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MCCARTHY v. NATIONAL PERFORATOR CO.

November 24, 1933

McCARTHY et al.
v.
NATIONAL PERFORATOR CO., Inc.



The opinion of the court was delivered by: KIRKPATRICK

This is a suit for infringement of United States letters patent, No. 1,748,489, to McCarthy and Novick, relating to a device for facilitating by mechanical means the photographing of discrete documents, particularly checks.

The apparatus consists of three major parts:

 (1) A camera is set up and provided with mechanism which advances the film step by step and operates the shutter so that a picture can be taken as each successive unexposed portion of the film comes into position for exposure.

 (2) The second part consists of mechanism by which checks, fed into it sequentially, make a halting advance along a conveyor, being brought into the field of the camera, stopped temporarily, and moved on and discharged when photographed. The conveyor is so arranged that, with each stop, two new checks are brought before the camera and photographed simultaneously.

 The device by which the checks are fed to the conveyor from a stack, or possibly a hopper, may be entirely eliminated from consideration, this feature having been expressly disclaimed in the course of the hearing; and this applies as well to the arrangement for restacking the checks after discharge, shown in figure 2 of the drawing.

 (3) There is, of course, also mechanism for synchronizing the snapping of the shutter with the halting of the conveyor which carries the checks.

 Claims 5, 18, 19, 21, and 27 are in issue, and they are all for the entire combination.

 Every element of the combination is old. The specification expressly disclaims novelty in respect of the moving, film and automatic shutter of the camera, referring to these merely as "suitable mechanism well known in the art for advancing the film," etc. Page 2, line 75. Nor is it suggested that there is anything new in the device for synchronizing the operation of the shutter with the movement of the checks into the camera field.

 As to the remaining part of the combinaion -- that which automatically moves the checks, serially arranged, into and out of the focus of the camera -- it is argued that novelty can be found. But the claims for this portion of the combination are entirely too broad to be sustained as novel over the prior art.

 For example, claim 5 is for a "transparent shield upon which the lens of said camera is focused * * * a series of slips, slip moving means engaging said series of slips successively to advance the same along said shield to a focusing position with respect to said lens. * * *" Claim 27 (which counsel stated expressed the same idea in more precise language) is for a combination containing "a document driving mechanism for bodily moving a series of separated documents individually and successively transversely of the field of view of said camera for substantially unobstructed exposure thereto." These two claims may be taken as typical. Claim 18 adds "means for supporting documents to be photographed by the camera." Claims 19 and 21 are very broad with respect to this portion of the device, the former claiming "means for engaging and positively feeding the discrete documents bodily to and beyond photographing position," and, the latter, "conveyor mechanism for feeding the documents successively into the focal range of the camera in the focal plane thereof."

 I do not say that claims could not be drawn on the plaintiff's actual commercial device which would escape anticipation (as to the conveyor element) by Chandler and the other prior art patents cited. I hold only that the claims as drawn do not.

 A combination, though each separate element is old, may still be patentable if the combined function of its elements constitutes a new and inventive advance in the art. But the Jansen and De Khotinsky patents (Nos. 655,977 and 708,813) are combinations which accomplish exactly the same result as the patent in suit. The Jansen patent states its object as "recording checks, drafts and other writings or evidences of value in such manner that the record shall show a photographic facsimile of each paper to be recorded, the object being to afford for the use of banks * * * a method and means by which an exact record may be kept of the commercial paper which passes through the bank. ...


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