THE BLACK FLAG
THROUGHOUT the forty-odd years of his creative life, Edison has realized by costly experience the truth of the cynical proverb that "A patent is merely a title to a lawsuit." It is not intended, however, by this statement to lead to any inference on the part of the reader that HE stands peculiarly alone in any such experience, for it has been and still is the common lot of every successful inventor, sooner or later.
To attribute dishonesty or cupidity as the root of the defence in all patent litigation would be aiming very wide of the mark, for in no class of suits that come before the courts are there any that present a greater variety of complex, finely shaded questions, or that require more delicacy of interpretation, than those that involve the construction of patents, particularly those relating to electrical devices. Indeed, a careful study of legal procedure of this character could not be carried far without discovery of the fact that in numerous instances the differences of opinion between litigants were marked by the utmost bona fides.
On the other hand, such study would reveal many cases of undoubted fraudulent intent, as well as many bold attempts to deprive the inventor of the fruits of his endeavors by those who have sought to evade, through subtle technicalities of the law, the penalty justly due them for trickery, evasion, or open contempt of the rights of others.
In the history of science and of the arts to which the world has owed its continued progress from year to year there is disclosed one remarkable fact, and that is, that whenever any important discovery or invention has been made and announced by one man, it has almost always been disclosed later that other men—possibly widely separated and knowing nothing of the other's work—have been following up the same general lines of investigation, independently, with the same object in mind. Their respective methods might be dissimilar while tending to the same end, but it does not necessarily follow that any one of these other experimenters might ever have achieved the result aimed at, although, after the proclamation of success by one, it is easy to believe that each of the other independent investigators might readily persuade himself that he would ultimately have reached the goal in just that same way.
This peculiar coincidence of simultaneous but separate work not only comes to light on the bringing out of great and important discoveries or inventions, but becomes more apparent if a new art is disclosed, for then the imagination of previous experimenters is stimulated through wide dissemination of the tidings, sometimes resulting in more or less effort to enter the newly opened field with devices or methods that resemble closely the original and fundamental ones in principle and application. In this and other ways there arises constantly in the United States Patent Office a large number of contested cases, called "Interferences," where applications for patents covering the invention of a similar device have been independently filed by two or even more persons. In such cases only one patent can be issued, and that to the inventor who on the taking of testimony shows priority in date of invention. [20] [Footnote 20: A most remarkable instance of contemporaneous
invention and without a parallel in the annals of the United
States Patent Office, occurred when, on the same day,
February 15, 1876, two separate descriptions were filed in
that office, one a complete application and the other a
caveat, but each covering an invention for "transmitting
vocal sounds telegraphically." The application was made by
Alexander Graham Bell, of Salem, Massachusetts, and the
caveat by Elisha Gray, of Chicago, Illinois. On examination
of the two papers it was found that both of them covered
practically the same ground, hence, as only one patent could
be granted, it became necessary to ascertain the precise
hour at which the documents were respectively filed, and put
the parties in interference. This was done, with the result
that the patent was ultimately awarded to Bell.]
In the opening up and development of any new art based upon a fundamental discovery or invention, there ensues naturally an era of supplemental or collateral inventive activity—the legitimate outcome of the basic original ideas. Part of this development may be due to the inventive skill and knowledge of the original inventor and his associates, who, by reason of prior investigation, would be in better position to follow up the art in its earliest details than others, who might be regarded as mere outsiders. Thus a new enterprise may be presented before the world by its promoters in the belief that they are strongly fortified by patent rights which will protect them in a degree commensurate with the risks they have assumed.
Supplemental inventions, however, in any art, new or old, are not limited to those which emanate from the original workers, for the ingenuity of man, influenced by the spirit of the times, seizes upon any novel line of action and seeks to improve or enlarge upon it, or, at any rate, to produce more or less variation of its phases. Consequently, there is a constant endeavor on the part of a countless host of men possessing some degree of technical skill and inventive ability, to win fame and money by entering into the already opened fields of endeavor with devices and methods of their own, for which subsidiary patents may be obtainable. Some of such patents may prove to be valuable, while it is quite certain that in the natural order of things others will be commercially worthless, but none may be entirely disregarded in the history and development of the art.
It will be quite obvious, therefore, that the advent of any useful invention or discovery, great or small, is followed by a clashing of many interests which become complex in their interpretation by reason of the many conflicting claims that cluster around the main principle. Nor is the confusion less confounded through efforts made on the part of dishonest persons, who, like vultures, follow closely on the trail of successful inventors and (sometimes through information derived by underhand methods) obtain patents on alleged inventions, closely approximating the real ones, solely for the purpose of harassing the original patentee until they are bought up, or else, with the intent of competing boldly in the new business, trust in the delays of legal proceedings to obtain a sure foothold in their questionable enterprise.
Then again there are still others who, having no patent rights, but waving aside all compunction and in downright fraud, simply enter the commercial field against the whole world, using ruthlessly whatever inventive skill and knowledge the original patentee may have disclosed, and trusting to the power of money, rapid movement, and mendacious advertising to build up a business which shall presently assume such formidable proportions as to force a compromise, or stave off an injunction until the patent has expired. In nine cases out of ten such a course can be followed with relative impunity; and guided by skilful experts who may suggest really trivial changes here and there over the patented structure, and with the aid of keen and able counsel, hardly a patent exists that could not be invaded by such infringers. Such is the condition of our laws and practice that the patentee in seeking to enforce his rights labors under a terrible handicap.
And, finally, in this recital of perplexing conditions confronting the inventor, there must not be forgotten the commercial "shark," whose predatory instincts are ever keenly alert for tender victims. In the wake of every newly developed art of world-wide importance there is sure to follow a number of unscrupulous adventurers, who hasten to take advantage of general public ignorance of the true inwardness of affairs. Basing their operations on this lack of knowledge, and upon the tendency of human nature to give credence to widely advertised and high-sounding descriptions and specious promises of vast profits, these men find little difficulty in conjuring money out of the pockets of the unsophisticated and gullible, who rush to become stockholders in concerns that have "airy nothings" for a foundation, and that collapse quickly when the bubble is pricked. [21] [Footnote 21: A notable instance of the fleecing of
unsuspecting and credulous persons occurred in the early
eighties, during the furor occasioned by the introduction of
Mr. Edison's electric-light system. A corporation claiming
to have a self-generating dynamo (practically perpetual
motion) advertised its preposterous claims extensively, and
actually succeeded in selling a large amount of stock,
which, of course, proved to be absolutely worthless.]
To one who is unacquainted with the trying circumstances attending the introduction and marketing of patented devices, it might seem unnecessary that an inventor and his business associates should be obliged to take into account the unlawful or ostensible competition of pirates or schemers, who, in the absence of legal decision, may run a free course for a long time. Nevertheless, as public patronage is the element vitally requisite for commercial success, and as the public is not usually in full possession of all the facts and therefore cannot discriminate between the genuine and the false, the legitimate inventor must avail himself of every possible means of proclaiming and asserting his rights if he desires to derive any benefit from the results of his skill and labor. Not only must he be prepared to fight in the Patent Office and pursue a regular course of patent litigation against those who may honestly deem themselves to be protected by other inventions or patents of similar character, and also proceed against more palpable infringers who are openly, defiantly, and illegitimately engaged in competitive business operations, but he must, as well, endeavor to protect himself against the assaults of impudent fraud by educating the public mind to a point of intelligent apprehension of the true status of his invention and the conflicting claims involved.
When the nature of a patent right is considered it is difficult to see why this should be so. The inventor creates a new thing—an invention of utility—and the people, represented by the Federal Government, say to him in effect: "Disclose your invention to us in a patent so that we may know how to practice it, and we will agree to give you a monopoly for seventeen years, after which we shall be free to use it. If the right thus granted is invaded, apply to a Federal Court and the infringer will be enjoined and required to settle in damages." Fair and false promise! Is it generally realized that no matter how flagrant the infringement nor how barefaced and impudent the infringer, no Federal Court will grant an injunction UNTIL THE PATENT SHALL HAVE BEEN FIRST LITIGATED TO FINAL HEARING AND SUSTAINED? A procedure, it may be stated, requiring years of time and thousands of dollars, during which other infringers have generally entered the field, and all have grown fat.
Thus Edison and his business associates have been forced into a veritable maelstrom of litigation during the major part of the last forty years, in the effort to procure for themselves a small measure of protection for their interests under the numerous inventions of note that he has made at various times in that period. The earlier years of his inventive activity, while productive of many important contributions to electrical industries, such as stock tickers and printers, duplex, quadruplex, and automatic telegraphs, were not marked by the turmoil of interminable legal conflicts that arose after the beginning of the telephone and electric-light epochs. In fact, his inventions; up to and including his telephone improvements (which entered into already existing arts), had been mostly purchased by the Western Union and other companies, and while there was more or less contesting of his claims (especially in respect of the telephone), the extent of such litigation was not so conspicuously great as that which centred subsequently around his patents covering incandescent electric lighting and power systems.
Through these inventions there came into being an entirely new art, complete in its practicability evolved by Edison after protracted experiments founded upon most patient, thorough, and original methods of investigation extending over several years. Long before attaining the goal, he had realized with characteristic insight the underlying principles of the great and comprehensive problem he had started out to solve, and plodded steadily along the path that he had marked out, ignoring the almost universal scientific disbelief in his ultimate success. "Dreamer," "fool," "boaster" were among the appellations bestowed upon him by unbelieving critics. Ridicule was heaped upon him in the public prints, and mathematics were called into service by learned men to settle the point forever that he was attempting the utterly impossible.
But, presto! no sooner had he accomplished the task and shown concrete results to the world than he found himself in the anomalous position of being at once surrounded by the conditions which inevitably confront every inventor. The path through the trackless forest had been blazed, and now every one could find the way. At the end of the road was a rich prize belonging rightfully to the man who had opened a way to it, but the struggles of others to reach it by more or less honest methods now began and continued for many years. If, as a former commissioner once said, "Edison was the man who kept the path to the Patent Office hot with his footsteps," there were other great inventors abreast or immediately on his heels, some, to be sure, with legitimate, original methods and vital improvements representing independent work; while there were also those who did not trouble to invent, but simply helped themselves to whatever ideas were available, and coming from any source.
Possibly events might have happened differently had Edison been able to prevent the announcement of his electric-light inventions until he was entirely prepared to bring out the system as a whole, ready for commercial exploitation, but the news of his production of a practical and successful incandescent lamp became known and spread like wild-fire to all corners of the globe. It took more than a year after the evolution of the lamp for Edison to get into position to do actual business, and during that time his laboratory was the natural Mecca of every inquiring person. Small wonder, then, that when he was prepared to market his invention he should find others entering that market, at home and abroad, at the same time, and with substantially similar merchandise.
Edison narrates two incidents that may be taken as characteristic of a good deal that had to be contended with, coming in the shape of nefarious attack. "In the early days of my electric light," he says, "curiosity and interest brought a great many people to Menlo Park to see it. Some of them did not come with the best of intentions. I remember the visit of one expert, a well-known electrician, a graduate of Johns Hopkins University, and who then represented a Baltimore gas company. We had the lamps exhibited in a large room, and so arranged on a table as to illustrate the regular layout of circuits for houses and streets. Sixty of the men employed at the laboratory were used as watchers, each to keep an eye on a certain section of the exhibit, and see there was no monkeying with it. This man had a length of insulated No. 10 wire passing through his sleeves and around his back, so that his hands would conceal the ends and no one would know he had it. His idea, of course, was to put this wire across the ends of the supplying circuits, and short-circuit the whole thing—put it all out of business without being detected. Then he could report how easily the electric light went out, and a false impression would be conveyed to the public. He did not know that we had already worked out the safety-fuse, and that every group of lights was thus protected independently. He put this jumper slyly in contact with the wires—and just four lamps went out on the section he tampered with. The watchers saw him do it, however, and got hold of him and just led him out of the place with language that made the recording angels jump for their typewriters."
The other incident is as follows: "Soon after I had got out the incandescent light I had an interference in the Patent Office with a man from Wisconsin. He filed an application for a patent and entered into a conspiracy to 'swear back' of the date of my invention, so as to deprive me of it. Detectives were put on the case, and we found he was a 'faker,' and we took means to break the thing up. Eugene Lewis, of Eaton & Lewis, had this in hand for me. Several years later this same man attempted to defraud a leading firm of manufacturing chemists in New York, and was sent to State prison. A short time after that a syndicate took up a man named Goebel and tried to do the same thing, but again our detective-work was too much for them. This was along the same line as the attempt of Drawbaugh to deprive Bell of his telephone. Whenever an invention of large prospective value comes out, these cases always occur. The lamp patent was sustained in the New York Federal Court. I thought that was final and would end the matter, but another Federal judge out in St. Louis did not sustain it. The result is I have never enjoyed any benefits from my lamp patents, although I fought for many years." The Goebel case will be referred to later in this chapter.
The original owner of the patents and inventions covering his electric-lighting system, the Edison Electric Light Company (in which Edison was largely interested as a stockholder), thus found at the outset that its commercial position was imperilled by the activity of competitors who had sprung up like mushrooms. It became necessary to take proper preliminary legal steps to protect the interests which had been acquired at the cost of so much money and such incessant toil and experiment. During the first few years in which the business of the introduction of the light was carried on with such strenuous and concentrated effort, the attention of Edison and his original associates was constantly focused upon the commercial exploitation and the further development of the system at home and abroad. The difficult and perplexing situation at that time is thus described by Major S. B. Eaton:
"The reason for the delay in beginning and pushing suits for infringements of the lamp patent has never been generally understood. In my official position as president of the Edison Electric Light Company I became the target, along with Mr. Edison, for censure from the stockholders and others on account of this delay, and I well remember how deep the feeling was. In view of the facts that a final injunction on the lamp patent was not obtained until the life of the patent was near its end, and, next, that no damages in money were ever paid by the guilty infringers, it has been generally believed that Mr. Edison sacrificed the interest of his stockholders selfishly when he delayed the prosecution of patent suits and gave all his time and energies to manufacturing. This belief was the stronger because the manufacturing enterprises belonged personally to Mr. Edison and not to his company. But the facts render it easy to dispel this false belief. The Edison inventions were not only a lamp; they comprised also an entire system of central stations. Such a thing was new to the world, and the apparatus, as well as the manufacture thereof, was equally new. Boilers, engines, dynamos, motors, distribution mains, meters, house-wiring, safety-devices, lamps, and lamp-fixtures—all were vital parts of the whole system. Most of them were utterly novel and unknown to the arts, and all of them required quick, and, I may say, revolutionary thought and invention. The firm of Babcock & Wilcox gave aid on the boilers, Armington & Sims undertook the engines, but everything else was abnormal. No factories in the land would take up the manufacture. I remember, for instance, our interviews with Messrs. Mitchell, Vance & Co., the leading manufacturers of house gas-lighting fixtures, such as brackets and chandeliers. They had no faith in electric lighting, and rejected all our overtures to induce them to take up the new business of making electric-light fixtures. As regards other parts of the Edison system, notably the Edison dynamo, no such machines had ever existed; there was no factory in the world equipped to make them, and, most discouraging of all, the very scientific principles of their construction were still vague and experimental.
"What was to be done? Mr. Edison has never been greater than when he met and solved this crisis. 'If there are no factories,' he said, 'to make my inventions, I will build the factories myself. Since capital is timid, I will raise and supply it. The issue is factories or death.' Mr. Edison invited the cooperation of his leading stockholders. They lacked confidence or did not care to increase their investments. He was forced to go on alone. The chain of Edison shops was then created. By far the most perplexing of these new manufacturing problems was the lamp. Not only was it a new industry, one without shadow of prototype, but the mechanical devices for making the lamps, and to some extent the very machines to make those devices, were to be invented. All of this was done by the courage, capital, and invincible energy and genius of the great inventor. But Mr. Edison could not create these great and diverse industries and at the same time give requisite attention to litigation. He could not start and develop the new and hard business of electric lighting and yet spare one hour to pursue infringers. One thing or the other must wait. All agreed that it must be the litigation. And right there a lasting blow was given to the prestige of the Edison patents. The delay was translated as meaning lack of confidence; and the alert infringer grew strong in courage and capital. Moreover, and what was the heaviest blow of all, he had time, thus unmolested, to get a good start.
"In looking back on those days and scrutinizing them through the years, I am impressed by the greatness, the solitary greatness I may say, of Mr. Edison. We all felt then that we were of importance, and that our contribution of effort and zeal were vital. I can see now, however, that the best of us was nothing but the fly on the wheel. Suppose anything had happened to Edison? All would have been chaos and ruin.. To him, therefore, be the glory, if not the profit."
The foregoing remarks of Major Eaton show authoritatively how the much-discussed delay in litigating the Edison patents was so greatly misunderstood at the time, and also how imperatively necessary it was for Edison and his associates to devote their entire time and energies to the commercial development of the art. As the lighting business increased, however, and a great number of additional men were initiated into its mysteries, Edison and his experts were able to spare some time to legal matters, and an era of active patent litigation against infringers was opened about the year 1885 by the Edison company, and thereafter continued for many years.
While the history of this vast array of legal proceedings possesses a fascinating interest for those involved, as well as for professional men, legal and scientific, it could not be expected that it would excite any such feeling on the part of a casual reader. Hence, it is not proposed to encumber this narrative with any detailed record of the numerous suits that were brought and conducted through their complicated ramifications by eminent counsel. Suffice it to say that within about sixteen years after the commencement of active patent litigation, there had been spent by the owners of the Edison lighting patents upward of two million dollars in prosecuting more than two hundred lawsuits brought against persons who were infringing many of the patents of Edison on the incandescent electric lamp and component parts of his system. Over fifty separate patents were involved in these suits, including the basic one on the lamp (ordinarily called the "Filament" patent), other detail lamp patents, as well as those on sockets, switches, dynamos, motors, and distributing systems.
The principal, or "test," suit on the "Filament" patent was that brought against "The United States Electric Lighting Company," which became a cause celebre in the annals of American jurisprudence. Edison's claims were strenuously and stubbornly contested throughout a series of intense legal conflicts that raged in the courts for a great many years. Both sides of the controversy were represented by legal talent of the highest order, under whose examination and cross-examination volumes of testimony were taken, until the printed record (including exhibits) amounted to more than six thousand pages. Scientific and technical literature and records in all parts of the civilized world were subjected to the most minute scrutiny of opposing experts in the endeavor to prove Edison to be merely an adapter of methods and devices already projected or suggested by others. The world was ransacked for anything that might be claimed as an anticipation of what he had done. Every conceivable phase of ingenuity that could be devised by technical experts was exercised in the attempt to show that Edison had accomplished nothing new. Everything that legal acumen could suggest—every subtle technicality of the law—all the complicated variations of phraseology that the novel nomenclature of a young art would allow—all were pressed into service and availed of by the contestors of the Edison invention in their desperate effort to defeat his claims. It was all in vain, however, for the decision of the court was in favor of Edison, and his lamp patent was sustained not only by the tribunal of the first resort, but also by the Appellate Court some time afterward.
The first trial was had before Judge Wallace in the United States Circuit Court for the Southern District of New York, and the appeal was heard by Judges Lacombe and Shipman, of the United States Circuit Court of Appeals. Before both tribunals the cause had been fully represented by counsel chosen from among the most eminent representatives of the bar at that time, those representing the Edison interests being the late Clarence A. Seward and Grosvenor P. Lowrey, together with Sherburne Blake Eaton, Albert H. Walker, and Richard N. Dyer. The presentation of the case to the courts had in both instances been marked by masterly and able arguments, elucidated by experiments and demonstrations to educate the judges on technical points. Some appreciation of the magnitude of this case may be gained from the fact that the argument on its first trial employed a great many days, and the minutes covered hundreds of pages of closely typewritten matter, while the argument on appeal required eight days, and was set forth in eight hundred and fifty pages of typewriting. Eliminating all purely forensic eloquence and exparte statements, the addresses of counsel in this celebrated suit are worthy of deep study by an earnest student, for, taken together, they comprise the most concise, authentic, and complete history of the prior state of the art and the development of the incandescent lamp that had been made up to that time. [22] [Footnote 22: The argument on appeal was conducted with the dignity
and decorum that characterize such a proceeding in that
court. There is usually little that savors of humor in the
ordinary conduct of a case of this kind, but in the present
instance a pertinent story was related by Mr. Lowrey, and it
is now reproduced. In the course of his address to the
court, Mr. Lowrey said:
"I have to mention the name of one expert whose testimony
will, I believe, be found as accurate, as sincere, as
straightforward as if it were the preaching of the gospel. I
do it with great pleasure, and I ask you to read the
testimony of Charles L. Clarke along with that of Thomas A.
Edison. He had rather a hard row to hoe. He is a young
gentleman; he is a very well-instructed man in his
profession; he is not what I have called in the argument
below an expert in the art of testifying, like some of the
others, he has not yet become expert; what he may descend to
later cannot be known; he entered upon his first experience,
I think, with my brother Duncan, who is no trifler when he
comes to deal with these questions, and for several months
Mr. Clarke was pursued up and down, over a range of
suggestions of what he would have thought if he had thought
something else had been said at some time when something
else was not said."
Mr. Duncan—"I got three pages a day out of him, too."
Mr. Lowrey—"Well, it was a good result. It always recalled
to me what I venture now, since my friend breaks in upon me
in this rude manner, to tell the court as well illustrative
of what happened there. It is the story of the pickerel and
the roach. My friend, Professor Von Reisenberg, of the
University of Ghent, pursued a series of investigations into
the capacity of various animals to receive ideas. Among the
rest he put a pickerel into a tank containing water, and
separated across its middle by a transparent glass plate,
and on the other side he put a red roach. Now your Honors
both know how a pickerel loves a red roach, and I have no
doubt you will remember that he is a fish of a very low
forehead and an unlimited appetite. When this pickerel saw
the red roach through the glass, he made one of those awful
dashes which is usually the ruin of whatever stands in its
way; but he didn't reach the red roach. He received an
impression, doubtless. It was not sufficient, however, to
discourage him, and he immediately tried again, and he
continued to try for three-quarters of an hour. At the end
of three-quarters of an hour he seemed a little shaken and
discouraged, and stopped, and the red roach was taken out
for that day and the pickerel left. On the succeeding day
the red roach was restored, and the pickerel had forgotten
the impressions of the first day, and he repeated this
again. At the end of the second day the roach was taken out.
This was continued, not through so long a period as the
effort to take my friend Clarke and devour him, but for a
period of about three weeks. At the end of the three weeks,
the time during which the pickerel persisted each day had
been shortened and shortened, until it was at last
discovered that he didn't try at all. The plate glass was
then removed, and the pickerel and the red roach sailed
around together in perfect peace ever afterward. The
pickerel doubtless attributed to the roach all this shaking,
the rebuff which he had received. And that is about the
condition in which my brother Duncan and my friend Clarke
were at the end of this examination."
Mr. Duncan—"I notice on the redirect that Mr. Clarke
changed his color."
Mr. Lowrey—"Well, perhaps he was a different kind of a
roach then; but you didn't succeed in taking him.
"I beg your Honors to read the testimony of Mr. Clarke in
the light of the anecdote of the pickerel and the roach."
Owing to long-protracted delays incident to the taking of testimony and preparation for trial, the argument before the United States Circuit Court of Appeals was not had until the late spring of 1892, and its decision in favor of the Edison Lamp patent was filed on October 4, 1892, MORE THAN TWELVE YEARS AFTER THE ISSUANCE OF THE PATENT ITSELF.
As the term of the patent had been limited under the law, because certain foreign patents had been issued to Edison before that in this country, there was now but a short time left for enjoyment of the exclusive rights contemplated by the statute and granted to Edison and his assigns by the terms of the patent itself. A vigorous and aggressive legal campaign was therefore inaugurated by the Edison Electric Light Company against the numerous infringing companies and individuals that had sprung up while the main suit was pending. Old suits were revived and new ones instituted. Injunctions were obtained against many old offenders, and it seemed as though the Edison interests were about to come into their own for the brief unexpired term of the fundamental patent, when a new bombshell was dropped into the Edison camp in the shape of an alleged anticipation of the invention forty years previously by one Henry Goebel. Thus, in 1893, the litigation was reopened, and a protracted series of stubbornly contested conflicts was fought in the courts.
Goebel's claims were not unknown to the Edison Company, for as far back as 1882 they had been officially brought to its notice coupled with an offer of sale for a few thousand dollars. A very brief examination into their merits, however, sufficed to demonstrate most emphatically that Goebel had never made a practical incandescent lamp, nor had he ever contributed a single idea or device bearing, remotely or directly, on the development of the art. Edison and his company, therefore, rejected the offer unconditionally and declined to enter into any arrangements whatever with Goebel. During the prosecution of the suits in 1893 it transpired that the Goebel claims had also been investigated by the counsel of the defendant company in the principal litigation already related, but although every conceivable defence and anticipation had been dragged into the case during the many years of its progress, the alleged Goebel anticipation was not even touched upon therein. From this fact it is quite apparent that they placed no credence on its bona fides.
But desperate cases call for desperate remedies. Some of the infringing lamp-manufacturing concerns, which during the long litigation had grown strong and lusty, and thus far had not been enjoined by the court, now saw injunctions staring them in the face, and in desperation set up the Goebel so-called anticipation as a defence in the suits brought against them.
This German watchmaker, Goebel, located in the East Side of New York City, had undoubtedly been interested, in a desultory kind of way, in simple physical phenomena, and a few trifling experiments made by him some forty or forty-five years previously were magnified and distorted into brilliant and all-comprehensive discoveries and inventions. Avalanches of affidavits of himself, "his sisters and his cousins and his aunts," practically all persons in ordinary walks of life, and of old friends, contributed a host of recollections that seemed little short of miraculous in their detailed accounts of events of a scientific nature that were said to have occurred so many years before. According to affidavits of Goebel himself and some of his family, nothing that would anticipate Edison's claim had been omitted from his work, for he (Goebel) claimed to have employed the all-glass globe, into which were sealed platinum wires carrying a tenuous carbon filament, from which the occluded gases had been liberated during the process of high exhaustion. He had even determined upon bamboo as the best material for filaments. On the face of it he was seemingly gifted with more than human prescience, for in at least one of his exhibit lamps, said to have been made twenty years previously, he claimed to have employed processes which Edison and his associates had only developed by several years of experience in making thousands of lamps!
The Goebel story was told by the affidavits in an ingenuous manner, with a wealth of simple homely detail that carried on its face an appearance of truth calculated to deceive the elect, had not the elect been somewhat prepared by their investigation made some eleven years before.
The story was met by the Edison interests with counter-affidavits, showing its utter improbabilities and absurdities from the standpoint of men of science and others versed in the history and practice of the art; also affidavits of other acquaintances and neighbors of Goebel flatly denying the exhibitions he claimed to have made. The issue thus being joined, the legal battle raged over different sections of the country. A number of contumeliously defiant infringers in various cities based fond hopes of immunity upon the success of this Goebel evidence, but were defeated. The attitude of the courts is well represented in the opinion of Judge Colt, rendered in a motion for injunction against the Beacon Vacuum Pump and Electrical Company. The defence alleged the Goebel anticipation, in support of which it offered in evidence four lamps, Nos. 1, 2, and 3 purporting to have been made before 1854, and No. 4 before 1872. After a very full review of the facts in the case, and a fair consideration of the defendants' affidavits, Judge Colt in his opinion goes on to say:
"It is extremely improbable that Henry Goebel constructed a practical incandescent lamp in 1854. This is manifest from the history of the art for the past fifty years, the electrical laws which since that time have been discovered as applicable to the incandescent lamp, the imperfect means which then existed for obtaining a vacuum, the high degree of skill necessary in the construction of all its parts, and the crude instruments with which Goebel worked.
"Whether Goebel made the fiddle-bow lamps, 1, 2, and 3, is not necessary to determine. The weight of evidence on this motion is in the direction that he made these lamp or lamps similar in general appearance, though it is manifest that few, if any, of the many witnesses who saw the Goebel lamp could form an accurate judgment of the size of the filament or burner. But assuming they were made, they do not anticipate the invention of Edison. At most they were experimental toys used to advertise his telescope, or to flash a light upon his clock, or to attract customers to his shop. They were crudely constructed, and their life was brief. They could not be used for domestic purposes. They were in no proper sense the practical commercial lamp of Edison. The literature of the art is full of better lamps, all of which are held not to anticipate the Edison patent.
"As for Lamp No. 4, I cannot but view it with suspicion. It presents a new appearance. The reason given for not introducing it before the hearing is unsatisfactory. This lamp, to my mind, envelops with a cloud of distrust the whole Goebel story. It is simply impossible under the circumstances to believe that a lamp so constructed could have been made by Goebel before 1872. Nothing in the evidence warrants such a supposition, and other things show it to be untrue. This lamp has a carbon filament, platinum leading-in wires, a good vacuum, and is well sealed and highly finished. It is said that this lamp shows no traces of mercury in the bulb because the mercury was distilled, but Goebel says nothing about distilled mercury in his first affidavit, and twice he speaks of the particles of mercury clinging to the inside of the chamber, and for that reason he constructed a Geissler pump after he moved to 468 Grand Street, which was in 1877. Again, if this lamp has been in his possession since before 1872, as he and his son swear, why was it not shown to Mr. Crosby, of the American Company, when he visited his shop in 1881 and was much interested in his lamps? Why was it not shown to Mr. Curtis, the leading counsel for the defendants in the New York cases, when he was asked to produce a lamp and promised to do so? Why did not his son take this lamp to Mr. Bull's office in 1892, when he took the old fiddle-bow lamps, 1, 2, and 3? Why did not his son take this lamp to Mr. Eaton's office in 1882, when he tried to negotiate the sale of his father's inventions to the Edison Company? A lamp so constructed and made before 1872 was worth a large sum of money to those interested in defeating the Edison patent like the American Company, and Goebel was not a rich man. Both he and one of his sons were employed in 1881 by the American Company. Why did he not show this lamp to McMahon when he called in the interest of the American Company and talked over the electrical matters? When Mr. Dreyer tried to organize a company in 1882, and procured an option from him of all his inventions relating to electric lighting for which $925 was paid, and when an old lamp of this kind was of vital consequence and would have insured a fortune, why was it not forthcoming? Mr. Dreyer asked Goebel to produce an old lamp, and was especially anxious to find one pending his negotiations with the Edison Company for the sale of Goebel's inventions. Why did he not produce this lamp in his interviews with Bohm, of the American Company, or Moses, of the Edison Company, when it was for his interest to do so? The value of such an anticipation of the Edison lamp was made known to him. He was desirous of realizing upon his inventions. He was proud of his incandescent lamps, and was pleased to talk about them with anybody who would listen. Is it conceivable under all these circumstances, that he should have had this all-important lamp in his possession from 1872 to 1893, and yet no one have heard of it or seen it except his son? It cannot be said that ignorance of the English language offers an excuse. He knew English very well although Bohm and Dreyer conversed with him in German. His children spoke English. Neither his ignorance nor his simplicity prevented him from taking out three patents: the first in 1865 for a sewing-machine hemmer, and the last in 1882 for an improvement in incandescent lamps. If he made Lamp No. 4 previous to 1872, why was it not also patented?
"There are other circumstances which throw doubt on this alleged Goebel anticipation. The suit against the United States Electric Lighting Company was brought in the Southern District of New York in 1885. Large interests were at stake, and the main defence to the Edison patent was based on prior inventions. This Goebel claim was then investigated by the leading counsel for the defence, Mr. Curtis. It was further inquired into in 1892, in the case against the Sawyer-Man Company. It was brought to the attention and considered by the Edison Company in 1882. It was at that time known to the American Company, who hoped by this means to defeat the monopoly under the Edison patent. Dreyer tried to organize a company for its purchase. Young Goebel tried to sell it. It must have been known to hundreds of people. And now when the Edison Company after years of litigation, leaving but a short time for the patent to run, have obtained a final adjudication establishing its validity, this claim is again resurrected to defeat the operation of the judgment so obtained. A court in equity should not look with favor on such a defence. Upon the evidence here presented, I agree with the first impression of Mr. Curtis and with the opinion of Mr. Dickerson that whatever Goebel did must be considered as an abandoned experiment.
"It has often been laid down that a meritorious invention is not to be defeated by something which rests in speculation or experiment, or which is rudimentary or incomplete.
"The law requires not conjecture, but certainty. It is easy after an important invention has gone into public use for persons to come forward with claims that they invented the same thing years before, and to endeavor to establish this by the recollection of witnesses as to events long past. Such evidence is to be received with great caution, and the presumption of novelty arising from the grant of the patent is not to be overcome except upon clear and convincing proof.
"When the defendant company entered upon the manufacture of incandescent lamps in May, 1891, it well knew the consequences which must follow a favorable decision for the Edison Company in the New York case."
The injunction was granted.
Other courts took practically the same view of the Goebel story as was taken by Judge Colt, and the injunctions asked in behalf of the Edison interests were granted on all applications except one in St. Louis, Missouri, in proceedings instituted against a strong local concern of that city.
Thus, at the eleventh hour in the life of this important patent, after a long period of costly litigation, Edison and his associates were compelled to assume the defensive against a claimant whose utterly baseless pretensions had already been thoroughly investigated and rejected years before by every interested party, and ultimately, on examination by the courts, pronounced legally untenable, if not indeed actually fraudulent. Irritating as it was to be forced into the position of combating a proposition so well known to be preposterous and insincere, there was nothing else to do but to fight this fabrication with all the strenuous and deadly earnestness that would have been brought to bear on a really meritorious defence. Not only did this Goebel episode divert for a long time the energies of the Edison interests from activities in other directions, but the cost of overcoming the extravagantly absurd claims ran up into hundreds of thousands of dollars.
Another quotation from Major Eaton is of interest in this connection:
"Now a word about the Goebel case. I took personal charge of running down this man and his pretensions in the section of the city where he lived and among his old neighbors. They were a typical East Side lot—ignorant, generally stupid, incapable of long memory, but ready to oblige a neighbor and to turn an easy dollar by putting a cross-mark at the bottom of a forthcoming friendly affidavit. I can say in all truth and justice that their testimony was utterly false, and that the lawyers who took it must have known it.
"The Goebel case emphasizes two defects in the court procedure in patent cases. One is that they may be spun out almost interminably, even, possibly, to the end of the life of the patent; the other is that the judge who decides the case does not see the witnesses. That adverse decision at St. Louis would never have been made if the court could have seen the men who swore for Goebel. When I met Mr. F. P. Fish on his return from St. Louis, after he had argued the Edison side, he felt keenly that disadvantage, to say nothing of the hopeless difficulty of educating the court."
In the earliest days of the art, when it was apparent that incandescent lighting had come to stay, the Edison Company was a shining mark at which the shafts of the dishonest were aimed. Many there were who stood ready to furnish affidavits that they or some one else whom they controlled had really invented the lamp, but would obligingly withdraw and leave Edison in possession of the field on payment of money. Investigation of these cases, however, revealed invariably the purely fraudulent nature of all such offers, which were uniformly declined.
As the incandescent light began to advance rapidly in public favor, the immense proportions of the future market became sufficiently obvious to tempt unauthorized persons to enter the field and become manufacturers. When the lamp became a thoroughly established article it was not a difficult matter to copy it, especially when there were employees to be hired away at increased pay, and their knowledge utilized by the more unscrupulous of these new competitors. This is not conjecture but known to be a fact, and the practice continued many years, during which new lamp companies sprang up on every side. Hence, it is not surprising that, on the whole, the Edison lamp litigation was not less remarkable for quantity than quality. Between eighty and ninety separate suits upon Edison's fundamental lamp and detail patents were brought in the courts of the United States and prosecuted to completion.
In passing it may be mentioned that in England France, and Germany also the Edison fundamental lamp patent was stubbornly fought in the judicial arena, and his claim to be the first inventor of practical incandescent lighting was uniformly sustained in all those countries.
Infringement was not, however, confined to the lamp alone, but, in America, extended all along the line of Edison's patents relating to the production and distribution of electric light, including those on dynamos, motors, distributing systems, sockets, switches, and other details which he had from time to time invented. Consequently, in order to protect its interests at all points, the Edison Company had found it necessary to pursue a vigorous policy of instituting legal proceedings against the infringers of these various patents, and, in addition to the large number of suits on the lamp alone, not less than one hundred and twenty-five other separate actions, involving some fifty or more of Edison's principal electric-lighting patents, were brought against concerns which were wrongfully appropriating his ideas and actively competing with his companies in the market.
The ramifications of this litigation became so extensive and complex as to render it necessary to institute a special bureau, or department, through which the immense detail could be systematically sifted, analyzed, and arranged in collaboration with the numerous experts and counsel responsible for the conduct of the various cases. This department was organized in 1889 by Major Eaton, who was at this time and for some years afterward its general counsel.
In the selection of the head of this department a man of methodical and analytical habit of mind was necessary, capable of clear reasoning, and at the same time one who had gained a thoroughly practical experience in electric light and power fields, and the choice fell upon Mr. W. J. Jenks, the manager of the Edison central station at Brockton, Massachusetts. He had resigned that position in 1885, and had spent the intervening period in exploiting the Edison municipal system of lighting, as well as taking an active part in various other branches of the Edison enterprises.
Thus, throughout the life of Edison's patents on electric light, power, and distribution, the interminable legal strife has continued from day to day, from year to year. Other inventors, some of them great and notable, have been coming into the field since the foundation of the art, patents have multiplied exceedingly, improvement has succeeded improvement, great companies have grown greater, new concerns have come into existence, coalitions and mergers have taken place, all tending to produce changes in methods, but not much in diminution of patent litigation. While Edison has not for a long time past interested himself particularly in electric light and power inventions, the bureau which was initiated under the old regime in 1889 still continues, enlarged in scope, directed by its original chief, but now conducted under the auspices of several allied companies whose great volumes of combined patents (including those of Edison) cover a very wide range of the electrical field.
As the general conception and theory of a lawsuit is the recovery of some material benefit, the lay mind is apt to conceive of great sums of money being awarded to a complainant by way of damages upon a favorable decision in an important patent case. It might, therefore, be natural to ask how far Edison or his companies have benefited pecuniarily by reason of the many belated victories they have scored in the courts. To this question a strict regard for truth compels the answer that they have not been benefited at all, not to the extent of a single dollar, so far as cash damages are concerned.
It is not to be denied, however, that substantial advantages have accrued to them more or less directly through the numerous favorable decisions obtained by them as a result of the enormous amount of litigation, in the prosecution of which so great a sum of money has been spent and so concentrated an amount of effort and time lavished. Indeed, it would be strange and unaccountable were the results otherwise. While the benefits derived were not directly pecuniary in their nature, they were such as tended to strengthen commercially the position of the rightful owners of the patents. Many irresponsible and purely piratical concerns were closed altogether; others were compelled to take out royalty licenses; consolidations of large interests were brought about; the public was gradually educated to a more correct view of the true merits of conflicting claims, and, generally speaking, the business has been greatly unified and brought within well-defined and controllable lines.
Not only in relation to his electric light and power inventions has the progress of Edison and his associates been attended by legal controversy all through the years of their exploitation, but also in respect to other inventions, notably those relating to the phonograph and to motion pictures.
The increasing endeavors of infringers to divert into their own pockets some of the proceeds arising from the marketing of the devices covered by Edison's inventions on these latter lines, necessitated the institution by him, some years ago, of a legal department which, as in the case of the light inventions, was designed to consolidate all law and expert work and place it under the management of a general counsel. The department is of considerable extent, including a number of resident and other associate counsel, and a general office staff, all of whom are constantly engaged from day to day in patent litigation and other legal work necessary to protect the Edison interests. Through their labors the old story is reiterated in the contesting of approximate but conflicting claims, the never-ending effort to suppress infringement, and the destruction as far as possible of the commercial pirates who set sail upon the seas of all successful enterprises. The details, circumstances, and technical questions are, of course, different from those relating to other classes of inventions, and although there has been no cause celebre concerning the phonograph and motion-picture patents, the contention is as sharp and strenuous as it was in the cases relating to electric lighting and heavy current technics.
Mr. Edison's storage battery and the poured cement house have not yet reached the stage of great commercial enterprises, and therefore have not yet risen to the dignity of patent litigation. If, however, the experience of past years is any criterion, there will probably come a time in the future when, despite present widely expressed incredulity and contemptuous sniffs of unbelief in the practicability of his ideas in these directions, ultimate success will give rise to a series of hotly contested legal conflicts such as have signalized the practical outcome of his past efforts in other lines.
When it is considered what Edison has done, what the sum and substance of his contributions to human comfort and happiness have been, the results, as measured by legal success, have been pitiable. With the exception of the favorable decision on the incandescent lamp filament patent, coming so late, however, that but little practical good was accomplished, the reader may search the law-books in vain for a single decision squarely and fairly sustaining a single patent of first order. There never was a monopoly in incandescent electric lighting, and even from the earliest days competitors and infringers were in the field reaping the benefits, and though defeated in the end, paying not a cent of tribute. The market was practically as free and open as if no patent existed. There never was a monopoly in the phonograph; practically all of the vital inventions were deliberately appropriated by others, and the inventor was laughed at for his pains. Even so beautiful a process as that for the duplication of phonograph records was solemnly held by a Federal judge as lacking invention—as being obvious to any one. The mere fact that Edison spent years of his life in developing that process counted for nothing.
The invention of the three-wire system, which, when it was first announced as saving over 60 per cent. of copper in the circuits, was regarded as an utter impossibility—this patent was likewise held by a Federal judge to be lacking in invention. In the motion-picture art, infringements began with its very birth, and before the inevitable litigation could be terminated no less than ten competitors were in the field, with whom compromises had to be made.
In a foreign country, Edison would have undoubtedly received signal honors; in his own country he has won the respect and admiration of millions; but in his chosen field as an inventor and as a patentee his reward has been empty. The courts abroad have considered his patents in a liberal spirit and given him his due; the decisions in this country have fallen wide of the mark. We make no criticism of our Federal judges; as a body they are fair, able, and hard-working; but they operate under a system of procedure that stifles absolutely the development of inventive genius.
Until that system is changed and an opportunity offered for a final, swift, and economical adjudication of patent rights, American inventors may well hesitate before openly disclosing their inventions to the public, and may seriously consider the advisability of retaining them as "trade secrets."
