the architect to execute proper and sufficient plans and specifications.

"The architect in the preparation of plans and drawings owes to his employer the duty to exercise his skill and ability, his judgment and taste, reasonably and without neglect. In his contract of employment he implies that he possesses the necessary competency and ability to enable him to furnish plans and specifications with a reasonable degree of technical skill.

"He must possess and exercise the care of those ordinarily skilled in the business and in the absence of a special agreement, he is not liable for fault in construction resulting from defects in the plans, because he does not imply or guarantee a perfect plan or a satisfactory result."*7

A decision frequently adopted by the courts as an authority in these controversies involving the liability arising from the performance of services by engineers and other professional workers was rendered by the Maine Supreme Court in the last decade of the past century.

There suit had been brought for professional services and the defense interposed was that the services were not of benefit to the owner although no imputation was made of either negligence or bad faith in the performance of the work.

Granting a new trial to this professional worker who had been met with an adverse decision in the lower court, this appellate court (Berufungsgericht) said of the law governing engineering and other professional workers :

"The responsibility is essentially the same as that which rests upon the lawyer to his client, or upon a physician to his patient or which rests upon anyone to another where such person pretends to possess some skill and ability in some special employment and offers his services to the public on account of his fitness to act in the line of business for which he may be employed.

"The undertaking of an architect implies that he possesses skill and ability sufficient to enable him to perform the required services at least ordinarily and reasonably well and that he will exercise and apply in the given case his skill and ability, his judgment and taste, reasonably and without neglect."
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To this rule however the court set out an all important exception. "But the undertaking," said the court, "does not imply or warrant a satisfactory result. It will be enough that any failure shall not be by the fault of the architect. There is no implied promise that miscalculations may not occur.

"An error of judgment is not necessarily evidence of a want of skill or care, for miscalculations are incident to all the business of life."

To this is added an outline of the duties of the professional worker and the principle of law govering all professional services of this character.

"Those who employ him have a right to his best judgment, to his skill, to his advice, to consultations with him and to his absolute fidelity and good faith and when he has contributed these things to the person who employes him, his duty has been fulfilled."*8

In another instance involving this same feature, the obligations and liabilities of engineers and other professional workers, a New England court a hundred years ago said of the rule of law at that time which still subsists,

"The professional man contracts that he will use reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge to accomplish the purpose for which he is employed.

"He does not undertake for extraordinary care of extraordinary diligence any more than for uncommon skill. The general rule is well settled that the contractor for services to be performed for another, agrees to exert such care and skill as men of common care and common prudence usually exert in their own business or in a similar kind. He agrees to be responsible for the want of such care and attention and he stipulates that in no event, without an express contract for that purpose, for any greater liability."*9

*1 Leighton v. Sargent, 27 N.H. 460, December, 1853
*2 Lanphier v. Phipos, 173 Eng. Eep. 581, February 16, 1838
*3Bulkley v. Kaolin Products Co., 187 A.D.103, New York, March 21, 1919
*4 Bayskore Development Co. v. Bonfoey, 78 So. 507, Florida, March 20, 1918
*5 Henry J. Robb, Inc. v. Urdahl, 78 Atl. 2d 387, District of Columbia, Januarv 31, 1951
*6 Hill v. Polar Pantries, 64 S.E.2d 885, South Carolina, April 30; 1951
*7 Surf Realty Corp. v. Standing, 78 S.E. 2d 901, Virginia November 30, 1953
*9 Leighton v. Sargent, 27 N.H. 460, December, 1853

Ein Artikel aus der US-AUDIO - AUGUST, 1959 VOL. 43, No. 8
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von ALBERT WOODRUFF CRAY - SEPTEMBER, 1959 VOL. 43, No. 9

An infringement (Patentverletzung) can occur when information or material is provided with the intent that it shall be used in such a manner as to negate the value of a patent to its owner. Thus if you aid someone in infringing a patent, you may be just as guilty as if you infringed it yourself. (Wenn jemand einen anderen zur Patentverletzung "verleitet", ist er mitschuldig.)
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in the infringement of a patent brings the giver under the ban in the Biblical Apocrypha, "He that toucheth pitch shall be defiled therewith."

Vacuum tubes of a special type used in patented radio receiving sets were sold in the open market. Purchased by the manufacturers of the supplemental equipment for receivers, these tubes were packaged for export by these manufacturers separately but in the cartons containing the other equipment.

Owners of the combination patents of these receiving sets protested to the courts that the substitution of the tubes contributed to the infringement of their receiver patents.

No wrong was clone, said the court in that instance, until the tubes were inserted in the sockets. The patent monopoly, it was asserted, did not cover the sale of the separate elements, however capable they might be of contributing to the patented invention.

"Only when such association is made," concluded the court, "is there a direct infringement of the monopoly and not even then if it is done outside the territory for which the monopoly is granted. This is the basis for the doctrine of contributory infringement which permits the elements of a patented combination to be sold in this country with the intent that the purchaser shall make and use the invention abroad."

"Hence, sales made in European countries of goods unprotected in such countries by patent, were no infringement, irrespective of the patent protection accorded in the United States."

Later however, in this case, it was discovered that these tubes, packed as they were separate from the supplemental equipment, had been inserted and tested in the factory before export.

"The testing was a commercial use of the complicated combination of the patents, just as it is to be used by the ultimate purchasers, even though the receiving waves and musical tone were generated in a laboratory rather than at a testing transmitting station.

It is enough that it was necessary to assemble the tubes and the receiver and to use them as a combination of the patent in suit. The tests were made to see if they were marketable - commercially, and hence an infringing use."

In its disposition of this controversy over the wrongful use (unberechtigte Benutzung) of these vacuum tubes the court but echoed the law asserted long before by the United States Supreme Court.

Under the Emil Berliner patents for a "sound producing apparatus," phonographs and records were manufactured by the Victor Talking Machine Co. By another manufacturer at that time were made disc records adapted for use in the "sound producing apparatus" of the owner of these patents. Of the interference with combination patents that court said,

"A combination is a composition of elements, some of which may be old and others new, or all old, or all new. It is however the combination that is the invention and is as much a unit in contemplation of law as a single or noncom-posite instrument.

"Whoever uses it without permission is an infringer of it. Whoever contributes to such use is an infringer of it. It can make no difference as to the infringement or non-infringement of the combination that one of its elements or all of its elements are unpatented.

"For instance, in the case at bar the issue would be exactly the same even if the record disc were a patented article which this company had a right to use or to which the owner of the patent had no rights independent of his right to its use in the combination."

For many years this law of contributory infringement (bei der Patentverletzung mitwirkend) had been entirely the decisions of the courts.

With the enactment of the present patent law in 1952 this court-made law became a part of that statute. By this present statute it is now provided,

"Whoever actively induces infringement of a patent shall be liable as an infringer. Whoever sells a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in the infringement of such patent, and not a staple article or commodity of commerce suitable for noninfringing use, shall be liable as a contributory infringer."

Characterization of this section of the statute in the House Report, was in part, "The doctrine of contributory infringement has been part of our law for about 80 years. It has been applied to enjoin those who sought to cause infringement by supplying someone else with the means and directions for infringing a patent.

"One who makes a special device constituting the heart of a patented machine and supplies it to others with directions, specific or implied, to complete the machine, is obviously appropriating the benefit of the patented invention. It is for this reason that the doctrine of contributory infringement, which prevents appropriating another man's patented invention has been characterized as 'an expression both of law and morals.'

"Considerable doubt and confusion as to the scope of contributory infringement has resulted from a number of decisions of the courts in recent years. The purpose of this section is to codify in statutory form principles of contributory infringement and at the same time eliminate the doubt and confusion."

This statement of the purpose of the present patent law provision, was supplemented (ergänzt) with, "The sale of a component of a patented machine, etc., must constitute a material part of the invention and must be known to be especially made or especially adapted for use in the infringement before there can be contributory infringement. And likewise the sale of staple articles of commerce suitable for noninfringing use, does not constitute contributory infringement."*5

Shortly after this statute became effective a suit was brought against the Union Carbide and Carbon Corporation, the Radio Corporation of America, and others. There it was charged that "Union Carbide and Carbon Corporation, intending to bring about infringement of plaintiff's patent, secured from plaintiff and passed on to the other defendants confidential information making infringement possible."*6

The Union Carbide Corporation contended that there was no ground for the charge of contributory infringement, since under this statute it is required now that there be a sale of a component part of the patented device to constitute a violation of the patent law.

In its consideration of the requirements of the present statute the Federal court said that it included in its definition of an infringer, "A person who does that which the courts had previously held to be contributory infringement wherein there was an intent to infringe, but not necessarily the sale of a component part of a combination patent. It protects against one who aids and abets the direct infringer."

Then of the law as it had been interpreted before the passage of this present statute the court added, "Prior to the enactment of this statute the courts had recognized as contributory infringers those who knowingly committed an act without which infringement would not have occurred though they did not sell a component part of the invention.

"This included the architect who planned and supervised the construction of the infringing machine, the salesman who solicited orders for the infringing device, and a person who used trade secrets to construct an infringing machine for the direct infringer."
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In a decision rendered a few months later added clarity was given this interpretation by the Federal District Court in Maryland. There intent and knowledge of the purpose of the acts were emphasized as essential features of the offense.

"To constitute contributory infringement," said that court, the device or material capable of infringing use must be sold with the intent that it shall be so used. When a manufacturer makes, uses, or sells an unpatented element, he becomes a contributory infringer only when the element is knowingly made, sold, or to be used as a part of the patentable combination.

"By furnishing parts it makes it possible for others to assemble and use the combination, and when a manufacturer by so manufacturing and advising points out the way in which this can be done, and thus, intentionally so acting, promotes infringements of a patentee's rights, he becomes a contributory infringer.

"In the last analysis the fundamental thought is that before one may be held for contributory infringement, it must be shown that he had knowingly done some act without which the infringement would not have occurred."

By a Supreme Court decision rendered over a century ago, has been established the boundaries of this law and the distinction between replacement or repairs and reconstruction or infringement.

A mill owner (Mühlenbesitzer) in Lousisiana had purchased a patented planing machine. After some years the purchaser replaced the wornout knives (abgenutzen Meser) and for so doing was sued by the manufacturer for the infringement of this patent.

Ultimately the action came before the United States Supreme Court for review. That court holding that the mere repair or replacement of these wornout knives was not infringement, summarized the law, and the statement made at that time has remained the rule.

"The right of the purchaser to replace the cutter knives is not because they are of perishable materials but because the inventor of the machine has so arranged them as part of its combination that the machine could not be continued in use without a succession of knives at short intervals. Unless they were replaced the invention would have been of but little use to the inventor or to others.

"The other constitutent parts of this invention, though liable to be worn out, are not made with any reference to the use of them that will require replacement. These without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such a combination. So it is understood by a purchaser and beyond the duration of them, a purchaser of the machine has not a longer use.

"But if another constitutent part of the combination is meant to be only temporary in the use of the whole, and to be subsequently replaced, because it will not last as long as the other parts of the combination, its inventor cannot complain if he sells the use of his machine, that the purchaser uses it in the way the inventor meant it to be used and in the only way in which the machine can be used". *7

*5 Freedman v. Friedman, 142 F.S. 426, Maryland, June 20, 1956.
*6 Jones v. Radio Corp. of America, et al., 131 F.S. 82, April 26, 1955.
*7 Wilson v. Simpson, 50 U. S. 108, January, 1850.

Ein Artikel aus der US-AUDIO - September, 1959 VOL. 43, No. 9
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