Burdett v. Estey. The plaintiff held to be entitled to recover on the first and second claims, without costs, although he did not, before bringing the suit, disclaim what is covered by the fourth claim, provided he should file a proper disclaimer of what is claimed in the fourth claim. (Before BLATCHFORD and WHEELER, JJ., District of Vermont, November, 1878.) BLATCHFORD, J. On the 12th of October, 1867, Riley Burdett, of Chicago, Illinois, the plaintiff in this suit, filed in the Patent Office an application for a patent for an "improvement in reed organs." The proposed specification was sworn to by him on the 28th of June, 1867. As originally sworn to and filed, the specification was in these words: "To all whom it may concern Be it known, that I, Riley Burdett, of Chicago, in the county of Cook and State of Illinois, have invented a new and useful improvement in reed organs, and I do hereby declare the following to be a full, clear and exact description of the same, reference being had to the accompanying drawings, in which Fig. 1 is a perspective view of one of my reed celeste organs; Fig. 2 is a diagram plan, showing the relative arrangement of the reeds; Fig. 3 is a vertical transverse section of my reed board, etc. This invention consists, first, in the arrangement of the reed board; second, in a method of tuning, by which a peculiar quality of tone is produced, and by which the power of the instrument is greatly increased, without an increased resistance in the action, and without an increase of power being necessary to operate the bellows. gained by my peculiar arrangement are a greatly increased. power and variety of tone. This is effected by the use of an additional set of reeds, commencing at tenor F, or thereabouts, and running upward through the scale of the instrument, and tuning the same in the peculiar manner hereinafter described. No other reed musical instrument containing the same number of reeds, so far as I know, has ever possessed so great a variety or pleasing quality of tone, while simplicity of construction, compactness of form, and ease of operation are other excellencies of this arrangement, not found in others. I will now describe particularly the construction The advantages Burdett v. Estey. of that part of my instrument which forms the subject of this patent. The case, bellows, pedal, etc., may be, in general construction and arrangement, like those in common use, and, therefore, no special description is required. The foundation of the reed board is also constructed in the usual manner, but the reed board proper, in itself, differs from the ordinary reed. board in the following particulars, viz.: The main board A contains two sets of reeds running through the entire scale, the back set of which is marked a and is tuned as a unison or diapason, while the front or octave set, marked b, is tuned an octave above the diapason. In the arrangement of these reeds, it will be seen that the lowest and longest reeds in the diapason and the octave sets are placed with their vibrating ends as near together as they can be, with room only for the tracker pin which communicates the motion of the key to the valve beneath the reeds. But, as the reeds continually shorten as they advance upward in the scale, there is necessarily a vacant space left between the diapason set a and octave set b, which constantly enlarges itself, and has heretofore been regarded as useless. Within this space, commencing on tenor F and running upward through the scale, I have introduced a third set of reeds, L, which forms the distinguishing feature of this instrument. These are placed in the reed board over the octave set b, and run obliquely to the foundation board G, as shown in Fig. 3, the vibrating ends resting on the same base as the other sets of reeds, a and b. These reeds are of the same size as the corresponding ones in the diapason a, and are tuned either a trifle above or below the diapason, but only sufficiently so to produce a slightly wavering and undulating quality or effect, without producing any discord. A few trials will enable any tuner of reed instruments to tune these reeds so as to realize the best effect. This method of tuning will, when this set of reeds, which I have named the Harmonic Celeste, is drawn and used in connection with the diapason, produce a most wonderfully pleasing and captivating effect, while the power and beauty of both sets of reeds are greatly augmented and enriched, in a manner which cannot be realized without being heard. Fig. 2 shows a top view of the reed board proper, wherein the location of Burdett v. Estey. the reeds is shown with reference to the divergence of the reeds of the diapason set a and the octave set b, and also the space afforded for the introduction of the third set, L. Fig. 3 exhibits a transverse section of my reed and foundation boards, showing the arrangement of my reeds and the valve connections. In this figure, A is the reed board. G is the foundation board. D is the valve opening. E is the valve, and F F are the throats over which the reeds are located and placed. The valve E is retained in its proper place by the pins e, e and spring H, and is operated by the tracker pin I, which rests upon its upper surface and passes upward through the reed board to the under surface of the key N. The swell boards J and K and stop dampers B and M are raised, whenever desired, by the knee stop C, Fig. 1, or by a hand draw-stop, or by some other convenient device. Another important advantage arising from the introduction of the Harmonic Celeste is, that a greater power and variety is attained, than can be by the use of any of the octave coupling arrangements now in use. These, while they augment the power, by drawing down octaves to the keys actually played, are objectionable, inasmuch as they offer more than double the resistance to the key and are thus often exceedingly undesirable. In my instrument, no such objection can ever arise, as the pressure upon the keys is always the same, whether one or all the sets of reeds are used. This is of prime importance to the performer, as the required exertion becomes involuntary and not a matter of calculation, and thus the mind is not distracted from the proper feeling and expression of the music performed. Having described my invention and its utility, what I claim as new and desire to secure by letters patent of the United States is: (1.) The arrangement, in a reed musical instrument, of the reed board A, having the diapason set a and its octave set b, and the additional set L, extending from about at tenor F, upward through the scale, substantially as and to the effect set forth; (2.) The arrangement of the diapason, its octave set and the Harmonic Celeste L, tuned as described, so as to produce the effect set forth; (3.) Tuning the additional set L, in relation to the diapason, in the manner set forth; (4.) The arrange Burdett v. Estey. ment, in a reed musical instrument, of a set of reeds tuned after the manner of the set L, in relation to and in connection with one or more sets of reeds in the same reed board." On the 4th of November, 1867, the application was rejected by the Patent Office. The letter of rejection said: "The application above referred to has been examined, and the arrangement of the reed board claimed is fully anticipated in patent granted to Riley Burdett, January 9th, 1866; also, patent granted to G. G. Hunt, October 23d, 1855. In respect to the mode of tuning claimed, the 'voix celeste' of the French, and ‘unda maris' of the German, the former in the great organ of St. Vincent de Paul, Paris, and the latter in the Church of St. Vincent at Breslau, are the same as the manner claimed. Philosophical Magazine, volume 28, page 150. The application is rejected." On the 26th of November, 1867, the plaintiff amended his 2d and 3d proposed claims, so as to read as follows (2.) The arrangement of the diapason, its octave set and the Harmonic Celeste L, tuned as described, substantially as described, so as to produce the effect set forth; (3.) In a reed musical instrument such as described, tuning the additional set L in relation to the diapason, in the manner set forth." At the same time he added three new proposed claims, as follows: (5.) The reed board A, and foundation board G, constructed with the contracted valve openings D, F, F, and the reeds arranged in relation thereto, all in the manner described; (6.) The diapason a, and its octave, or principal, b, arranged over the same valve opening, as described, so that the octave unison may be produced. when desired, without the use of coupler, and without any additional pressure upon the keys; (7.) In connection with the reed board, A, having the sets a, b and L, as described, the independent dampers B and M as set forth." On the 11th of December, 1867, the application was again rejected by the Patent Office. The letter of rejection said: "The application above referred to has been re-examined as amended. The Office can see nothing patentable in the first clause of claim. The practice of arranging the reed board in one, two or more sets of reeds, or parts of sets, is contemplated in the references given, and also in the case of Riley Bur 44 Burdett v. Estey. dett's sub-bass attachment, patent granted September roth, 1861. It cannot be patentable to apply additional reeds to the upper part of the scale, when it is in practice to apply them to the lower part of it; and, in church organs, the stops, both reed and flute, seldom extend entirely through the manual. In the second clause of claim, the tuning of the extra reeds is claimed as a new feature in the arrangement claimed in the first clause. The arrangement is the same, whether the reeds are tuned or not, and the manner in which they are tuned cannot affect the arrangement. The method of tuning claimed in the third clause is fully answered in the references given. The fact of this being a reed instrument, and the references pipe organs, cannot affect the mode of tuning, although this mode is applied to reed instruments. See an accordeon made by Busson, 166, Boulevard, Paris, at John F. Ellis' music store in this city. The fourth clause of claim is the same as the second, and the remarks upon that clause are equally applicable to this. The three additional claims filed in the amendment of November 26th, 1867, are fully anticipated in patent above referred to, granted to Riley Burdett, January 9th, 1866, and assigned to Jacob Estey & Co., except the last claim, which features are. not shown in the drawings, but are used in practice. The application is the second time rejected." The plaintiff took an appeal to the examiners in chief, and they, on the 29th of August, 1868, rendered the following decision: "The decision of the examiner, rejecting the second, third and fourth claims, is affirmed, and his decision rejecting the first and the amended claims, numbered five, six and seven, is reversed. It is considered that the references do not show the arrangement described in the last mentioned claims, and that a patent should properly be allowed therefor." Thereupon, letters patent were granted to the plaintiff, on the 23d of February, 1869, for 17 years from the 24th of August, 1868, on the foregoing specification, with the claims above numbered 1, 5, 6, 7, claims 5, 6 and 7 being severally numbered 2, 3 and 4. The entire contest in this case is as to the novelty and valid ity of the 1st, 2d and 4th claims of the plaintiff's patent. The |