CITE:  54 F.2d 195
CMON:  January 1932
PLAIN: Greenewalt, Mary Hallock
DEFND: Stanley Company of America
COURT: Circuit Court of Appeals, Third Circuit
DATE:  December 17, 1931

Appeal from the District Court for the District of Delaware.
This is an appeal by the appellant, the plaintiff below, from a decree
dismissing a bill charging infringement of appellant's reissue patent
No. 16,825 for a method of and means for associating light and music.
The original issue was on January 15, 1924, upon an application filed
August 30, 1918. The patent was reissued upon application on December
20, 1927. The issues upon hearing involved infringement of method claims
8 to 17 of the re-issued patent. The defenses set up were invalidity and
non-infringement. The court held that the claims in suit were invalid,
because of public use by the patentee more than two years prior to the
application for the patent in suit, and that the right to the patent was
barred under the provisions of R.S. 4886 (35 U.S.C.A. sec. 31).

  Aesthetic or emotional special effects are not patentable.

JUDGE: THOMPSON,  Circuit Judge
Before BUFFINGTON, DAVIS and THOMPSON,  Circuit Judges.


We have carefully examined the evidence in relation to the performances
given by the appellant in 1914 at Perkiomen Seminary and at Dayton, Ohio.
Appellant at these performances reduced to practice before audiences for
paid admissions the method of combining sound and light for aesthetic
expression, set out in the re-issued patent in claims 8 to 17. The evidence
was sufficient to convince the learned District Judge and convince this
court that these public exhibitions were outright business transactions
unaffected by an intention on the part of the patentee to use them for
experiment. Against such business transactions, a secret purpose to test
the invention, presently existing or later arising in the mind of the
inventor cannot prevail. Wilkie v. Manhattan Rubber Mfg. Co., 14 F. (2d)
(C.C.A. 3) 811. The decision might rest upon that defense alone.

It is urged, whoever, by the appellee that the association of light and
color with rhythmic sound or music, sought to be monopolized by the
appellant, as set out in her claims in suit, is not a statutory subject
matter for patent. It is conceded that method claim 10 is typical. It is
as follows:

    "The method of combining sound and light for aesthetic expression,
    consisting in producing audible sounds in timed, rhythmic relationship,
    flooding with light an area within the area of audibility of the sound
    and simultaneously producing gradual variations in the color and 
    intensity of the light in timed relationship with the emotional or
    aesthetic content of a succession of such sounds."

From the appellant's testimony and from a study of the method claims and
the specifications, it appears that it is immaterial at what point or
points in the musical composition the change in the intensity or color of
light takes place or in what degree it occurs or in what order it occurs
or what colors are used. What is done in carrying the method into effect,
and how it is done, is to be determined by the aesthetic and emotional
reaction of the individual, and such reactions may differ with different
individuals. It is apparent from the specifications and claims and the
appellant's detailed elucidation of what is meant thereby, that the
invention depends upon the artistry, caprice or peculiarities of the
performer and the susceptibility of the auditor-spectator. We do not find
authority in the law for the issuance of a patent for results depending
upon such intangible, illusory and non-material things as emotional or
aesthetic reactions. An emotional or aesthetic time relationship between
music and light, thus dependent, is not a statutory "art, machine,
manufacture, or composition of matter" susceptible of protection under the
patent laws.  R.S. 4886 (35 U.S.C.A. sec. 31). A patentable process is a
method of treatment of certain materials to produce a particular result
or product. It is an act or a series of acts performed upon the subject
matter to be transformed and reduced to a different state or thing.
Cochrane v. Deener, 94 U.S. 780.  Holland Furniture Company v. Perkins
Glue Company, 277 U.S. 245.

We conclude that the method claims are void for want of patentable
subject matter. There was no evidence produced in the court below tending
to show that the appellee in its exhibitions infringed any of the claims
of the patent for combination of means. For the reasons set out above 
and since we find no error in the findings and conclusions of the court
below, the decree is affirmed at appellant's costs.

Decree affirmed.