[HX89051], Letter from Witter and Kenyon to Jesse H Lippincott, August 15th, 1889


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[HX89051], Letter from Witter and Kenyon to Jesse H Lippincott, August 15th, 1889

Editor's Notes

Summary: Opinion of Messrs. Witter & Kenyon as to marking of Phonographs with Dares, &c., of certain Patents. New York, August 15th, 1889. Jesse H. Lippincott, Esq. Dear Sir: Your letter of August 5th, 1889, including copy of a letter from A. Pollok and also a translation of an Article from "La Nature" under date of 1878, were duly received. We have also had several interviews with yourself and with your Mr. Lombard, and [are in effect asked the following questions]: 1. Ought the article designated in your business as the Phonograph to be marked with the patent date of patent No. 341,214, dated May 4th 1886, to Bell and Tainter, and Patent No. 341,288, dated May 4th, 1886, to Tainter. 2. We are also asked to examine the translation from "La Nature" the two patents dated May 4th 1886, No. 341,214 and 341,288, and the Phonograph above referred to. We have examined the translation from "La Nature," the two patents dated May 4th, 1886 and the Phonograph. [Witter and Kenyon opine that Lippincott's right to mark his phonographs under the two patents is completely unaffected by the description of the device in "La Nature." It is in Lippincott's interest to mark the devices with these two patent numbers that Lippincott controls, and he will forfeit certain rights and advantages of great value if he does not. For example, if he fails to mark such patented articles he will only be entitled to recover damages accruing after the date at which he notifies an infringer of their infringement, and not before. The right of an injunction would be seriously affected moreover by a failure to so mark the patented articles. There are other reasons why the articles should be marked but these are sufficient. [Furthermore, Witter and Kenyon have examined the translation from "La Nature" and are of the opinion that the inventions of Bell and Tainter, as described and claimed in patents No. 341,214 and 341,288 are not found therein and that Lippincott's rights to the patents are unaffected by the article. They find the article disjointed and "blind" and doubt that any phonograph could be constructed by the aid of it. The article itself, they believe, admits as much.] As we understand it, that one of the Bell & Tainter inventions which the La Nature article is supposed by your informant to anticipate, consists in that improvement upon the Phonograph of Edison by which the record is produced upon a tablet by cutting away some portion of the surface of the tablet as distinguished from indenting. Now although this translatino from "La Nature" speaks in a general way of the use of stearine upon a glass surface as forming the material upon which striations are proposed to be made, yet there is not a word anywhere in the said Article which indicates that any part of the stearine is to be removed,--that any part of the stearine is to be cut away in making the record. To indent the surface of the stearine by the striating instrument of the "La Nature" would be a compliance with the directions contained therein. We have carefully examined the instrument called the Phonograph, at your office, NO. 160 Broadway, in connection with explanations and information given by Mr. Thomas R Lombard, and we are entirely satisfied that the instrument referred to and called the Phonograph embodies several of the devices set forth and claimed in each of the patents No. 341,214 and 341,288 to wit, the devices set forth in claims 1,2,3,4,5,6,7,8,9,10,19,22,24 and 27 of patent No. 314,214 and in claims No. 1,4,5,6,7,15,19,22,37 and 39 of patent No. 314,288. There are other claims of each of these patents, the substance of which are probably also found embodied in the instrument called the Phonograph, but it is entirely sufficient that one claim of a patent shall be found in a structure to make it obligatory to mark that structure as required by the Statue… Claims 7,8, and 10 of patent No. 314,214 and claims 1 and 4 of No. 341,288 refer to the tablet, and therefore those tablets should themselves be marked according to the statute, or the package in which the tablets are contained, if the tablets are of such a character that the marks cannot be put upon the tablets themselves. We believe we have answered the questions propounded to us and we remain, Yours very truly, Witter & Kenyon ? The final page of this number appears to be an official document transferring a patent: (2-178.) Received for record Sept 12-1889 and recorded in 0 41/9 page 18 of Transfer of Patents. In Testimony Whereof I have caused the seal of the Patent Office to be hereunto affixed. E. E. Mitchell Commissioner of Patnets [Sealed, and E TELL written next to Mitchell's signature] [name mentions: Witter Kenyon Lippincott La Nature Bell Tainter Mr. Thomas Lombard Thomas Edison]




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Thomas A. Edison Papers, School of Arts and Sciences, Rutgers University
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