Wurlitzer Co. v. Electrokey, Inc.

380 F. Supp. 576, 184 U.S.P.Q. (BNA) 212
CourtDistrict Court, N.D. Texas
DecidedAugust 23, 1974
DocketNo. CA3-4803-C
StatusPublished
Cited by1 cases

This text of 380 F. Supp. 576 (Wurlitzer Co. v. Electrokey, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wurlitzer Co. v. Electrokey, Inc., 380 F. Supp. 576, 184 U.S.P.Q. (BNA) 212 (N.D. Tex. 1974).

Opinion

[577]*577OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

This is a patent infringement ease brought under 28 U.S.C. § 1338 and 35 U.S.C. §281.

Plaintiff is a Delaware corporation with its principal place of business in Illinois. Defendants Electrokey and Rhythm Band have their principal place of business in the Northern District of Texas. Defendant Moore is a resident of the Northern District of Texas. Defendant Chicago Musical Instrument is a resident of Illinois and was a party to a suit filed there by Plaintiff that was subsequently dismissed upon Chicago Musical Instrument’s addition into this suit. Defendant Nippon Columbia is a Japanese corporation which was served through its agent, Defendant Moore.

The broad question here is whether the electronic piano manufactured and distributed by the Defendants infringes four patents owned by Plaintiff.

The first patent is B. F. Miessner No. 3,038,363 originally filed June 22, 1952, and patented June 12, 1962. Plaintiff contends that Defendants’ device infringes claims 3, 4, 5, 6, 7, 8 and 9 of that patent.1

The second' patent is B. F. Miessner No. 2,942,512, filed August 14, 1957, and patented June 28, 1960. Claims 1, 2, 6 and 9 are claimed to be infringed.

Plaintiff’s third patent in dispute is C. W. Andersen No. 2,949,053, filed June 1, 1954, and patented August 16, 1960. Claims 1-5 are in dispute.

These first three patents involve the construction of tone generators for electronic pianos. Defendants do not contest their validity but claim that when they are construed in the light of the prior art, they do not read on Defendants’ piano.2

The fourth patent in suit is H. E. W. Bode No. 3,154,997, filed October 3, 1962, and patented November 3, 1964. All six claims are said to be infringed in Plaintiff’s view and invalid in Defendants’ view. This patent pertains to musical instrument reeds with an inward curved taper extending from the base.

I.

First, a word on the devices in dispute. Any piano, acoustic or electronic, has three essential parts. First is the action. That is the portion consisting of the keys, the hammers, the dampers and the interconnecting bits and pieces. Next is the tone generator. In an acoustic piano, it is comprised of the strings and their tightening mechanisms. In an electronic piano, at least of the type in dispute, it is comprised of a set of flat metal reeds fixed on one end and with the other end free to vibrate and a lead weight attached to the free end. It also has some means with which to sense the vibrations of the reed. The third part is an amplification device. It is the sounding board and case of an acoustic piano. Our electronic pianos have electronic amplifiers and loudspeakers connected to the sensory pick-ups instead.

There are two or three principal advantages to an electronic piano. In the [578]*578first place, it has a tremendous weight saving advantage. The sound board in an acoustic piano must be extraordinarily strong as it must withstand tensions of up to 18 tons, as in the case of large grands. The weights of acoustic pianos therefore go as high as 1,500 pounds. This is in contrast to some models of Plaintiff’s manufacture that have weights as low as 60 pounds.

Another big advantage is the ability of an electronic piano to stay in tune. String pianos must be constantly re-tuned in order to be musically correct and pleasing to the ear. The reeds in an electronic piano do not require frequent retuning. This is a significant saving in both time and bother.

A third major advantage of an electronic piano is its ability to be used with closed circuit devices such as headphones and teaching consoles. The pupils can then be given group instruction or separate instruction at the same session at the discretion of the teacher. Whether they hear only themselves or the whole group or only the teacher can be controlled by the teacher. Headphones also allow the pupil to practice without disturbing others.

Other advantages are portability, low incidence of reed failure and possibly lower purchase price.

II.

Defendant Nippon Columbia manufactures the purportedly infringing pianos in Japan and exports them to our country. Electrokey and Rhythm Band are the importers of them. Rhythm Band sells Nippon Columbia’s pianos under the name “Electrokey” directly to schools for educational purposes. Electrokey sells them to Chicago Musical Instrument under the name “Maestro”. Chicago Musical Instrument then wholesales them to local music dealers for retail sale to mainly the educational market. The parties agree that the two brands of Nippon Columbia built pianos have no differences material to this case. Also no questions of jurisdiction and venue have been raised. The Court finds jurisdiction is proper in this District after an independent evaluation.

III.

The first patent shall be referred to as the Miessner '363 patent.3 Defendants say that their pianos do not infringe this patent because their tone generators do not contain “a single pick-up element for electrostatically sensing vibrations of a multiplicity of said reeds”, an element of each of the claims of this patent that are in dispute. This position is untenable.

Defendants’ pick-up is composed of many small parts which are screwed together and to a large stable plate. Their contention is, in effect, that in order for their structure to infringe this patent, it would have to be made of one solid piece. This is a misreading of the disclosure. The full pertinent language of the claims is “a single pickup element for electrostatically sensing vibrations of a multiplicity of said reeds, said pick-up element having a plurality of electrically conductive portions thereof .” This language discloses two things when taken in conjunction with the drawings and description contained in the patent. This is not to say that the drawings and description must be looked at in order to make sense of the claims, but that they do show that Defendants’ reading of the claims is incorrect.

The first thing disclosed by this language is that it is desirable to have a solid base for various reasons and second, that it may have screws, arms, etc. attached to it which are the parts in close proximity to the reeds and act as the sensing surfaces. This is the apt [579]*579reading of this language of the claims and a description of Defendants’ structure.

Defendants’ view only takes into account the mechanical aspects of this disclosure. The mechanical aspect of the solid base is the more important part of the disclosure as to the base. But the whole pickup assembly is integrated into one electrical circuit which is the important aspect of the whole assembly. This integration produces the cumulative capacitance disclosed in another part of the claims as part of the invention.

Each of the claims beyond No. 3 contains at least one new element. Defendants have put strained interpretations on such terms as coplanar in order to be able to contend that these new phases do not apply to their structure. The Court refuses to put such attenuated interpretations on these words and phrases.

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Cite This Page — Counsel Stack

Bluebook (online)
380 F. Supp. 576, 184 U.S.P.Q. (BNA) 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wurlitzer-co-v-electrokey-inc-txnd-1974.