decided: March 19, 1888.
THE TELEPHONE CASES.
AMERICAN BELL TELEPHONE COMPANY.
MOLECULAR TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
AMERICAN BELL TELEPHONE COMPANY
MOLECULAR TELEPHONE COMPANY.
CLAY COMMERCIAL TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
PEOPLE'S TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
OVERLAND TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY. (PART TWO OF THREE)
SUPREME COURT OF THE UNITED STATES
Nos. 10, 361, 362, 709, 770, 771.
8 S. Ct. 778, 126 U.S. 1, 31 L. Ed. 863, 1888.SCT.40084 <http://www.versuslaw.com>
decided: March 19, 1888.
THE TELEPHONE CASES.
AMERICAN BELL TELEPHONE COMPANY.
MOLECULAR TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
AMERICAN BELL TELEPHONE COMPANY
MOLECULAR TELEPHONE COMPANY.
CLAY COMMERCIAL TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
PEOPLE'S TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY.
OVERLAND TELEPHONE COMPANY
AMERICAN BELL TELEPHONE COMPANY. (PART TWO OF THREE)
They are again met by certain facts. One is that the employment of some kind of a variable resistance (a liquid transmitter is one well-known instance of variable resistance) was in Mr. Bell's mind as a device to be employed in the transmitter as early as May 4, 1875, nine months before the Gray caveat existed, and was disclosed by him in a letter of that date which is in the record. They are also met by the fact that the character and structure of Mr. Bell's liquid transmitter is as different from that of the Gray caveat as one liquid transmitter can be frm another; and by the further fact that, instead of the use of mercury being an electrical absurdity, it is a fact proved in the case that Mr. Bell actually made a mercury transmitter, and that it talked, while there is no evidence whatever even tending to show that the water transmitter of Gray ever did or ever could talk, the only proof touching the subject being that the one he tried to make in the summer of 1876 would not talk at all. Thus the idea of employing a variable resistance transmitter was expressed by Mr. Bell in writing nine months before Gray thought of the subject, and the form in which Mr. Bell embodied it was so strikingly different from that of Gray as of itself to prove originality and disprove copying. So Bell already had the idea, and did not copy the form. They are met by the further fact, stated in their brief, that the file of the Bell patent was, in 1879, well known and had been examined by many people. Indeed it is an essential part of their hypothesis that it was read and handled so much that many pencil marks which they aver were there in 1876, and were not there when a certain certified copy was made in April, 1879, had been entirely obliterated by handling. According to their story, there were thirty-eight different passages altered in pencil. It is impossible that such a peculiar and well-known paper in such an important case could have been at that time replaced by a clean copy, all written in ink, without at once attracting the attention of the official in charge of the file, and all of those who had occasion to examine it; and it is certain that any man must have known that such a substitution could not be concealed, but would at once draw attention, and therefore that no man would have attempted it.
These considerations, the infamous character of the act alleged, and the fact that no evidence supports it, dispose of the charge thus tardily made.
They say, however, that one piece of evidence does support it. They refer to a certain certified copy of the application procured by the Bell Company from the Patent Office April 10, 1879, soon afterwards filed in the Circuit Court at Boston and printed in the summer of that year in the Dowd case, and printed record of which was, by stipulation and for convenience, introduced into or reprinted in the other cases before this court. They aver that that certified copy (here called the Boston exhibit) had thirty-eight erasures or interlineations, indicated, as there printed, by parenthesis marks or by redundant words on the printed page; and they allege that that paper shows that when that certified copy was made, on April 10, 1879, the original was in that interlined and altered condition (because the habit of the Patent Office in making a copy of a specification is to make it, as near as may be, in facsimile) and that the clean paper now in the files must therefore be a forgery. That is the ground, and the only specific proof on which they assert this forgery. One answer to that is that this copy of 1879 was originally put in evidence by Mr. Bell himself, as part of his own deposition, and it is impossible to believe that he would have voluntarily put into the case conclusive evidence of these interlineations just at a time when, according to our opponents' story, he and his associates were so terrified at the prospect of the alleged interlineations being known that they were perpetrating a third forgery to conceal them. They do not produce the original certified copy of April 10, 1879, but rely on what they assume to be a correctly printed copy of it the printed transcript.
Our opponents point to another circumstance. It appears that in the fall of 1875 Mr. Bell prepared several copies of an early draft of the specification in the condition in which it then was. One of these copies so written by Mr. Bell was afterwards much altered and amended by him; the changes were completed about the middle of January, 1876, when this particular paper went to Washington; and a fair copy of it as amended, made in his solicitors' office at Washington, became the application sworn to in Boston, January 20, and filed February 14, 1876. Another copy of the early draft went to Mr. George Brown of Toronton, who, on January 25, 1876, took it to England with several other specifications of Mr. Bell, intending to take English patents on all of them. Mr. Brown did not take out any English patents whatever, but brought back the papers with him, and in the fall of 1878 Mr. Bell obtained them from him and himself offered them in evidence. The specification as it now appears in the files, and the patent as issued in 1876 (both exactly alike), differ from the George Brown specification, in that they contain the liquid transmitter clauses and also vary in thirty-seven or thirty-eight other passages from the George Brown specification. Attention was not called in taking testimony, nor at the trial below, to these differences, but Mr. Bell, in giving a history of his work, stated that he repeatedly corrected and altered and improved his American specification up to the last moment, and did not complete his amendments until just as he sent it to Washington in the middle of January, 1876. Nor is there any specific testimony as to when he last touched pen to the George Brown specification. The proof is that he prepared it in October and November, 1875, and that on December 29, in pursuance of a previous verbal understanding of September, 1875, he made a contract with George Brown which required him to at once furnish the specifications. He testified that he began to prepare the specification for Brown early in October, 1875, and that he furnished it to Mr. Brown between the date of that contract and January 25, 1876, when Mr. Brown sailed for England. He did not remember during which part of that period the specifications were furnished, but the just inference is that it was a day or two after the contract, because they had been prepared some months previously in order to be furnished, and he agreed to furnish them at once, as Mr. Brown was expecting to immediately sail for England, and he returned from Toronto to Boston instantly upon the execution of the contract. There was nothing in the case which seemed to make the precise date material.The fair conclusion from the testimony is that immediately after signing the Brown contract of December 29, 1875, he furnished the specifications which he had had on hand two months for that purpose just in the condition in which they had been, -- a rough paper with many corrections and interlineations, which is the condition of the paper, now an exhibit in the case; that he continued to improve and amend the American specification, and, after he had parted with the Brown one, during the ensuing two weeks before the American specification went to Washington, wrote the liquid transmitter clause into it. This is corroborated by the fact that a sworn paper filed by him in the Patent Office in 1878, states under oath that the precise form known as the liquid transmitter was devised by him in the first half of January, 1876, though the idea of employing some form of variable resistance as distinguished from the magneto transmitter had been expressed by him in a letter of May 4, 1875. The date thus stated for the liquid invention is between the time when we believe he furnished the drafts to Mr. Brown, and the day when he sent his last corrected specification to the solicitor at Washington. It is impossible therefore to draw from the George Brown papers any inference unfavorable to Mr. Bell.
To support their charges, our opponents have really but one piece of evidence, and that they rely on and have argued at great length in their brief. The printed copy of the Bell file found in the printed Down record, and reprinted in some of the other cases, contains thirty-eight instances of what appear to be interlineations or cancellations.
Thus one paragraph as there printed reads: "The duration of the sound may be used (made) to indicate (signify) the dot or dash of the Morse alphabet, and thus a telegraphic despatch may be indicated (can be transmitted) by alternately interrupting and renewing the sound."
They argue that this paragraph was written in the application as filed with one set of the synonymous words, e.g. "signify," regularly written in ink; that afterwards that word was cancelled by drawing a pencil mark through it, and the other word, "indicate," interlined in pencil; and that the printer printed both in the same line. There are thirty-eight passages which they point out as containing such changes. Among such supposed interlineations or alterations, generally indicated (but not always correctly) by parenthesis marks in the printed copy, are the clauses about the liquid transmitter, which are included in parenthesis in that Dowd print. Now, it is found in every one of these cases of a deplication of words, e.g. "indicate (signify)" etc., that one of the two words is the word of the patent as issued, and the other word is the word of the older George Brown specification. Our opponents say that this arose in the following way: That the application filed by Mr. Bell February 14, 1876, was an ink copy of the George Brown specification; that after it was filed he dishonestly altered it by pencil cancellation and interpolation, between February 27 and March 3, and that this altered copy became the patent; that the canceling marks have been rubbed out by constant handling of the paper before April, 1879 (and it is an essential part of their hypothesis that the alleged canceling marks were thus accidentally obliterated), while by some curious freak of nature every one of the interlineations remained, so that both sets of words appeared in the certified copy made April 10, 1879. From this they argue that the application as filed was a copy of the George Brown specification, and did not have the liquid transmitter part in it, and that that was interpolated afterwards in the dishonest and criminal manner alleged.
It may be assumed that the printed paper in the Dowd record which contains the deplication of words, one of which in each case is that of the George Brown specification, and the other of which in each case is that of the patent, could not have come into existence except by the act of some one who had both sets of words before him or in his mind, and was interlining one set into a paper which originally had the other. But whether the person had the George Brown form, and interlined the words of the patent, or whether he had the form of the patent and interlined the George Brown words, the paper would equally have the same two sets.The original paper itself, however, would show which he was doing. If he had a paper ink-written in the words of the patent, and was interlining the George Brown words, so as to show them also, then, in the actual paper, the words of the patent would be found regularly fair-written in ink, with the George Brown words interlined; if he were writing with pencil on a fair copy of the George Brown draft, to make it read like the patent, then the George Brown words would be fairwritten in ink and the words of the patent interlined. Now, the copy, as printed, does not show in which of these two ways the duplication occurred. The original exhibit itself, filed in Boston, would show the fact, but they do not exhibit that to the court.
The truth about it is simply this: The certified copy of the application, procured April 10, 1879, by the Bell company, was a fair-written copy in ink, and that ink writing reads letter for letter, word for word, line for line, and page for page (it is the custom in the Patent Office to copy applications in such fac-simile) like the application now on file, a photograph of which is furnished to the court. Counsel for the Bell company, in preparing the Dowd case in 1879, took that certified copy, which was procured for his office use, and, with the George Brown specification beside it, proceeded to compare the two, to learn for himself the progress between November or December, 1875, when the one was completed, and January 20, 1876, when the other was sworn to. For greater convenience, he made momoranda of the differences of the two in pencil on the certified copy itself, by generally making pencil parenthesis marks around the words in the certified copy which were not in, or had no corresponding phrases in, the George Brown draft, and interlining in pencil, on the ink-written certified copy, george Brown words which were not in the certified copy. Subsequently, that certified copy was put in evidence in the Dowd case, without remembering to rub out the pencil marks. It was printed in the Dowd case, -- not under the supervision of counsel, but by some one else, who printed the pencil marks and all, and the printer added some other parenthesis marks, according to his own notions. As the Dowd case was not argued, the attention of counsel was not called to the accident. Several hundred pages of the Dowd printed record were put into the Drawbaugh case and other later cases for convenience, by stipulation, these among them, and were there reprinted, and the accidental error still escaped notice. In February, 1886, however, counsel for the Bell company noticed the error, and at once wrote to the counsel for the Drawbaugh company that that paper was incorrectly printed in the Dowd record, saying, "three were some pencil marks on the copy that went to the printer in the Dowd case, with brackets, etc., and that got reproduced in your case." He asked that a new and correct copy be substituted and printed. This was agreed to in writing, a correct copy was printed by the defendants, and is a part of the record, and a further stipulation was made that the court, for greater accuracy, might refer to the originals.*fn1 The original of this paper is part of the files of the Dowd case, in the Circuit Court in Boston, where it has been since 1879. The clerk of that court is in this court room, with the paper in his possession, and I ask that he hand it to the court, and that the court examine it.
[A discussion ensued, and the court decided that under the stipulation this could be done, and the clerk handed the original to the Chief Justice.]
That paper, now in the hands of the court, shows this state of facts. It is asserted by my opponents as the basis of their hypothesis, -- and it is true, -- that the ink-written part of that Boston exhibit is a fac-simile of all that was in ink in the original application. Now what was in ink in that original application? It appears that the ink-written part of that Boston exhibit is in the exact words of the patent as issued, and that its ink-written part is exactly the same as the paper to-day in the files of the Patent Office. Its ink part is a fac-simile of that paper, -- the same words, the same words in each line, the same lines on each page. Particularly the words which are in the patent, in the application on file at the Patent Office, and in the Boston exhibit, but are not in the George Brown draft, including the passage about the liquid transmitter, are fair-written in ink in the Boston exhibit, and generally (in the original Boston exhibit) have parenthesis marks around them in pencil. The words of the George Brown draft, which are not in patent, are not in ink in the Boston exhibit, but are interlined in it with pencil. And the Dowd print is a copy of this paper, ink, pencil, and all, with a few typographical errors, but with the words printed consecutively, so that it does not show what is interlined and what is fair-written.
This will be better understood from examination of one passage by way of illustration.
From the Boston exhibit as printed in the Dowd case:
"The duration of the sound may be used (made) to indicate (signify) the dot or dash of the Morse alphabet, and thus a telegraphic despatch may be indicated (can be transmitted) by alternately interrupting and renewing the sound."
Fac-simile from the Boston exhibit.
The words regularly written in the line are all in ink, and are the words of the patent. The words interlined are in pencil, and are the George Brown words. The parenthesis marks are in pencil and inclose words which are not in the George Brown draft. The paper itself absolutely proves, therefore, that the original specification was written in ink just as it now stands in the Patent Office, and as it was copied into the patent March 7, 1876.
The stress of the argument for the Drawbaugh and Overland companies on this point turned on one particular passage. The George Brown draft, made in November, 1875, described various instruments which would produce the patented undulations, but all of them did it by "inductive" action. The patent as issued states that they can also be produced by varying the resistance, which is not an "inductive" action. One passage in the George Brown draft reads:
"There are many ways of producing undulatory currents of electricity, but all of them depend for effect upon the vibrations or motions of bodies capable of inductive action."
Our opponents argue, and rightly, that an inventor who had described the variable resistance liquid transmitter contrivance in his specification would not write in it that "all" of the contrivances depended on "inductive" action.
The patent, on the other hand, reads:
"There are many ways of producing undulatory currents of electricity, dependent for effect upon the vibrations or motions of bodies capable of inductive action."
That statement is true. It is followed by the examples of "inductive" contrivances which are named in the George Brown draft and which are "dependent" on inductive action, and, after them, there follows in the patent the description of the variable resistance liquid contrivance, which does not depend upon inductive action.
Our opponents argue that the change in this passage from "all of them depend," found in the November, 1875, George Brown draft, to "dependent," the words of the patent, marks the instant when Mr. Bell put the liquid transmitter into his specification. We agree with then. When was it?
They say that the application, filed February 14, was in the George Brown language: that between February 15 and 19, Mr. Bell's solicitors stole the liquid transmitter from Gray's caveat and wrote it into Bell's application, but did not observe this telltale statement on another page of the paper. But Bell, they say, re-reading the dishonest specification on February 27, perceived this proof of the dishonest interpolation, and, in pencil, changed "all of which depend" to "dependent." The Dowd print again does not show what is in ink and what is interlined in pencil, but the original Boston exhibit does. Here is a fac-simile from it, the interlineation and the cancellation of "ent" being in pencil:
Their contention is that what is in ink in the Boston exhibit constituted the application before Mr. Bell could have dishonestly touched it, and exactly as it remained on April 10, 1879.*fn1a
They are right in that. So the very paper to which they appeal proves upon their own theory, when the original is looked at, that this telltale phrase which establishes the contemporaneous presence of the liquid transmitter clause was in the application as filed February 14, 1876, and was written before the Gray caveat existed, and was not interlined by Mr. Bell afterwards. The whole story of forgery by the solicitors and interpolation by Mr. Bell is disproved the moment the paper they rely on is looked at.Their infamous charge of fraud is not only false, but it is based on the errors of a printed copy after they had been warned, and had agreed, that that copy was a misprint and contained those very errors in printing.
The case at large. -- Eleven years ago Mr. Bell asserted that he was the first inventor of the electric speaking telephone and claimed for his investion and for his patent the same breadth and scope we insist upon. The Patent Office and many Circuit Courts have examined those claims in the most exhaustive and protracted litigation to which any patent ever gave rise. All his claims have invariably been sustained. Every tribunal in the Patent Office, and twelve judges in six circuits have entered judgment in his favor. The record before this court consists of twenty-two printed volumes, containing all the testimony in all the cases ever tried under this patent which have reached a final hearing. Some of these cases -- as the Spencer and Dowd cases -- have not been appealed, but their whole record has been put by our opponents, with our consent, into other cases which have been appealed. In the same way, substantially all the evidence that the Patent Office passed upon in the interferences between Mr. Bell and various claimants of his inventions is in these records. All these courts and the Patent Office, and every tribunal anywhere in Christendom before whom the question has come whether Mr. Bell was the first inventor of the speaking telephone, both in this country and abroad, has always decided that he was.
What the Electric Speaking Telephone is. -- Here is a string telephone, a contrivance at least two hundred years old. It consists of two tin tubes, A and B, generally two or three inches long, each with bladders, C and E, stretched over one end. A string, D, has one end passed through the centre of each diaphragm, and tied with a knot inside. The instruments are drawn apart until the string is stretched tight. A person speaks into one tube, as A, and the listener who places the other tube, B, to his ear, hears what is said.The sound vibrations produced by the voice in A cause its diaphragm to copy their vibratory motions. As this diaphragm C in its vibrations tugs at or relaxes the pull of the connecting string D, it pulls and relaxes alternately the diaphragm E, and thus compels it to copy the motions of the diaphragm C. The diaphragm E, thus vibrating to and fro, throws the air inside of the tube B into the same vibrations, and those vibratory motions in the air strike upon the drum of the listener's ear. As the sensation of sound is due to vibrations in the air, and as the difference between one sensation and another is due to the difference in vibrations, it follows, and is a well-known fact, that the utterance of one word produces one particular set of vibrations, which, falling on the ear of the listener, produce the sensation of that word, and the utterance of another word produces a different set of air vibrations which, acting on the listener's ear, excite in him the sensation of that different word. In the case of the string telephone the vibrations excited in the air by the word "yes" in A cause similar vibrations to take place in the diaphragm C. These are imparted correctly by the string D to the diaphragm E, and thence to the air inside of the tube B. The consequence is that the air vibrations in B which impinge on the listener's ear are not only caused by the voice of the speaker, but they are the same in "kind" or character as the vibrations made in A by the speaker's vocal organs. The listener at B, therefore, acted on by vibrations exactly like those in A, is conscious of the sensation of the same word that he would be conscious of if he listened at A.
Mechanically, this contrivance consists of two diaphragms made to vibrate at stations distant from each other by causing the movements of the one to compel the other to copy the motions of the first. That when the second diaphragm was compelled to copy the movements of the first in all respects, the word uttered against one would be heard to proceed from the other, was thus a fact long known and used. No one in our time can claim any originality for discovering that.
What makes the second diaphragm copy the vibrations of the first is the mechanical connection by a string or wire. These instruments are called "mechanical" telephones, or "string" telephones. If, now, electricity can be employed to make the second diaporagm copy the motions of the first, we shall have an "electrio" speaking telephone. The problem left for the inventor of the first "electric" speaking telephone was, to discover how electrom could be employed to establish that connection and make the motions of the second diaphragm copy those of the first. That was his whole problem. The investion consists, therefore, in finding out how electricity can be used to accomplish that purpose. To state as Reis, an alleged anticipator of Bell, did, that if he could by electricity make a distant diaphragm copy the motions of one spoken to he would reproduce the sound, was not a statement of an invention, but a statement of what everybody knew was desired but had not been invented.
To produce at the ear of the listener, whether he be within earshot or at the end of a telephone line, the sensation of a particular word uttered by the speaker, it is not enough that the voice of the speaker at the sending station should produce some vibrations at the receiving station; it must there produce vibrations which shall have the characteristic motions belonging to that particular word as distinguished from those which belong to any other word. "Sound waves," as they are generally called, consist of zones of alternate condensation and rarefaction, produced at one place and propagating themselves onward. These condensations and rarefactions, however, are directly due to extremely short (perhaps 0.00001 of an inch), to-and fro vibratory movements of the air particles, and it is usually more convenient to study those motions directly. Sonorous vibrations may vary, and therefore differ from each other, in several respects. The length of the path over which the vibrating air particle passes in its to-and-fro motion, or, as it is called, the amplitude of the vibration, may vary; the time occupied in passing over its total path from the beginning of one swing back to its starting point, or the number of times it will pass over it in a second, called the rate or period of vibration, may vary. The amplitude of the vibration determines the loudness of the sound; the rate, period or frequency of this vibration determines the pitch of the sound. But the differences between one word and another, or between the sound of a flute and of the human voice, for example, are not differences of loudness nor differences of pitch. The third characteristic of sound, which enables us to distinguish sounds from each other and recognize them, independently of pitch and loudness, is called "quality," a word here used with a specialized, technical meaning. It includes the difference between articulate sounds or different words as part of it. It depends, not upon the length of the path of the vibrating particle, nor on the frequency with which it passes over that path, but upon the manner in which it performs its journey. If it were to start from a definite point at a definite time, and return to the same point at the end of a definite time -- that is, if it were strictly limited as to the amplitude and as to the period of its complete vibration -- it might (and does) pass over that path in many different ways; it may move at first fast, then slow, then perhaps return a little, and then go on at a different speed, and still reach the same goal at the same time. It is the difference in the manner in which it performs its journey, as distinguished from the length of its journey, and from the time occupied, which gives rise to difference in the "quality" of the resulting sound. To produce the sensation of a word by vibrating at a distant station the diaphragm of a telephone, it is necessary, therefore, to make that diaphragm perform vibrations which, in their "character," as it is called, as distinguished from their frequency and their amplitude, correspond to that particular word. If we know how to produce this kind of control over the vibrations at the distant diaphragm, we shall know how to transmit speech; if we do not know how to do it, then we shall not know how to make a speaking telephone.
The invention of Mr. Bell consisted in finding out how to so employ electricity that not only would the voice of the speaker produce some vibrations in the moving part of the distant instrument, but would produce vibrations which in their character or "kind" would copy the movements caused in the air by the utterance of whatever word might be spoken for the moment at the transmitter.
There had long been known an instrument called the Reis telephone, in which words uttered into the transmitter did, by means of electricity, produce motions in the receiver. It was the most advanced instrument in those arts to which the speaking telephone pertains. But the motions thus produced in the receiver of the Reis telephone copied those of the transmitter only as respects the characteristic of period or frequency. The same number of complete swings as were performed by the transmitter at one end were performed by the receiver at the other, but the character of the swings at one end did not control the "character" of the vibrational swings at the other. That characteristic of sound which depends upon the number of vibrations per second, to wit, musical pitch, was therefore reproduced by this instrument; but the characteristic of sound which depends upon the character of vibration, or, as it is technically called, "form" of vibration, to wit, "quality," including those peculiarities which constitute articulation, was not reproduced by this instrument, and could not be reproduced by any instrument operating upon its principle. The distinction between this old musical telephone and the speaking telephone described in the Bell patent, consists, therefore, essentially in the difference of method or principle employed as well as in the difference in the kind of result produced. The method of Reis secured correspondence in frequency of vibration or pitch of sound, but did not secure, and could not secure, anything else. All the experts on both sides agree that this method was absolutely inadequate for speech, and was not only inadequate, but, while that method was being employed, the method adequate for speech could not be used at the same time in the same instrument.
It is obvious that that which particularly made Mr. Bell's instrument to be an electric speaking telephone was some electrical action not exhibited in the operation of the previous instrument which enabled in to control the character, as distinguished from the mere frequency, of the vibrations of the receiver diaphragm. In that electrical action will be found, therefore, his most important and characteristic novelty, and his leading patentable invention.
To signify that characteristic of sonorous vibration which gives rise to "quality" of sound as distinguished from loudness or pitch, the patent employs some technical phraseology of long known meaning.It is the habit of physicists to represent sound vibrations in a sort of graphic shorthand way by drawing curves which are not drawings of the movements actually made by the sounding body, but which are a graphical representation of a mental conception of the character of those movements. In the same way, the height of the thermometer or barometer at successive times, or the price of stocks or gold or cotton, is represented by curves which to the instructed mind tell a long story at a glance. From this habit there has arisen a scientific slang or technical term, -- "form of vibration." It is used because each different "character" of vibration is represented by a particular characteristic of the curve which typifies it, and this particular characteristic, although it is not the only one shown in what would popularly be called the "shape" of the curve, is scientifically recognized as constituting what is called in acoustics its "form." Helmholtz, and all the other standard writers for many years before the Bell patent, employed the phrase form of vibration" to signify that characteristic upon which "quality" or articulation depends; and the Bell patent, adopting this established use of the word, employs it to signify the reproduction of that particular characteristic of vibration.
By a form of speech which is adopted in science and is scientifically correct, the lines which thus graphically express the idea of sonorous vibrations are called curves, although to the eye they look jagged and sharp. The following cut is taken from a tracing made by Professor Blake, of Brown University, by means of a photographic contrivance in which the vibrations of the telephone diaphragm, produced by shouting against it the words printed, were caused to inscribe certain curves characteristic of their motions on a sensitized paper drawn under a spot of light reflected from the quivering diaphragm. They are enlarged about 112 times from the most violent motion the voice could possibly give to the diaphragm in articulation, and the nicer differences are slurred over by the imperfection of the apparatus; but they convey an idea of the nature of the movements which constitute articulation, and which the receiving diaphragm of a telephone must copy.
The Morse telegraph and how it works. -- This cut represents a single-circuit Morse telegraph, -- the simplest typical form of an electric signaling apparatus. B is a battery; K is a key. In its present condition the circuit is "open," as it is called -- that is, K and K', the two parts of the key, are out of contact, and no current can flow from the battery. If the key K is depressed, so that it touches the end of the wire K', then the current flows from the battery B through K, K', through the "line," through the receiving instrument E, down to the earth or "ground" at G', through the earth to the other "ground," G, and up to the battery again. If the key K is raised, the electrical connection is destroyed by what is called "opening" the circuit -- that is, opening the wires apart -- and no current passes. The receiver E consists of an electro-magnet. That is composed of two small cylinders of iron, around which are wound coils of wire which form a part of the electric circuit. When the key K is depressed so as to touch K', and the current flows, it passes through these coils. That makes the cores inside the coils (shown as little cylinders protruding from their upper ends) to be magnetic while the current flows, and that pulls down the flat piece of iron or armature, A, suspended above those cores by a spiral spring S, and holds it down so long as the current flows. When the key K is raised to its position shown in the cut, the current is "broken" and no longer flows, the cores of the electro-magnet cease to be magnetic, they no longer attract the armature A, and the spiral spring draws it up again. Each time, therefore, that the key K makes contact with its anvil K' the armature A is pulled down; when the key K is lifted up, the armature A flies back. As often as the current is made and broken at K, by moving the key down and up, just so often is the armature A moved down and up again.
Musical or "pitch" telephones. -- If now the key K be connected with the centre of a horizontal diaphragm which is vibrated by a sound, it will move up and down, and the parts can be so adjusted that when in moves down it will make contact with K' and let the current flow, and when it moves up they will part contact and interrupt the current; each up and down motion of this diaphragm will thus cause an up and down motion in the armature A of the receiver. As many times as the key K vibrates up and down under the influence of words or other sounds, it interrupts the current at K K', and therefore just so many times will the armature A vibrate up and down. The vibrating armature, A, will give forth a sound the pitch of which will depend upon the number of its vibrations per second, and as that number will agree with the number of interruptions of current caused by the vibrations of the Diaphragm to which K is attached, it follows that that characteristic of the sound acting on the diaphragm and attached key at K which depends solely upon the number of vibrations will be reproduced by the vibratory motions of the armature A. That characteristic consists simply in musical pitch. This circuit-breaking machine, acting on the receiver by an interrupted current, will reproduce the musical pitch of the sound. But it will reproduce no other characteristic; it cannot therefore reproduce speech.
The speaking telephone. -- The instrument Fig. 7 of Mr. Bell's patent has, however, an entirely different mode of operation. The first diagram here given is a fac-simile of Fig. 7 of the patent. The other is a view and section of an actual structure (a transmitter) built in literal conformity to the description of Fig. 7. The transmitter consists of a cone or flaring tube of wood, the large end of which is open so as to be spoken into, while the smaller end is closed with a tightly stretched membrane a (M).*fn1b To the frame is hinged at d a piece of soft iron, c (A), called the armature. The lower end of c (A) is fastened by a stud to the centre of the diaphragm a (M). The arm d (E) is of iron, and carries an electro-magnet b (H), consisting of a small core or cylinder of iron, the end of which is seen projecting towards c (C in the section), wound round with a coil of wire (H in the section). The receiving instrument L is the same as the transmitting instrument, except that for convenience the cone tapers down from the diaphragm to the small end which can enter the ear of the listener. When any sound in made into the cone A, its diaphragm a (M), is caused to vibrate in accordance with the particular sound uttered, just as in the case of a string telephone. The armature c (A), fastened to the centre of the diaphragm, partakes of that motion. When so vibrating it moves to and fro in front of the core of the electro-magnet b (H), which core is kept magnetic in this instrument by means of a current of electricity constantly passing through the whole apparatus from the battery shown by the cross-lines below b.
It is a fact in electricity, discovered by Fraday about 1831, that when an armature is moved in front of such a magnetized electro-magnet, that very motion itself generates ("induces" is the technical word) in the coils of the electro-magnet electrical disturbances which are shown as currents in telegraph wires properly connected, and that these disturbances or currents correspond to the movements of the armature in duration, in direction, and in strength. While the armature moves, these "induced" currents, as they are called, flow; when the armature, instead of moving towards the core moves away from the core, the direction of the so-called electrical flow is reversed. When the armature moves violently, the electric current is violent; and when gently, the flow is gentle. While the armature c (A), is made to vibrate to and fro in front of this electro-magnet by the action of sound vibrations or waves on the diaphragm, electrical disturbances or currents are all the while caused, but these vary from instant to instant as the motion of the armature varies, and, therefore, the variations in the flow correspond to the variations in that movement, in duration, in direction, and in violence. In accordance with the habitual usage of science, they may be, and are properly said to be, copies of the vibrational movements of the armature; that is, every change in one produces a corresponding change in the other.
When this current, varying in accordance with the sound waves that act on the transmitter, reaches the electro-magnet f of the receiver, it acts upon the core of that magnet, in front of which is the armature h. The current from the battery always keeps that core somewhat magnetic, and therefore, always pulls the armature h towards the little cylindrical core projecting from f. If the magnetic pull of f be increased, the armature h, and consequently the diaphragm i attached to it, is drawn nearer to f; if the magnetic pull be relaxed, the elasticity of the diaphragm draws h back again. Every variation in the magnetic strength of the core produces, therefore, a motion in the armature h and attached diaphragm i. It not only produces some motion, but produces a motion which corresponds at each instant with the variations in the magnetic strength of the core. The greater these variations, the more violent the motion; when the magnetic strength increases, the movement of the armature is towards the electromagnet; when it decreases, the movement is in the other direction. The currents produced in the manner already stated, and varying like the sound waves of the sound uttered into the transmitter, reach the receiver electro-magnet f, by virtue of the well-known fact that every electrical change produced at one end of a telegraph wire is instantly felt in every part of it. These currents, corresponding to the sound waves which act on the transmitter, are added to the general and steady current from the battery, so that the total actual current passing through the electro-magnet of the receiver is now stronger, now weaker, in exact accordance with those sound waves. The stronger it is, the more magnetic is the core f; the weaker it is, the less magnetic is that core; and as the movements of the armature h depend upon and correspond to and copy the magnetic changes of the core f, and as these magnetic changes are due to and correspond to and copy the changes in the electrical current, so it follows that the vibratory movements of the armature h and attached diaphragm i of the receiver copy the changes in the electrical current. Every variation in that current produces not only some variation, but a corresponding variation in the vibratory motions of the armature h and diaphragm i.
It is evident upon reflection that all this correspondence between the movements of the diaphragm a and armature c of the transmitter and the currents its movements cause, and this correspondence between those currents and the movements of the armature h and diaphragm i of the receiver L which the currents in turn produce, holds not only for the greater and general disturbances and changes, but for each minute variation or variety of them. The consequence is that in this apparatus the electrical changes are copies of the sonorous movements at the transmitting end.The sonorous movements at the receiving end are copies of these electrical changes. They are therefor copies of the sonorous movements at the transmitting end of which these electrical changes themselves are copies. The final consequence is that the vibratory movements at the receiver are the same as those in the transmitter, not only as respects general frequency, but as regards all their characteristics; and the result is that the sound which actuates the transmitter is reproduced and heard to proceed from the receiver with all its characteristics, and not with the characteristic of its pitch alone. This instrument, therefore, is an instrument which can reproduce not merely the characteristic of pitch, but all the characteristics of sound; or, to state it in a more ordinary, concrete form, it will transmit not only musical notes but "noises and sounds of all kinds."
That is the telephone Fig. 7 of the patent, usually called the magneto telephone.
Comparing this with a string telephone we find that we have, in each, a diaphragm spoken to at one end and a diaphragm listened to at the other, and that, in each, speech is transmitted because the motions of the latter are copies of the motions of the former. But in Mr. Bell's telephone we have got rid of the mere mechanical connection or like formed by the string, and have employed electricity to connect the two. The knowledge how to use electricity for this link constitutes the invention of the electric speaking telephone.
It will be observed that, in the nature of things, the movements of the receiver copy the electrical changes which produce them, and necessarily must copy them, in any receiver where the attraction on the elastic diaphragm varies with the amount of electricity which arrives from the transmitter. Any form of instrument of which that holds true can therefore be substituted for Mr. Bell's precise structure without changing the apparatus as a whole, or its mode of operation, or its result. Those motions at the receiver are like the sound waves uttered into the transmitter, because the electrical changes which move the receiver, and which therefore its motions copy, are themselves copies of the sound waves uttered into the transmitter. What makes this apparatus to be an electrical machine is the employment of electricity in some form; but what makes it to be an electrical speaking machine is the presence, not only of some electrical current, but of an electrical current which copies the sonorous movements of the transmitter in those characteristics on which "quality" or articulation depends. In other words, in the figurative language of science, the electricity is here moulded into the form of the sound waves, and when that feature is present in the operation of the machine, speech will be transmitted; when it is not present, speech will not be transmitted. It is present in this apparatus of Mr. Bell's; his specification contains the first description of any apparatus which was ever intended or adapted to embody this idea and the first suggestion of the idea itself. This correspondence between the electrical current and the sound waves acting at the transmitting end, therefore, is exactly that which makes Bell's instrument a speaking telephone, and which, beyond any peculiarities of structure, distinguishes it in principle and idea from anything ever known before.
The Bell patent points out that this is the distinctive characteristic to which the new result is due; and claim 5 of the patent in terms secures to him this "method" as the means for the desired results.
The following is the description in the patent. After describing the use of one specified undulatory current apparatus, (Fig. 5) for the purpose of harmonic telegraphy, the patent says:
"I desire here to remark that there are many other uses to which these instruments may be put, such as the simultaneous transmission of musical notes, differing in loudness as well as in pitch, and the telegraphic transmission of voices or sounds of any kind."
He then proceeds to state how this latter result can be accomplished.
"One of the ways in which the armature a, Fig. 5," [the telegraph instrument], "may be set in vibration, has been stated above to be by wind. Another mode is shown in Fig. 7, whereby motion can be imputed to the armature by the human voice, or by means of a musical instrument.
"The armature c, Fig. 7, is fastened loosely by one extremity to the uncovered leg d of the electro-magnet b, and its other extremity is attached to the centre of a stretched membrane a. A cone, A, is used to converge sound vibrations upon the membrane. When a sound is uttered in the cone, the membrane a is set in vibration, the armature c is forced to partake of the motion, and thus electrical undulations are created upon the circuit E b e f g. These undulations are similar in form to the air vibrations caused by the sound: that is, they are represented graphically by similar curves. The undulatory current passing through the electro-magnet f, influences its armature h to copy the motion of the armature c. A similar sound to that uttered into A is then heard to proceed from L."
"Claim 5. The method of and apparatus for transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth."
Professor George F. Barker, expert for the Overland company, characterized the invention very happily. He was of those who witnessed Mr. Bell's exhibition at the Centennial. He spoke of the interest excited by "the remarkable result" and their astonishment at hearing "for the first time the transmission of articulate speech electrically." He added: "The mode of operation of the instrument was obvious at once as soon as it was exhibited. It was one of those marvellously simple inventions that causes one to wonder, on seeing it, that it had not been invented long before."
Every speaking telephone used by all the defendants differs from every instrument before the Bell patent, and resembles the instrument of the Bell patent, in that it has these electrical changes which are copies of the sound waves. It transmits speech because it has them. That principle, that "method," and that mode of operation first came into the world in Mr. Bell's instrument and by the description in his patent. His was a speaking telephone because it had it; previous instruments could not be speaking telephones because they did not have it. It is in the defendants' apparatus, and it is because they have it that their instruments talk.
These electrical changes are not something that existed in nature and he found. He first created them. They are not the "result" which Mr. Bell sought to attain; the "result" is the transmission of noises and sounds of all kinds.They are the essential means to that result; and they are novel. The defendants' instruments owe their capacity to transmit speech to the employment of that means which is in common between them and Mr. Bell, and is not in common between them and any one who preceded Mr. Bell. There is no better test of infringement. Howe v. Morton, 1 Fish. Pat. Cas. 586, 588.
To this, Dolbear makes an objection. He says Mr. Bell cannot cover "all" ways of transmitting speech.We reply that our patent does not cover "all" ways, but only our way. "But," rejoins Mr. Dolbear, "I cannot find any other way, and I do not believe any other is possible. Your patent only appears to cover one way; yet, if there is no other way, you cover all ways. O'Reilly v. Morse, 15 How. 62, does not permit that."
In deciding the Dolbear case at the circuit, Mr. Justice Gray answered this argument.He said:
"The evidence in this case clearly shows that Bell discovered that articulate sounds could be transmitted by undulatory vibrations of electricity, and he invented the art or process of transmitting such sounds by means of such vibrations. If that art or process is (as the witnesses called for the defendant say it is) the only way by which speech can be transmitted by electricity, that fact does not lessen the merit of his invention or the protection which the law will give to it."
It is said in defence that the Reis circuit-breaker and several old instruments can now be compelled to so operate as to produce this peculiar character of electrical disturbance, and if they produce it they will talk; and that speech can now be transmitted by talking to a Morse or a House telegraph. But that is not material, if true. If Mr. Bell in 1876 had said: "I can make the Morse telegraph perform a new kind of operation, and produce a new kind of electrical changes, and by so doing I can transmit speech," and had told how, he would have improved the useful arts by inventive genius; he would have made a patentable invention. He could not patent the machine, for the Morse telegraph was old. He could patent his new mode of electrical operation, and that mode of electrical operation could only be described by pointing out the essential difference between the electrical changes that Morse produced and the electrical changes that Bell produced.
This court has given a perfect description of such an invention in the Fat Acids case (Tilghman v. Proctor, 102 U.S. 707). A man, said the court, may have a patent for "the means by him invented and described," and those means need not be a machine. What is the difference between a machine and a process? "A machine," said this court, "is something visible to the eye, the object of perpetual observation. A process is a conception of the mind, known only by its results when being executed or performed. Either may be the means of producing a useful result." Either, therefore, may be a patentable means. When my opponents say "What, patent a conception? Patent a result?Patent an operation which you cannot know except by its results?" the reply is obvious.
An inventor, until he has not only got a conception, but has described how that conception can be so applied and employed as to lead to a result, -- "be known by a result," -- has not made his work a part of the useful arts; has not come within the language of this court; nor within the domain of the patent law. But when he has entered into the useful arts, and thereby got within the domain of the patent law, then one must be very blind and very narrow-minded who can see only the machine visible to the eye, and not the conception which gives life to it. That is the lesson of the Fat Acids case.
Is there any better statement of the great inventions that have improved the useful arts, than "a new idea introduced"?
In the Clay case, the defendants' counsel below said that this whole Bell patent and all the stories its counsel told about it were pure pieces of imagination; that they were asking the court to base its decrees upon nothing but imagination. "Why," said he in substance, "they talk about a 'form' of electrical undulations, and they say that there is a 'form' of electrical disturbances in their instrument, and the same 'form' in ours," and he pulled a piece of crooked wire out of his pocket, and said, "I can see the form of this, and if a man brings me another one I can see the form of that, and if the form of the electrical undulations is the same in those two instruments, why does not the Bell company pull them out and put them on the table, that the court may compare them?"
Apply that criticism to the great invention of Faraday which he described in his imaginative phrase "Lines of Force;" apply it to the decision in the Fat Acids case; it only destroys the critic. What is there so real, so enduring, or so useful as a new idea so stated that it can be employed and lead to a practical, useful result? There is no better statement of a great patentable invention -- a new idea so stated that it can be employed and lead to a practically useful result; a new idea harnessed into the service of man. The harness is indeed requisite to use the idea, but the great thing, and the fruitful thing, is the new idea which is brought in.
The Patent Act, in express terms, says that the inventor is to describe his machine, and "the principle" thereof, "by which it may be distinguished from other inventions." The "principle" is the distinguishing characteristic in the patent law. The Act again formulates this idea still more explicitly. He is to describe, says the Act, "the best made in which he has contemplated applying that principle," implying that there may be modes of application not described. And, with that idea brought forward, the statute provides in terms that the patent is to be for his "invention or discovery," and not for any particular mode of application. See Bell v. Gray, 15 O.G. 778; Am. Bell Tel. Co. v. Spencer, 8 Fed. Rep. 509; Am. Bell Tel. Co. v. Dolbear, 15 Fed. Rep. 448; The Neilson Patent, Webster Pat. Cas. 683, 715; Davis v. Palmer, 2 Brock. 298; Evans v. Eaton, 7 Wheat. 356; McClurg v. Kingsland, 1 How. 202; Parker v. Hulme, 1 Fish. Pat. Cas. 44; Howe v. Underwood, 1 Fish. Pat. Cas. 160, 180; O'Reilly v. Morse, 15 How. 62; LeRoy v. Tatham, 14 How. 156; Winas v. Denmead, 15 How. 330; Corning v. Burden, 15 How. 252; Burr v. Duryee, 1 Wall. 531, 567; Jacobs v. Baker, 7 Wall. 295; Mitchell v. Tilghman, 19 Wall. 287; Tilghman v. Proctor, 102 U.S. 707; Cochrane v. Deener, 94 U.S. 780, 787; James v. Campbell, 104 U.S. 356, 377; McCormick v. Talcott, 20 How. 403; Waterbury Brass Co. v. Miller, 9 Blatchford, 77; Bischoff v. Wethered, 9 Wall. 812; Smith v. Nichols, 21 Wall. 112, 118; Blake v. Robertson, 94 U.S. 728; Clough v. Barker, 106 U.S. 166; Penn. Railroad v. Locomotive Truck Co., 110 U.S. 490; Consolidated Valve Co. v. Crosby Valve Co., 113 U.S. 157; Blake v. San Francisco, 113 U.S. 679; Miller v. Foree, 116 U.S. 22.
This court has often spoken of the value of the mental idea which lies behind a particular machine, the first of its class in the arts. Bischoff v. Wethered, 9 Wall. 812. There is no illustration of that better than Faraday's great discovery that waving a magnet in fron of an electro-magnet or a wire, generates electrical currents. That magnet, moved by his hand, was the first magneto machine that ever was. He discovered that fact; but that fact was only a small part of what he discovered. He discovered the relation between the motions and the currents, and he expressed that relation by a figure of speech -- by the phrase "Lines of Force." If he had died on the day after he had so announced that discovery; the world would have been as much indebted to him as it is now.For though he had not then worked out all of its results, he had given the rule for doing it. Every man who makes a dynamo machine to-day, in calculating its form, its proportions, and its parts, to fit it for the particular use he wants, not only avails himself of the fact that Faraday discovered, but of the rule that Faraday laid down for all future constructors. He did the work of the originator as distinguished from the work of the improver.
So it is with this specification of Mr. Bell. It certainly described one speaking telephone. But its greatest merit was that it also laid down the rule for all future speaking telephones. It said, -- get into the operation of your machine this which never was in any machine before, and get it in in accordance with a particular rule which it stated. Every man who has endeavored to improve the speaking telephone since that time, has endeavored not only to avail himself of the fact that Mr. Bell found, but has endeavored to conform more and more perfectly to the rule which Mr. Bell laid down.
One of my opponents said that it seemed to him that this whole telephone system was like a pyramid balanced on its apex; that this vast system all over the world to-day was based on this one little imperfect machine in the Bell patent. "Great oaks from little acorns grow," answers the nursery rhyme. That patent had the germ of life in it; and that is why this great structure grew out of it.
[Counsel then explained a number of details about the various forms of telephones, and the varieties in the curren which could be produced without departing from the essential characteristics already described.]
The Microphone. -- It is obvious that any variations in the form of the transmitter which still enable it, under the influence of the spoken word, to produce a current which in its variations of strength corresponds to those vibrations, may be patentable themselves as improvements, but would still give an apparatus which as a whole employs Mr. Bell's method. The microphone transmitter is such a variation of form. The strength of an electric current can be varied by varying the electric energy poured into the circuit, or by varying the obstruction or electrical resistance which that energy has to overcome, just as the flow of gas in a pipe can be varied by varying the pressure at the gas works, or by turning more or less the cock which obstructs and regulates the flow. In the case of electricity the relation is simple, and was ascertained and expressed by Ohm (whence it is called Ohm's law) in the form:
Strength of current = Electro-motive force. / Resistance of the circuit.
The strength of the current increases, therefore, in direct ratio to either an increase in the numerator or a diminution in the denominator of that fractional expression.
The "microphone" is an apparatus which so varies the electrical resistance. This cut is a diagram of a section of the device exhibited for this purpose by Emil Berliner in his caveat of April 14 and application of June 4, 1877. The line D represents a diaphragm, shown edgewise, supported by a framework at its edges. C is a pointed "electrode" or wire-end held in contact with the central part of the diaphragm. The current from the battery B goes by the wire to the diaphragm D, thence to the electrode C through the point of contact, thence through the receiver R (a Bell receiver, essentially like L of Fig. 7, but in the improved form of Bell's second patent). When the diaphragm D is vibrated by sound waves it moves towards the electrode C, or in the opposite direction. A movement towards C increases the pressure at the point of contact, and a movement in the opposite direction diminishes it.
In an uncut wire the electric current (the phrase by which the phenomenon of the propagation of electricity is expressed) passes from molecule to molecule with ease. If the wire be cut, and the two ends placed in contact, it will still pass, but less freely than before, because the union of the molecules of the two severed ends is less perfect than in the uncut wire.If the two ends (or "electrodes") are firmly pressed together, the union is more perfect, and the current experiences less resistance and is less enfeebled that if they touch lightly. This was a fact well known before the Bell patent, though such variations in pressure had never been directly utilized. In our microphone, therefore, the vibrations of the diaphragm will produce variations of pressure at the contact, and consequent variations of electrical resistance, and, consequently, corresponding variations of current.*fn1c This microphone may therefore be substituted for the transmitter A of Bell's Fig. 7, and the vibrations of its diaphragm, like those of the diaphragm of A, will produce electrical undulations similar in form to the actuating air vibrations. The same effect will be produced on the receiver as in Fig. 7, and the word will be transmitted by the method of the patent.
The chief mechanical essentials of the microphone are, (1) that there shall be no substantial break of contact, such as would be caused by the diaphragm vibrating entirely away form the electrode; (2) that variations of pressure shall be developed to as great an extent as possible; (3) that the variations of electrical resistance shall directly and uniformly correspond to the variations of pressure. Berliner's first papers show the electrode C made of Germand silver or other metal, and held rigidly, while the diaphragm was much strained, so that its excursions would be very small. Edison, who invented the microphone independently, showed in his application of July 20, 1877, a form indicated by this diagram.
The electrode C is mounted on the end of an adjustable spring E, strained by the screw F to press towoards the diaphragm. Afterwards he discovered that it was better to give a notable weight to a spring-carried electrode, C, because, while the spring gave an automatic freedom of adjustment, the inertia of the weight furnished a mechanical resistance which developed a large variation of contact pressure. He also in his application of July 20, 1877, and in a previous newspaper publication, pointed out that carbon was the best material for one or both of the variable pressure electrodes. The reasons are that with carbon the range of variation of pressure without sudden break is greater, and the variations of electrical conductivity correspond more closely and evenly to the variations of pressure than when the usual metals alone are employed.
Early in 1878 Professor Hughes, in England, independently invented the carbon microphone in a very simple but excellent form, and gave it its name, "microphone." Finally, in the summer and fall of 1878, Mr. Francis Black, formerly an officer in charge of the electrical determinations of longitude for the United States coast survey, and now a director of the Bell company, invented the highly organized Blake transmitter.
In it D is the diaphragm, K is a teat of platinum with a face about the size and shape of the head of a small pin, C is a bit of gas carbon, artificially hardened and polished, mounted in a piece of brass, W, which is carried on the end of a watchspring S. That spring is itself carried on a long lever L, hinged by a spring hinge at G, and capable of a very delicate adjustment by the screw N. The instrument is spoken to through the mouthpiece P. The current comes from battery B through the spring S to W, C, K, through the delicate spring A, and through the primary of the induction coil I C the secondary of which goes to the distant receiver R. The working contact is between the platinum teat K and the carbon C. The brass W usually weighs about 75 grains, and gives inertia to the freely suspended electrode C. The sheet-iron diaphragm is not screwed to its seat, but has its edges cushioned by folds of soft indiarubber (letter bands slipped over the edge), and is held in its seat by a short and narrow metal clip E' and a long steel fingerspring E, -- an arrangement which leaves it free to vibrate truly.
All these inventors did, in fact, make their microphones after the Bell patent, and for the express purpose of producing Bell's electrical undulations similar in form to the sound waves. They do produce such undulations, and for that reason their use has always been decided to infringe Mr. Bell's fifth claim.
Mr. Bell, moreover, in the patent itself, stated explicitly that the described variations of current could be produced by varying the electrical resistance instead of employing the magneto transmitter particularly shown, and he indicated a type of instrument (the liquid transmitter) which could be used to vary the resistance.*fn1d It is, however, the microphonic form of variable resistance instrument which is now generally commercially used. The Bell patent covers the use of a telephone apparatus which employs a microphone for its transmitting member, because the novel variations of current which constitute the essence of the Bell invention are employed as the essential means of transmitting speech by the the microphonic form, as well as by the magneto form; and if Mr. Bell had described nothing but the magneto form, his claim would have that breadth. That it does have that breadth, however, is put beyond discussion, for the patent itself states that for its purposes the variable resistance mode is the equivalent of the magneto mode.
The following is the usual commercial form of the Bell magneto instrument invariably used as a receiver, and to some substantial extent also used as a transmitter:
The diaphragm is H, placed in front of the small soft iron core C which is screwed into the permanent steel magnet F and around which a coil of fine wire D (usually 75 yards) is wound.
The origin of the Electric Speaking Telephone. -- There are more than half a million of these telephones in daily use. They are so simple that anybody can make them, and anybody can use them. Where did they come from?Trace back the history of each one of them. Go to the man who made it, and ask him where he learned how an electric telephone must work in order to speak. Go to the man who put the last improvement into it, and ask him where he found a speaking telephone to improve, and where he learned the rule to improve it by. All these lines of search end in one man. Whatever anybody did or did not do secretly in his workshop before Mr. Bell's time, it is nevertheless a fact in history that every speaking telephone at work in the world traces its origin right up to Mr. Bell. No man ever used, and no man offered for use, any instrument for the purpose of transmitting intelligence by word of mouth for any practical or useful end, before Mr. Bell. There is no such pretence. Yet it is an invention which once known could not be kept secret, and when offered, every one wanted it.
There is no better way to find the origin of so striking an improvement in the useful arts, than to ascertain where it was that everybody learned it. Wnen Mr. Bell exhibited his instrument at the Contennial, all the learned men and all the practical men, said, "This is a new and unheard-of thing." They did not say he had got a new way of doing an old thing; they said that the transmission of speech at all by electricity was a novelty. They went further than that. They said, "We know Reis and his publications; we know that the community got no speaking telephone from his work. Now that Mr. Bell has told us the true way, we see why his predecessors failed." This was the verdict of Professor Henry and his fellow judges at the Centennial, of the British Association, the American Academy, the Society of Telegraph Engineers, the French Academy of Sciences, of an assemblage in New York of all the men most prominent in commercial telegraphy and in science. No man denied it until the great commercial success of Mr. Bell's invention aroused infringers to assert in 1881 that publications in which no man up to that time had ever found a speaking telephone, could now be sworn to by experts as containing one.
The Reis Telephone. -- Philip Reis, in Germany, attempted about 1855 to make an electric speaking telephone, and in 1861 first exhibited it and described it in print. From 1861 to 1874, he brought it extensively to the notice of scientific men and the public by exhibitions before scientific societies in Germany, and before the British Association in England. It was exhibited to the American Association in 1869 and 1870. In 1863 he advertised his instruments for sale, and, until the present time, they have been on sale by the principal dealers in philosophical apparatus. He manufactured them himself, and others were made from his models by Koenig of Paris, the most famous maker of acoustic apparatus in the world. He lived until November, 1874, but he never deviated from the form he adopted in 1863. He stated in his advertisements that that form satisfied all his expectations, and that with it unskilled persons could repeat all of his experiments. From 1861 until these suits began, the structure and operation of the apparatus were described by Reis, by Koenig and the other makers in their catalogues, by the principal standard writers on electricity and acoustics, and in the scientific and other periodicals. The instruments themselves were found in the cabinets of the Smithonian and other institutions. His work, therefore, whatever it was, was perfectly well known. The best instrument makers applied their skill to the construction of his machine in accordance with his directions, and eminent scientific men personally experimented with it and published their results. Fifty such publications between 1861 and 1877 are in the record. If the thing was not known as a speaking telephone, it was not because it was not known, but because it was not a speaking telephone.
We assert that it was simply a circuit-breaking contrivance such as we have already described, reproducing the musical pitch of sounds, but not reproducing "quality" or articulation.
The actual standing of the instrument in the hands of the community is conclusive. Reis's own publications and conduct express that standing. In the prospectus furnished with the completed instrument of 1863, and from 1863 until his death in 1874, he advertised it as a contrivance which would reproduce the pitch of sounds made by the voice or any musical instrument, but did not pretend or suggest that the listener could ever recognize words. It was never offered, nor bought, nor attempted to be used by any purchaser as a speaking telephone, but only as a philosophical toy for the reproduction of pitch. This is not controverted. When Bell exhibited his apparatus scientific men hailed it as the first speaking telephone, and contrasted it with the Reis, saying that Reis tried to make a speaking telephone, but only produced a musical telephone or pitch transmitter. Neither Reis's well-known actual work nor the many publications about it ever did in fact give the art of transmitting speech to the community. Reis did not pretend that they would. There can be no higher proof of their insufficiency in fact and in law.
The history as read in the publications themselves by the unscientific reader is equally conclusive. In 1861 Reis made his first public exhibition and lecture. Of this there are two accounts. One, published in the local papers at the time, said, "Up to the present the reproduction of the tones is indeed weak and words cannot be reproduced. We leave here the question as to whether this hereafter will be successfully accomplished."
Some months later Reis wrote out his lecture and published it. He said that he had hoped to transmit speech, but had been disappointed, adding: "Hitherto it has not been possible to reproduce the tones of human speech with a distinctness sufficient for every one. The consonants are for the most part reproduced pretty distinctly, but the vowels are as yet not in an equal degree." That is the strongest statement Reis ever made. Subsequent experience led him in all his later papers to claim for it the transmission of pitch alone.
A writer, during the next year (1862), professing to speak of trials by others heard of at second hand, and not trials by himself, said that "the experimenters could even reproduce words, although indeed only such as had been often heard by them." This is the only intimation anywhere in literature, of the transmission of a single word. It is not legal evidence of any such fact. Seymour v. McCormick, 19 How. 107. Experimenters with telephones know what tricks imagination plays, and it appears specifically that upon the occasion referred to the circumstances were such that the transmission of words was impossible, for the listeners are shown by the publication itself to have been at such a distance from the instrument that only the loud, inarticulate sounds due to circuit-breaking could be audible.
On the other hand, the apparatus was universally called "The music telegraph"; no other writer out of the fifty, including Reis in his later writings, hints at the transmission of words, while all those who speak from personal experiment say that it was impossible to transmit them. Thus Mr. Quilling published in May, 1863, the results of actual experiments by Reis which he had just witnessed, saying: "It was not possible with the present construction of the apparatus to transmit spoken words." Pisco, in his standard treatise on "Acoustic Apparatus" (Vienna, 1865), says, as the result of a long series of experiments with it, that "the only means for the transmission of speech is the old speaking tube." Mr. Ladd, a celebrated instrument maker of London, having experimented with an original Reis instrument, under Reis's special instructions, before the British Association in 1863, reports that it will only transmit "musical notes and sounds." Kuhn, in Handbuch der Angewandten Elektricitatslehre (1865), says that he has experimented with it, but "a reproduction of the words spoken into the telephone with or without variation of pitch was audible at the receiver only in a corresponding noise (entsprechendes Gerausch), while a discriminate perception of single vocal sounds, syllables or words could not be had."
An elaborate series of experiments with it were carried on by Reis and Professor Buff of Giessen, in the laboratory of the latter in 1863-4. In September, 1864, Reis exhibited it in that laboratory to the physical section of the German Society of Natural Sciences. His lecture was not published, but was followed on the same afternoon by a lecture by Professor Buff; this was published at once in Annalen der Chemie und Pharmacie, 1864-5, iii, Supplementband, p. 134. In it Professor Buff says of the Reis:
"The arrangement is such that the skin which vibrates in equal periods with a source of sound acting upon it serves as a means for interrupting the electric current, which, at a distance, circulates around an iron wire, the ends of which are clamped upon a resonating plate. Unfortunately by this otherwise ingenious arrangement, the pitch only of musical tones within several octaves, but not the quality (Wohllaut) of the same could so far be transmitted through wire circuits."
All this agrees with the actual history of the instrument in the world. The strongest pretence in favor of Reis is that since these suits were brought some men have been found to testify in them, from a mere memory twenty years old, that they think they heard words at some private experiments which were never published. The worthlessness of such "memories" is shown by the fact that one of the most respectable of those persons -- a professor at Heidelburg, says he remembers that at the occasion of the Buff lecture just quoted the audience were aroused to a high pitch of enthusiasm by the transmission of speech which the contemporaneous publication of course disproves. But there is not a pretence that the instrument, widely as it was known, was ever in fact a speaking telephone in the hands of the community.
This was summed up by the court in Am. Bell T. Co. v. Spencer, 8 Fed. Rep. 509, as follows: "Reis appears to have been a man of learning and ingenuity. He used a membrane and electrodes for transmitting sounds, and his apparatus was well known to curious inquirers. The regret of all its admirers was that articulate speech could not be sent and received by it. The deficiency was inherent in the principle of the machine. . . . A century of Reis would never have produced a speaking telephone by mere improvement in construction."
The only method and mode of operation disclosed by the Reis publications is simple circuit-breaking, which will transmit pitch, but not quality or articulation.
A scientific examination of the published description shows that the Reis apparatus was not a speaking telephone, because the principle and mode of operation embodied in it are incapable of transmitting speech. Every publication stated that it was simply a circuit-breaker interrupting the current with a frequency corresponding to the pitch of the sound acting upon it. No other kind of operation is anywhere suggested or hinted at. Reis himself stated that such was his idea, such his intention, and such the actual operation of the machine in his hands. In his description of his latest form he said that this was "the principle that guided" him, and that he had carefully "proportioned" the tension of the diaphragm and the weight of the "hopping" piece to that end. Now this proportion is the mechanical element which determines the nature of the operation which will be performed under the influence of any given strength of sound waves. If the membrane is delicate so that it vibrates freely, and the "hopping piece" is light, the latter will be thrown up into the air and thus break the contact and interrupt the current. The contrary qualities will leave the vibrations insufficient to do this and the unbroken but varied current of the microphone will be produced. Indeed, an efficient production of variations as well as the prevention of breaks, requires a certain mass in the loose electrode. Now Reis made his membrane of thin sausage skin and gave to his free electrode a weight which represents the inertia resistance of a mass of 10 grains. The modern microphone employs a sheet iron diaphragm and a mass usually of 75 to 100 grains. Reis, moreover, expressly directed that the applied sounds should be "sufficiently strong." This will be more clearly understood when the Reis instruments are described.
The actual proof afforded by the publications (besides the unanimous express statements to that effect) is positive that such was the operation of the instrument in fact. Some experimenters describe the chattering noise of the "hopping" piece caused by alternately parting from and again striking the other electrode at each vibration.Others mention the continual presence of the "circuit-breaking" spark at the place of contact, -- a sure proof of interruption of current by break of contact. The descriptions of the experiments say that they were made with the receiver on a table, and that several persons heard it at the same time. Now, a circuit-breaker will readily produce a musical note loud enough for this, but the delicate changes of current which transmit speech are absolutely and physically incapable of yielding any sound which would even be audible from a Reis receiver under such circumstances. Those experimenters who thought that they thus occasionally heard a familiar word are necessarily the victims of their imaginations.
Every expert of our opponents who testified about the Reis was forced to admit, in terms, on cross-examination, that such was the only operation described; and also to confess that it is absolutely impossible to transmit speech by that kind of operation. The reasons for this have been already explained. This fact is of itself fatal, for, as Reis's work was done in Germany, his mere work cannot, under our statute, defeat a patent. The Reis defence must rest on the publications, and the moment it is confessed that when following them speech cannot be transmitted, controversy is at an end. And if the Reis apparatus, adapted to readily operate in the way described in the Reis publications, will not, when so operated, transmit speech, it cannot anticipate a patent which describes a mode of operation by which speech can be transmitted, and which is diametrically different from the mode of operation stated by Reis.
Their only ground rests on the assertion that the Reis apparatus can to-day be made to transmit speech if the method of the Bell patent be applied to it. This possibility was never suggested until 1880, when the Bell patent was four years old. If this were true it would only show the perfection and the novelty of Bell's new method or mode of operation, which, when applied, would enable that which never had been a speaking telephone, to at once transmit speech. But it is not true. The Reis transmitter can, by great care and practice, be compelled to perform the Bell operation and thereby produce the Bell current to a feeble extent, but the Reis receiver, which is good enough for the coarse changes of his circuit-breaker, is too unsensitive to yield any intelligible results under the influence of such delicate undulatory currents as the Reis transmitter can be made to produce.This was the state of proof made by Professor Henry Morton, defendants' expert in Spencer's case, and repeated by him as expert for the Molecular and Overland companies in their cases, now before this court.
In Dolbear's case, the next after Spencer's, the defendants produced from Germany an exact fac-simile of an original Reis apparatus, and asserted that it would talk. Challenged to repeat their tests in the presence of witnesses, they did so on two successive days, the defendants themselves, by their experts, doing the talking and listening, but with a shorthand writer stationed at both ends. Upon comparing the results, it was found that out of about 1500 words uttered into the transmitter, the listener thought he heard 26, and out of these 26, 18 had not been spoken.
Whenever later experts undertook to say that they could talk with the Reis instrument, we challenged them to repeat their tests in the presence of witnesses, "as was done in Dolbear's case," and every one of them declined the challenge; while Professor Morton, for the defence, had to admit on the witness stand in the Molecular and Overland cases that after repeated trials, extending over several years, he found himself unable to understand anything with the Reis apparatus as a whole. It is also a fact proved in the case by the defendants' experts on cross-examination that the genuine Reis apparatus at the Smithsonian, when used as a whole, cannot talk. That apparatus was purchased by Professor Henry himself in 1874, shown by him to Mr. Bell in 1875, yet in his Centennial report of 1876 he officially declared Mr. Bell's instrument to be the first speaking telephone ever known, -- styling it "the greatest marvel hitherto achieved by the telegraph;" "an invention yet in its infancy."
When any witnesses have testified that they got speech with a Reis instrument, it has been made substantially apparent in one way or another that they did it by altering the apparatus so as to prevent it from performing the Reis circuit-breaking operation, and compel it to perform the Bell current-varying operation. A slight physical change may suffice for that purpose, but any such change, or attempt at it, falsifies the instrument. The fact is that by the aid of knowledge acquired from the Bell patent, the Reis telephone can be made to perform the operation of that patent to some slight theoretical extent. But even then it is so ill adapted to that operation, for which Reis never intended it, and is so well adapted for the circuit-breaking operation for which Reis did invent it, that when the attempt is made to compel it to perform the Bell operation it does it so imperfectly that no intelligible speech results.
[In the course of this argument the various Reis publications were examined in detail and illustrated by some experiments performed in court.]
Reis made three forms of apparatus which he publicly described. The first two (1861 and 1862) were purely experimental and it is not known that more than one of each was constructed.*fn1e The third, made in 1863, was adopted by him as his final form, put on sale as a pitch transmitter, and continued to be the only form used by him until his death in November, 1874. It is shown in the following view of the whole apparatus (a fac-simile of the cut forming part of the advertisement he published from 1863 until his death). The outline diagram below shows the working parts of the transmitter.
The transmitter A consists of a hollow box about four inches square and deep. The top or cover is pierced with a round hole over which is stretched a membrane diaphragm about 1 1/4 inches in diameter. To this is cemented a strip of flexible platinum foil (H in the diagram). A piece of brass (a, b, in the cut; C, C' in the diagram) shaped like two sides of a right-angled triangle, is provided at the angle and at each extremity with a little leg made of a small pin of platinum, so that it can stand on the three like a tripod. Two of these legs (at a, b, in the cut; E, E' in the diagram) rest on the frame of the instrument, while the third, placed at the angle, rests on the spatula-shaped end of the platinum foil, H, at the centre of the diaphragm. The instrument is so connected with a battery B, that when at rest the current flows to the foil at G, through the foil II, to the platinum leg resting on it at F, through one branch C', of the angle piece to its leg at E, which is connected (usually by standing in a cup of mercury) with a wire leading back to the battery. The receiver (C of the view) is included in this circuit. If the angle piece be lifted from the foil the circuit is interrupted -- "broken" -- and the current stops.
Sound waves from any source that is vigorous enough enter the hollow box through the tube shown at the side. They throw the diaphragm into vibration, the angular "hopping piece" is thrown into the air, like a boy tossed in a blanket, the electrical connection between it and the foil is broken, and the current is interrupted, to again flow when the hopping piece falls back into place. Thus at each vibration the current is once interrupted. This intermittent current, passing to the receiver, compels it to vibrate once for each interruption, that is, the same number of times per second as the diaphragm of the transmitter. The pitch of the resulting sound is therefore the same as the pitch of the sound which acts on the transmitter.
Reis in his lecture of 1861, speaking of his first form (the bored block, p. 41, supra), says "each sound wave causes a breaking and closing of the current" and therefore the receiver "gives a tone whose pitch corresponds to the number of interruptions in a given time." The only description of the next form (Legat article, Journal of the German-Austrian Telegraph Association, vol. 9, p. 125, 1862, on p. 33, supra) says, "at each condensation of the air in the tube the circuit is opened and at each rarefaction the circuit is closed." In his printed advertisement of his perfected instrument of 1863 (the hollow box form shown in the cut on pp. 60, 290, supra), Reis offered it purely as an apparatus for scientific experiment in the reproduction of pitch. He says of it: "I am now able to offer an apparatus which satisfies my expectations and with which every physicist will succeed in repeating these interesting experiments," etc. What that instrument would readily and habitually do in the hands of any user was therefore all that he expected of it or had accomplished with it. Describing the operation he says, "for every full vibration the circuit is once opened and again closed and thereby are produced" in the receiver "just the same number of vibrations."
In a letter sent to Mr. Ladd, July 13, 1863, instructing him how to exhibit to the British Association the telephone Ladd had purchased of Reis a few days before, Reis writes in English (Journal Soc. Tel. Engrs., March, 1883):*fn1f "It was no hard labor, either to imagine that any other membrane beside that of our ear could be brought to make similar oscillations, if spanned*fn2 in a proper manner or to make use of these oscillations for the interruption of a galvanic current. However, these were the principles which guided me in my invention; they were sufficient to induce me to try the reproduction of tones at any distance. It would be long to relate all the fruitless attempts I made, until I found out the proportion of the instrument and the necessary tension of the membrane. The apparatus you bough is now what may be found most simple and works without failing when arranged carefully in the following manner.
"The apparatus consists of two separate parts, one for the singing station A, and the other for the hearing station B."
"If a person sings at the station A, in the tube x, the vibrations of air will pass into the box and move the membrane above, thereby the platinum foot C of the movable angle will be lifted up, and will open the stream [of electricity] at every condensation of air in the box. The stream will be reestablished at every rarefaction.In this manner the steel axis at station B will be magnetic once for every full vibration," etc.
So, according to his own statement, "the principles which guided me in my invention" were "the interruption of the current" by throwing up the hopping piece so that it parted contact. Observers published that they noticed the chattering noise made by these blows and the "circuit-breaking-spark" which resulted.
Reis so constructed his machine as to insure this circuit-breaking operation. We have already pointed out (p. 286, supra) that whether the circuit-breaking operation or the new variable-pressure microphonic operation is performed depends upon the relation between the force of the sounds applied, the delicacy of the diaphragm and consequent freedom and violence of its vibrations produced by those sounds, and the lightness of the hopping-piece. Now Reis employed a diaphragm of thin sausage skin, says that the tension he gave even to this delicate membrane, and the proportions he gave to the parts, were essential, and expressly directs in his published directions for use that the actuating sounds are to be "sufficiently strong." These directions, contained in papers which state the circuit-breaking operation and none other, are statements that the structure is to be such as will insure that operation; and when these directions are followed, that operation invariably results. The modern microphone, on the other hand, restricts the range of vibration of the diaphragm by making it of sheet iron, or wood, or cork, and sometimes by dampening springs and other devices; increases the weight of the free electrode so that, instead of a weight of 18 grains distributed in such manner as to give an inertia resistance of 10 grains, which Reis had, an inertia resistance of 75 to 150 grains is now employed; while the voice is generally applied at four or five inches from the diaphragm.
As the operation depends upon a due "proportion" between the mass and the force acting upon it, some experts for the infringers, departing from the "proportion" "determined" by Reis, to make it break "without failing," have so altered the proportions that it will not break and will thus serve as a microphone. They have thus altered the proportions between the forces and the resistances, in order to introduce new relations of the parts when in action, to thereby set up a new mode of operation, and by it produce a new result. No ingenuity of experts can state the case otherwise.
In Neilson v. Betts, L.R. 5 H.L. 1, 15; S.C. Goodeves's Pat. Cas. 56; Lord Westbury said: "I must say that when we come to examine the scientific evidence I think I never met with a case where I was more pained to observe the manner in which the efforts of the men examined had all been directed, after their minds were fully informed of Betts's invention, to endeavor to strain the description of Dobbs, so as to include in the application made of Dobbs's design and Dobbs's processes, something which should approximate to the invention of Betts."
In McCormick v. Talcott, 20 How. 403, 409, this court spoke of such depositions as "the opinions (the reveries they may often be called) of a class of men styled experts; men as often skilful and effective in producing obscurity and error as in the elucidation of truth."
Such depositions will not overthrow the consensus of the scientific world and the verdict of history.
Consensus of the scientific world that Reis did not anticipate Bell. The moment Mr. Bell's invention became known, it was contrasted with the well-known Reis telephone, and all the learned societies agreed that Mr. Bell had introduced an entirely new mode of operation, and thereby accomplished a new result.
Professor Henry, in 1875, with a Reis instrument actually before him, praised Mr. Bell for his untried undulatory-current idea as the first clue to the transmission of speech, and in his Centennial report declared the transmission of speech at all to be an absolute novelty.
In 1877, Professor Barnard, President of Columbia College, and other scientific men, declared at a public meeting that the name of Mr. Bell would be handed down to posterity as that of "the inventor of the telephone"; and all the experts for the defence admit that, until they were employed by the infringers, they believed Bell to be the first inventor of the transmission of speech. Dolbear himself, in his published book on the telephone, says that Bell's "was the first speaking telephone that was ever constructed."
In 1877, Mr. Preece, the electrician at the head of the English Postal Telegraph, explained the telephone to the British Association. He asserted, and that body agreed with him, that the Reis machine was a mere musical telephone, and the report adds, "the interest in the subject culminated on the arrival of Professor Graham Bell, the inventor of the talking telegraph."
On October 31, 1877, the English Society of Telegraph Engineers, the most eminent electrical society in the world, held a special meeting "to welcome Mr. Bell to England," and to hear from Mr. Bell his account of what its president styled "one of the most interesting discoveries of our age." Mr. Latimer Clark, an eminent electrician, offered the vote of thanks to Mr. Bell, saying, "There has never been a subject brought before us since my connection with this society, and that is from its beginning, so interesting or so important as the one we have heard this evening, or one which will form a greater epoch in the history of electricity."
When the microphone was offered to the English public by Professor Hughes, in 1878, he, in his communication read by Professor Huxley before the Royal Society, and the other gentlemen who described it, declared that Reis merely produced music, but that Bell, by the correspondence of form which he introduced into the current, "reproduced all the delicacies of the human voice."
The French Academy of Sciences publicly expressed the same views, and on their recommendation Mr. Bell received the great Volta prize.
The Government of Reis's own country, Germany, indeed refused Mr. Bell a patent, as their patent law required, because he had himself published his own invention before he filed an application. But through its patent office it has declared, after two years' study, that the Reis was a mere circuit-breaker, and not a speaking microphone. It did this in terms in the patent granted in Germany to Ludtge for a microphone, on an application filed January 12, 1878. It has since sustained that patent on the ground that the speaking microphone (which the Reis was, if it was a speaking telephone at all) had never been described in Germany before that application.
Finally, in the summer of 1886, at its 500th anniversary, the University of Heidelberg gave Mr. Bell a degree for inventing the speaking telephone.*fn1g
The courts treat such recognition as the highest proof that the invention was before unknown. Tilghman v. Proctor, 102 U.S. 707, 717.
Some authorities as to the effect of prior publications are: Seymour v. Osborne, 11 Wall. 516; Cohn v. Corset Co., 93 U.S. 366; Cahill v. Brown, 15 O.G. 697 (Clifford J.); Atlantic Giant Powder Co. v. Parker, 16 O.G. 495 (Blatchford, J.); Betts v. Menzies, 10 H.L. Cas. 154; Neilson v. Betts, L.R. 5 H.L. 15.
Mr. Bell's history. -- His father's profession (vocal physiology) for which he was fitting himself, led him from boyhood to study with peculiar care the nature of articulating sonorous vibrations. The effort to construct for himself Helmholtz's electrical vowel apparatus induced him to devote attention to electricity, and he made some important inventions in a new form of multiple harmonic or musical telegraph. In 1874, he thought out theoretically the speaking telephone in the form of Fig. 7 of his patent, such as has been described. It seemed to him, however, considering the feeble electrical forces due to currents generated solely by the action of the voice on that instrument, and comparing them with the forces needed to operate the most delicate instruments theretofore known, that the electrical operation and consequent results at the receiving end, though necessarily perfect in kind, would be too feeble to be of practical utility. But the idea had taken firm possession of his mind. In March, 1875, he saw Professor Henry at Washington, and explained his views to him. He wrote to his father and mother a few days afterwards, describing that interview, saying (the capitals and italics are in the original):
"I felt so much encouraged by his interest, that I determined to ask his advice about the apparatus I have designed for the transmission of the human voice by telegraph. I explained the idea, and said, 'What would you advise me to do; publish it and let others work it out, or attempt to solve the problem myself?' He said he thought it was the germ of a great invention, and advised me to work at it myself, instead of publishing. I said that I recognized the fact that there were mechanical difficulties in the way that rendered the plan impracticable at the present time. I added that I felt that I had not the electrical knowledge necessary to overcome the difficulties. His laconic answer was, 'GET IT.'
"I cannot tell you how much those two words have encouraged me. I live too much in an atmosphere of discouragement for scientific pursuits. Good . . . is unfortunately one of the cui bono people, and is too much in the babit of looking at the dark side of things. Such a chimerical idea as telegraphing vocal sounds would indeed, to most minds, seem scarcely feasible enough to spend time in working over. I believe, however, that it is feasible, and that I have got the clue to the solution of the problem."
It further appeared that at that very interview Professor Henry showed him a Reis telephone, bought the year before in Paris. He had the clue, and left Professor Henry's room with a confirmed certainty that he was not fighting against a law of nature, and therefore that success was only difficult, and not impossible. Within a year from that time his patent had issued, and presently Henry, who had approved his conception, publicly proclaimed his success. Since in so short a time he went so far, it is impossible to criticise his methods of work or to accuse him of want of diligence.
In performing, on June 2, 1875, an experiment with a new form of multiple musical telegraph which employed two reeds or springs vibrated in front of an electro-magnet, like Fig. 5 and Fig. 6 of his patent, one of the springs was accidentally knocked, and thus set in vibration.*fn1h He found that this slight vibration produced a sound from the spring of another instrument connected in electrical circuit. With another man the trivial accident might have passed unnoticed. But he instantly joined it with his older thoughts. The marriage was fruitful and the speaking telephone was born. It thenceforth needed only nurture. It at once struck him that if he was right in his observation of this accident, then the feeble vibrations of a spring in front of an electro-magnet had developed sufficient electric currents to produce audible sonorous effects at a distance. He repeated the experiment for an hour or two, and sanguinely satisfied that his former fears about the feebleness of the currents were ill founded, he instantly gave orders for the construction of a speaking telephone with a membrane diaphragm, such as he had conceived and described eight months before to his friend Professor C. J. Blake, of Boston, and to others, two of whom have testified to his description. The instruments were ill-made, and broke to pieces at the first trial. He repaired them and tried them again.*fn2a His success was indifferent. It is not certain whether a single word was intelligibly understood. Nevertheless, his study of the subject and his experiment proved absolutely that the most he had to contend with was a question of workmanship or technical mechanical skill and nicety in the construction of precisely such a form of apparatus as he had made; and it has so turned out.
He was in great trouble financially, and in some other ways. He pawned his watch and borrowed of his friends, and for a time was heart-broken for other reasons. He was in no condition to go into elaborate experimenting, but he crystallized his ideas into a letter which he wrote August 14, 1875 (presently to be quoted), and in which he stated his purpose as the transmission of speech, and also the transmission of many telegraphic messages simultaneously over a single wire, described his "method" of electrical undulations similar to sound waves, and all the results that would flow from their employment, and debated with his correspondent whether he should file a caveat or take a patent. More mature reflection determined him to the latter course. He drew the specification and claims, every word of which, as they stand in the patent, are his work, and the patent issued.
I will assume that the pair of instruments he had made never yielded an intelligible word, but still the question of the validity of the patent does not depend upon previous experiments, but upon the sufficiency of the description. If the instruments of the patent will talk, will transmit vocal and other sounds so that the listener can know them apart, know each for what it is, doing all this in the mode pointed out, the patent is good; if they will not, then it is not good. Mr. Bell was so thoroughly convinced that he was right, that he determined to run the risk, and did. If he had died the moment after he wrote the specification (he wrote it all himself), without ever trying the experiment again, and that specification had gone to the world as a publication, the world would have had a speaking telephone. It would have had a rule by which to make all speaking telephones. No one after such a publication could ever have taken a patent as first inventor of the speaking telephone.
[Counsel then examined in detail the Bell telephone and the Reis telephone, and compared them, and performed some experiments in the presence of the court.]
The Bell patent No. 174,465, March 7, 1876.Its meaning and construction. -- The signification of the technical phrases used must be understood. An "intermittent current" cannot, properly speaking, exist, but a current can flow for an instant and then be interrupted and cease for an instant, and a succession of such instants of current and no current is called for convenience an "intermittent" current. There is also no such thing in nature or art as an "undulatory" current, literally so called; but a current may be at this moment of one strength, and the next moment of a different strength; and if those successive strengths at successive instants bear to each other the relation which is expressed by a curve known as an undulatory curve, then for convenience the current is spoken of as an "undulatory" current. That does not mean that the current has waves on it like the waves of the sea; it means that at one instant it has one strength, and at a succeeding instant another strength, and that the relation of its strength at one instant and its strength at another, is expressed by a curve of an "undulatory" character, as indicated by the diagram on p. 301, infra. This phrase is borrowed from the language of acoustics. Physical vibrations which take place in the air, or in any mechanical medium transmitting sound, have many differences, but they all have in common one peculiarity which comes from the nature of the physical medium in which they take place. Every medium which transmits sonorous vibratory physical motions possesses both elasticity and inertia, and the peculiarities which the elasticity and inertness of a medium impress upon vibrations which take place within it consist in a certain gradualness, as distinguished from abruptness, of change. Although many of these changes, when exhibited by curves, sometimes seem extremely abrupt and sharp, yet, from their essential nature they are known as gradual, undulatory, or wave-like; or more specifically, to use a still more technical term, "sinusoidal" -- the mathematical name of the curve which, either simple or in various combinations, expresses the free vibratory movements of elastic and inert bodies, and therefore all sonorous vibrations. An air vibration may be simple, such as is produced by a tuning fork; it may be extremely complex, such as is produced by the human voice or the violin. But whether simple or complex, the nature of the medium in which it takes place makes the mathematical statement of the character of the vibration necessarily capable of representation either by a simple sinusoidal curve, or by a line which though curiously curved, and apparently ragged, is nevertheless made up of certain combinations of simple sinusoidal curves.
All changes, whether in vibrations of the air, or fluctuations in the height of the barometer or thermometer, or of the tides, at successive hours, or in the strength of an electric current at successive instants, are often represented to the eye by such curves, which are used as a graphic shorthand representation of ideas and relations which would otherwise be expressed by pages of words. In Mr. Bell's patent they are so represented. The intermittent current is conventionally represented by a series of blocks, as A B in the upper line of this cut:
This does not mean that there are on the line at any one instant a succession of spurts of electricity -- electricity at some parts of the line and not at others. It means that for a period of time represented by the length of one block, there is, all over the line, a current whose strength is represented by the height of the block; and that after that, for a period of time represented by the blank space, there is no current at all anywhere. That phenomenon is called an intermittent current.
If, now, the current varies, so that at one instant it is of a strength represented by the height of the line E, in the lower diagram C D, and at the next instant by a strength represented by the length of the perpendicular line F, and so on, and the variations of strength, or the curve which represents those variations by joining the tops of those lines, are "undulatory" in their character, then we speak of that current as undulatory, because of that variation in its strength at successive instants. Those are the symbols that are used in the patent.
Any succession of strengths of current can obviously be represented by drawing perpendicular lines of relative lengths, E, F, G, etc., representing the relative strengths at successive instants. Joining the upper ends of those perpendiculars, when they are taken very close, as between K L, gives a curved line whose contour represents, to the trained eye, the succession of lengths or strengths. From this graphic mode of expressing the facts arises the phrase "form" of current variations, or in abbreviation, "form of current," signifying the current whose changes are represented by a curve of a particular form.
An amendment to the application originally filed in the Patent Office was made by the usual correspondence; but it was merely explanatory and surplusage. It is entirely immaterial. That I may be free from criticism on that point, I shall read only those parts of the specification which stand in the patent itself exactly as they stood in the application originally filed; and my case may stand on that.
Mr. Bell, for some years before he took this patent, had been at work on a multiple telegraph which operated by the production of sounds of certain musical pitches, produced by circuit-breaking and by intermittent currents. They were like the circuit-breaking and intermittent currents of Reis, and they produced musical pitch just as the Reis did, although Mr. Bell worked his machine by mechanism, and not by the voice. His present patent, the contents of which are a picture of several years of his work and of the growth of the ideas in his mind during that time, begins by referring to his former circuit-breaking multiple telegraph, and states that he proposes to discard the instruments previously used in it in favor of a new kind. He says that he finds some advantages in the use of a current which is not chopped up into chunks, but varies its strength in accordance with the law of sound waves, -- that is, a current which is not "intermittent," but is "undulatory," -- and he proceeds to state some advantages from the one kind of current rather than the other.
It is true that every sonorous movement of the air is "undulatory"; but it is not every sonorous movement of the air which gives rise to speech. That comes only when the undulations are of the peculiar kind or "form" belonging to the spoken word. Speech is not the necessary result even of aerial undulations, and it would have been untrue to say that speech would be one of the results of an undulatory current. Therefore Mr. Bell, in speaking in general terms of the advantages which flow from the use of a current, undulatory as distinguished from intermittent, in its character, but irrespective of the form of the undulations, named certain advantages and did not include speech among them, because the statement would have been untrue if he had included it. His multiple harmonic musical telegraph, Fig. 5 of this very patent, is worked by currents which are "undulatory," but which are not of the "form" requisite for speech, and which therefore do not yield speech. This same statement which I am making is found in substance in the letter written by Mr. Bell to Mr. Hubbard, August 14, 1875, six months before he filed his application. He says that the advantage of the undulatory current is that by its employment, whatever sonorous effects can be produced in the air can be produced by electricity. Musical sounds can be transmitted; many musical sounds at the same time can be transmitted; and by giving the undulations the proper form, speech, and indeed the utterances of several speakers at the same time, can be transmitted. He wrote in that letter (the italics are in the original):
"I can see clearly that the magneto electric current will not only permit of the actual copying of spoken utterances, but of the simultaneous transmission of any number of musical notes (hence messages) without confusion. . . .
"When we can create a pulsatory action of the current, which is the exact equivalent of the aerial impulses, we shall certainly obtain exactly similar results. Any number of sounds can travel through the air without confusion, and any number should pass along the same wire.
"It should even be possible for a number of spoken messages to traverse the same circuit simultaneously, for an attentive ear can distinguish one voice from another, although a number are speaking together."
If two tuning-forks of different pitches are sounding separately, we are affected by the sensation of sound, but what we perceive is not one sound, the mean of the two pitches; we hear each sound separately. The vibrations made by one fork, and the vibrations made by the other, different as they are, travel through the same air. In a mechanical sense, they coalesce and combine into one complex vibration, yet the ear unconsciously analyzes them out again as separate sounds. This which can be done in the air, Mr. Bell says, can be done by his undulatory current in electricity; and that is true. But he can do more than just that. As the voice in uttering a word produces a peculiar "form" of undulation, which gives rise to the sensation of that word as one sound, -- no matter though it be in itself capable of scientific analysis into a principal and subordinate set of vibrations, expressed technically by the phrases "fundamental" tone and "overtones," combined and blended together, -- so an undulatory current whose undulations are due to the voice, and are copies of its aerial impulses, can convey the complex undulations of a particular spoken word and yield the same result at the distant end. The conception which possessed Mr. Bell at that time was of electrical variations of current which were to be just like the sound waves, and which therefore could serve all of the same purposes. They were to transmit many messages by many pitches; spoken utterances; many spoken utterances, simultaneously; according to their combinations and forms. He was possessed with the idea of moulding or forming the current so that it should be like sound vibrations generally, and also in a given case like any particular sound vibrations that he wished to reproduce by it. That is the substance of his patent. That is the cardinal key and idea of his whole patent. It was an idea wholly novel in science and the arts.
He illustrates his plan first by describing what takes place when the old "intermittent" current is used. Then he refers to what takes place when any simple undulatory current is used, and says that he cannot describe it better than by showing its likeness to sonorous vibrations in the air. Then he points out what happens when two independently created sets of simple electrical undulations are thrown upon the line wire at the same time, and points out that their effect in the total electrical current, and in the resulting sounds, is just like the effect produced by tuning-forks sounding simultaneously. The patent expresses this as follows:
"The combined effect of A and B, when induced simultaneously on the same circuit, is expressed by the curve A B, Fig. 4, which is the algebraical sum of the sinusoidal curves A and B. This curve A B also indicates the actual motion of the air when the two musical notes considered are sounded simultaneously. Thus, when electrical undulations of different rates are simultaneously induced in the same circuit, an effect is produced exactly analogous to that occasioned in the air by the vibration of the inducing bodies. Hence, the coexistence upon a telegraphic circuit of electrical vibrations of different pitch is manifested, not by the obliteration of the vibratory character of the current, but by peculiarities in the shapes of the electrical undulations, or, in other words, by peculiarities in the shapes of the curves which represent those undulations."
These are his leading ideas. Now he proceeds to apply them.He says in the patent:
"In illustration of the method of creating electrical undulations, I shall show and describe one form of apparatus for producing the effect."
He then describes his harmonic telegraph, Fig. 5, consisting of the instruments here shown. The diagram is from the patent and shows the connection of the two in circuit. The perspective view is from one of the actual harmonic instruments he was using when he made the discovery of June 2, 1875.
When the armature c, which is a steel spring, vibrates, it produces in the air a simple undulation of a definite rate, and by the generation of magneto electric currents, as explained on pp. 265-9, supra, it produces on the wire a simple electrical undulation of the same rate; that, passing through the wire e to the receiving instrument, and operating on its electromagnet, there causes its attuned reed h (the two instruments are just alike) to perform the same simple vibratory movement, and the same simple sound is heard. The patent describes how several sets of these can be connected with the same wire (as in Fig. 6 of the patent, p. 5, supra), and several notes produced at the same time from several different attuned reeds of several receivers, just as in the case of two tuning-forks in the air. It then shows that if you break up each set of notes into longs and shorts, you can telegraph the Morse alphabet by each set, and thus send two or more Morse messages at the same time over the single wire. The patent concludes the description just stated by saying:
"The duration of the sound may be used to indicate the dot or dash of the Morse alphabet, and thus a telegraphic despatch may be indicated by alternately interrupting and renewing the sound.
"Hence, by these instruments two or more telegraphic signals or messages may be sent simultaneously over the same circuit without interfering with one another."
The patent has now described the multiple telegraph, and it makes no further reference to that in the rest of the specification. It next advances one step further.It states that these electrical undulations, generically like sound waves, and available for pure musical tones when they are of the simplest form, can be used for other special results, and for special sounds, when they copy special sound waves:
"I desire here to remark that there are many other uses to which these instruments may be put, such as the simultaneous transmission of musical notes, differing in loudness, as well as in pitch, and the telegraphic transmission of noises or sounds of any kind."
He then proceeds to describe Fig. 7 (cut on p. 309, infra), a different instrument from Fig. 5, and intended for this latter and different purpose. Some of the experts for the defence have said that they find first in this patent a multiple telegraph, Fig. 5, which is true. Then they say that because Fig. 5 is a multiple telegraph, they have a right to assume that Fig. 7 is also. But the language of the patent itself is explicit. Having described the multiple telegraph, Fig. 5, it passes from that subject entirely, and then, going to Fig. 7, it says that that is intended for "other" uses, to wit, not merely the transmission and reproduction of pitch; not merely the reproduction of differences of loudness, as well as of pitch; that is, not merely the reproduction of musical tones, differing both in loudness and pitch, but "the telegraphic transmission of noises and sounds of any kind." This language is expressly used to distinguish the transmission of the characteristic called pitch, and the transmission of the characteristic called loudness, from the third thing which goes beyond all that, -- the transmission of "noises or sounds of any kind;" which means their transmission in such a way that they can be distinguished from each other by that which distinguishes one kind of sound from another kind, and which, moreover, is something in addition to mere pitch or mere loudness. That is, he expressly contrasts the transmission of noises and sounds of all kinds, with the transmission of musical notes, and mentions it as something going beyond the transmission of musical notes.
This is again made clear by his description of the apparatus, for that shows new features introduced into Fig. 7 to fit it for new functions, leading to a new kind of result. First he describes the tuned-reed instrument, Fig. 5, to be vibrated mechanically; that necessarily causes its own pitch to be reproduced. That is the transmission of pitch simply. Then he says that that instrument, used differently, will also transmit loudness. In the particular case where you control the violence of the vibration of the transmitter reed, you will control the loudness of the sound at the further end. The patent states this as follows:
"When the armature c Fig. 5, is set in vibration, the armature h responds not only in pitch, but in loudness. . . .
"When c vibrates forcibly, the amplitude of the vibration of h is considerably increased, and the resulting sound becomes louder. So, if A and B, Fig. 6, are sounded simultaneously (A loudly and B softly), the instruments A and A repeat loudly the signals of A, and B B repeat softly those of B."
He has thus described how to produce a sound of the desired pitch. Next he has described how to control loudness. Finally we come to the third purpose stated, to wit, the transmission of "noises and sounds of any kind." Fig. 5 cannot do that, or at least not normally or effectively. The vibrating parts are tuned reeds, or tuning-forks, and the very essence of such an instrument is that it can be relied upon always to vibrate in its own way, and will not vibrate in any other. It therefore cannot copy "any" kind of vibrations, which must be done in order to produce "any" kind of sound. To accomplish that, the strong will of the instrument must be overcome, and it must be made subservient to the will of the operator, or rather to whatever may be at the moment the movement of the air particles set in vibration by his voice or by any other kind of sound to be transmitted. To accomplish this, Mr. Bell says that instead of having a spring armature (c) which can vibrate only in one way, he will cut the spring (he describes it as a clock spring which is a thin and light piece of metal), and put a hinge in its place and attach the whole to the diaphragm of a lover's telephone, which we know can vibrate in any way, in response to any kind of sound. He will then have got the mechanical conditions essential for the reproduction of "any kind" of sound. The patent then explains that when the transmitter of an apparatus of this sort is thrown into vibration by the sound waves -- sound waves produced by the utterances of the human voice are the particular kind mentioned -- it will produce electrical undulations on the line; and the electrical changes produced will not only be "undulatory," but they will be of the peculiar kind of undulations belonging to the sound uttered. Or, to state it in the then known language of acoustics, they will be "similar in form" to the air vibrations caused by the sound. These electrical undulations go over the line, and when they reach the receiver they, by reason of their peculiarity of form, influence the armature of the receiver to copy the motion of the transmitter in the manner stated on pp. 267-270, supra; and the result, he says, is that a similar sound to that uttered into the transmitter is then heard to proceed from the receiver. The paragraph is:
"The armature c, Fig. 7, is fastened loosely by one extremity to the uncovered leg d of the electro-magnet b, and its other extremity is attached to the centre of the stretched membrane u. A cone A is used to converge sound vibrations upon the membrane. When a sound is uttered into the cone, the membrane a is set in vibration, the armature c is forced to partake of the motion, and thus electrical undulations are created upon the circuit E b e f g. These undulations are similar in form to the air vibrations caused by the sound; that is, they are represented graphically by similar curves. The undulatory current passing through the electro-magnet f influences its armature h to copy the motion of the armature c. A similar sound to that uttered into A is then heard to proceed from L."
This apparatus produces this result by the employment of electrical changes which are undulatory in their character; but it produces it, not simply because they are undulatory in their character, but because they are of the precise "form" of undulation which belongs to the sounds uttered into the transmitter. That "similarity of form" is essential to the result, and as it is the most striking novelty, he thus summed up the whole invention in his claim:
"5. The method of and apparatus for transmitting vocal or other sounds telegraphically as herein described, by causing electrical undulations similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth."
"We cannot find that in any publication before Mr. Bell's time," say even all the defendants' experts. "So marvellously simple that the only wonder is that it was not known before," says Professor Barker. "I cannot transmit speech without that," says Professor Dolbear and his experts. That is the novelty. It is not only a novelty which distinguishes Mr. Bell's apparatus from what preceded him, but it is the novelty which makes it to be a speaking telephone. It is the very gist and soul of this invention.
The defendants' expert Professor George Barker, who witnessed Bell's exhibition at the Centennial, testified on cross-examination:
"I was greatly astonished and delighted to hear for the first time the transmission of articulate speech electrically. . . .
"I cannot speak of the others present. Perhaps very naturally their interest in the remarkable result that they had just witnessed led them to question Mr. Bell in regard to the theory of the telephone. As for myself, the mode of operation of the instrument was obvious at once as soon as it was exhibited; it was one of those marvellously simple inventions that causes one to wonder, on seeing it for the first time, that it had not been invented long before."
And yet the defendants want this court to believe that the result was old, instruments for producing it were well known, and that the operation stated is so purely imaginative that it is not statable and ought not to be accepted or believed.
The experts undertake to say that they would like to have the court believe that this patent is only for a telegraph, because the claim itself says "transmit vocal sounds telegraphically" which ex vi termini, they say, means by a Morse telegraph. Even their verbal criticism is absurd. The record contains many cases of the use of the phrases "telegraphic transmission of sounds" -- and "vocal sounds," as applied to the speaking telephone by men of authority as writers. It appears from Mr. Bell's own letters before the patent, that "the transmission of vocal sounds" was the phrase which he generally used to express the transmission of speech. Sir William Thomson's formal report on Bell's speaking telephone at the Centennial, and Professor Henry's official report, both spoke of it as a form of "telegraph." They say that the transmission of speech by it was "the greatest marvel achieved by the electric telegraph." President Barnard, of Columbia College, one of the Centennial judges, wrote of it as "your plan of telegraphing vocal sounds." The old string instrument does nothing but transmit speech, and yet it is called the "lover's telegraph." The patent is in terms for the transmission of "noises or sounds of any kind," and the particular kind which is mentioned in illustration are the utterances of the human voice. The operation described will transmit noises or sounds of any kind, including speech (not speech exclusively) because, by natural laws, the apparatus, if sufficient for "and kind" of sound -- the language of the patent -- will transmit all; and a statement that it transmits "speech" would be less comprehensive and less true. Every court has so decided.
Yet some of the experts have labored to make the court believe that under that language he meant to include not "other" used than the multiple telegraph, nor utterances of the human voice as everybody understands them, but a contrivance for multiple telegraphy alone, excluding those utterances of the human voice which distinguish articulate speaking man from the gibbering brute. But even the Gray caveat, which is set up as a model, uses the same language -- "transmitting vocal sounds." It adds the clause, "It is obvious by this means that oral conversation can be transmitted." It is obvious, and no man could become the inventor of the art of transmitting speech, or ever even an improver in that art, by reprinting Mr. Bell's specification and adding this "obvious" conclusion in terms.
One of the defendants' experts (Dr. Channing), having first said that he could not find better language than the fifth claim of the Bell patent to express the operation by which the telephone transmits speech, afterwards criticised it, but finally had to say again, after eight years' study of the telephone, "No better form of expression occurs to me at this moment as a general statement."
The fifth claim is the only one sued on, but the third and fourth help to show its meaning and scope. Claim 3 is for producing the undulations by the magneto mode; claim 4 is for producing them by the variable-resistance mode. But claim 5 is not a claim for producing them by any particular mode. It is, as the Molecular brief well says, "for transmitting speech by means of them" when they are of the particular form specified. Claims 3 and 4 are for producing them in the machine, as means to be there used; but claim 5 is for transmitting speech by this means. They are the means, the novel means, and the effective means.
To this claim our opponents object that it specifies a mere conception -- a law of nature -- a mere idea.But that idea was the idea which gave birth to the speaking telephone. There were no speaking telephones before, because the world did not have that idea. Every speaking telephone since then has been the embodiment of that idea.
Watt's invention of the steam engine, or rather Watt's improvement in the steam engine, consisted simply in telling the public that instead of squirting cold water into the cylinder to condense the steam, they should let the steam escape into a separate box and squirt the water into that."Because," said he, "squirting cold water into the steam cylinder cools it down, and when you next let the steam in you use a great deal of steam in simply heating the cylinder up again. So, have one hot chamber for a working chamber, and keep that hot, and let the steam escape into a cold chamber when you want to condense it, and keep that chamber cold." His patent had no drawings, and so far as this invention was concerned gave only the rudest description of an apparatus, which was found so imperfect in practice that it was of very little use.But, with the idea once stated, a good engineer could make a working machine. The infringers answered to his patent, "This is perfectly obvious; you have only stated an idea -- a mere law of nature." But the judges said, in substance, "This man has created the steam engine that everybody wants, and the statement that he has made was all that was needed to enable people to make this engine. He has not only made his own very wretched form of engine," -- indeed, he never made a working engine before he took his patent, -- "but he has given the rule for future steam engines. If such an improvement cannot be encouraged by the protection of the Patent Law, then there is no Patent Law." And so every form of engine which embodied that idea was held to infringe.
Fifty years ago appeared another great invention -- the Neilson hot blast. To smelt a ton of ore in a blast furnace requires about two tons of air to be blown in. It requires more fuel to heat that air than to heat the ore; and blowing in that vast amount of cold air cools the furnace and leads to very great difficulties. Neilson said, "Why don't you blow the air in hot?" That was the invention -- that was the whole of it.Of course he had got to do a little more; he had got to tell them how to heat the air. "Why," said he, "build a fire around the pipe between the blowing engine and the furnace. Indeed, enlarge the pipe over that fire into a large receptacle, in proportion to the amount of air you want to get through; then the air will stay there longer and get hotter." That was the whole patent. No man who knew that the vapor from a still is condensed by pouring cold water on the pipe, or had seen the surface condenser of Watt's engine, would pretend that Neilson's contrivance as a mere machine for changing the temperature of the enclosed gas had invention enough to sustain a patent. Blowing a hot blast into a smelting furnace was his real invention. "A law of nature," everybody said. All the old women in England heat their teapots, so as not to cool the water when they pour it in to steep the tea. "As for your machine," said the iron makers, "a large receptacle to pass the air through is practically worthless. We shall build a fire around the pipe itself without any receptacle, letting the pipe take a good many turns backward and forward in the fireplace like the worm of an old still," "But," the court said, "you avail yourself of that idea which Neilson first introduced into the arts. His form was operative enough to sustain his patent, and you adopt yours not because it does not heat the blast, but because it heats it hotter." Their form was a great deal better than his. That is always the case with great originators. The next man who comes along and uses the brains of the first as a stepping stone will go far beyond him. The first Watt steam engine, the first Neilson hot blast contrivance, the first Morse telegraph, the first Howe sewing-machine, the first Bessemer plant, were not worth having in a commercial sense; indeed, all the users of the first Bessemer plant threw it away, because they could not make it work successfully. But the great inventor opened the door. All that the others had to do was to enter the new house and make it more comfortable.
Infringement. -- It has been apparent that if the Bell patent be limited to the particular form of Fig. 7, and to the use of its method only when practised with a magneto transmitter, no defendant infringes the first patent for all use microphone transmitters. But if it has the scope we have asserted for it, the defendants cannot successfully deny infringement.
To this Dolbear's form of apparatus is no exception. He uses a microphone transmitter and a "condenser" receiver. He and his experts agree that his transmitter produces the undulations of the patent, and that it cannot transmit speech unless it does. They say in terms that so far as the transmitter goes their apparatus is Bell's Fig. 7. But they insist that the difference in the receiver, and the changes of arrangement incident to that difference, relieve them.
Electricity has two long-known properties. When it flows around a piece of iron it makes that piece attract a plate in proportion to the amount flowing at each instant. When it flown into a piece of iron, it makes that piece attract a plate in proportion to the amount which has flowed into the plate and is in it at each instant.Bell used the first property to attract his plate; Dolbear used the second. But the novelty which makes the plate of the Bell receiver and the Dolbear receiver talk is not merely that the electricity produces an attraction proportioned to its amount, but that the amount of electricity sent from the transmitter to act on whatever receiver be placed at the distant end, varies in accordance with the rule laid down by Mr. Bell as constituting his method. The Dolbear talks because it follows this rule.
Indeed, if a Bell receiver be connected with the Dolbear line, the same electrical undulations sent from the Dolbear microphone transmitter will make the Bell receiver talk by one of its properties, and the Dolbear receiver talk by the other of its properties. Both employ the electrical undulations of the patent.In one their special and novel characteristics manifest themselves to the ear by one well-known property, and in the other by another well-known property. Dolbear's defence reduces itself to the same kind of attempt to narrow the patent which the other defendants make.
Breaks and Dead-Points. -- Some of the defendants' experts, particularly Messrs. Young and Brackett, of Princeton, and Professor Sylvanus P. Thompson, of Bristo, England, (whose deposition was taken in this case,) used language which was intended to induce the court to believe that the microphone transmitter used by the defendants produced interruptions in the current; they insisted that the fifth claim of the Bell patent was technically limited to currents that were strictly continuous; and upon this they founded the argument that by reason of the alleged breaks in the current these microphones were taken outside of the Bell patent, and that the use of these instruments did not infringe.
To this there are several answers. One is, that the experiments and reasoning detailed in the testimony of Professor Cross and Professor Wright, expetts for the Bell Company, prove that speech cannot be satisfactorily, or even intelligibly, transmitted by any instrument actuated by the voice, which causes breaks in a battery circuit (and a microphone is always necessarily placed in a battery circuit) as often as even once in each complete vibration. Another answer is, that if the averments of defendants' experts as to breaks were true, their current would still be substantially Mr. Bell's current, because it would possess, as the essential characteristic which enables it to transmit speech, that characteristic which Mr. Bell introduced into the current and described and claimed in his patent.
There is nothing in the phraseology of the Bell patent which limits it to strictly continuous currents. The word "continuous" does not occur in the patent. Continuous currents were old in telegraphy, and the patent itself points out and discards one kind of continuous current which it calls a "pulsatory" current, and which will not transmit speech. The patent makes the test of the described current to be its conformity to sonorous vibrations in the air. Any phenomena which are common to that current and to sonorous vibrations, and to which the term "break" may be applied, would therefore, if found in the defendants' current, be an element of similarity, and not of dissimilarity. Furthermore any breaks which occur, if they are not sufficient to destroy speech, -- as when they occur between words, or at the dividing line between one vibration and another, -- if they can occur then without the destruction of speech, -- would be negligible, and would not prevent the current in which they occurred from being substantially Mr. Bell's current. An outline of a pure curve may be substantially made, both in fact and in the patent law, by a dotted line, or by a broken line made as by the cross-stitch of worsted-work, or like the contour of a ploygon of a great number of sides. Winans v. Denmead, 15 How. 330, 344; Ives v. Hamilton, 92 U.S. 430, 432.
Again, the distinction between the current of Mr. Bell and the current of Reis is, that Bell impressed upon his current those peculiarities of vibration which constitute "form" and give rist to "quality." It is absolutely certain that the current, which is the sole connecting link between the transmitter and the receiver, cannot convey these peculiarities from the transmitter to the receiver unless they are impressed upon it; they must be delivered to the messenger which is to carry them, or they will not be carried. Mr. Bell's invention and patent cover the use of a current upon which those peculiarities have been impressed, no matter what type of instrument be used as the transmitter to impress them. If it were true, as we believe it is not, that the microphone impresses them upon the current with substantial efficiency by means of a series of modified and modulated breaks (entirely different from the single, simple break of Reis) the current would be none the less substantially Bell's current, and infringe his patent.
Finally, it is clear that the statements of the defendants' experts on this subject turn chiefly on the ambiguous use of language. Thus, Professor Thompson, on cross-examination, admits that he means by "breaks" partial breaks over only part of the surfaces in contact; breaks which, while they weaken the current, do not entirely stop it; and Professors Young and Brackett adopt that statement as probably a correct explanation of the operation of the microphone. Dr. Cresson, in the Clay case, points out that in the to-and-fro motion of the air particle, as in every vibratory motion, there must be an instant of rest or no motion, or, as it is more properly called, a "dead point," when the particle, having moved in one direction, turns to move back in the other. The diaphragm of the telephone, he says, has these same instants of rest, and thus produces instants of no current in the line which connects with the receiver in the simple magneto apparatus, or in the microphone which uses an induction coil. But he was forced to confess that this phenomenon, by whatever name it may be called, occurs at each extremity of each complete vibration of the air particle, and at every subordinate change or reversal of the motion, and that its occurrence, therefore, in the current is an instance of resemblance and not of divergence.
The second Bell patent, No. 186,787, of January 30, 1877. -- The patent of March 7, 1876, was for a "method" and for the first instrument which embodied it. This second patent is for improvements of detail in the structure of that magneto instrument.
The first patent showed the multiple telegraph instruments Figs. 5 and 6. This apparatus required for each set (1) two instruments specially adapted for a particular musical pitch; (2) that each pair, though at distant stations, should be always kept tuned in unison. (3) According to it, Fig. 7, an entirely different instrument, was required for speech. The second patent showed Fig. 7 so improved that (1) it would transmit speech better than before; (2) the same instrument that served for speech would also, and without tuning, serve for the multiple telegraph and for all pitches; (3) the battery of the first patent could be dispensed with.
The leading features introduced by this second patent are:
(1) The use of an iron diaphragm in both transmitter and receiver, instead of a diaphragm of membrane with attached armature;
(2) The employment in the telephone of a different form of magnet combined with the other parts, giving much better results;
(3) New shapes of air spaces and casings which ward off extraneous and disturbing vibrations, and preserve the desired sound waves from distortion or weakening;
(4) The employment of a permanent magnet instead of a battery to magnetize the cores of the electro-magnets.
This is Fig. 3 of the patent, which is in fact a drawing of the model filed.The diaphragm A is of sheet-iron, circular, screwed at its edges B and C to the framework. Behind it is the core F H, which the patent says is preferably magnetized.Around one end of it is the short coil G. In front of the diaphragm is the thin air space which communicates with the operator's mouth or ear by the central opening E. When the box is large and heavy this opening is usually prolonged into a tube. By making the core F H permanently magnetic, the battery of the first patent may be dispensed with. The effect is enhanced by winding all the wire of the coil around one end of the core. The patent describes the core as made either of a single bar, with one coil, as in the model, or in a horse-shoe form, with a coil around the end of each limb as in Fig. 5. The patent also prefers to make the core of a steel bar, permanently magnetized, with a small piece of soft iron (pole piece) screwed into the end, the coil to be wound around that pole piece as in Fig. 5.
All these improvements have gone into universal use.
Drawbaugh asserts that he made all those inventions many years before Bell. Holcombe and some others make the same assertion as to some of them. Their stories are impostures.
The metal diaphragm. Claim 3. -- Professor Pickering and Elisha Gray did upon two or three occasions, before 1876, experimentally, combine a sheet of iron and a magnet. It is clear that Gray used his sheet of iron -- it was the bottom of a tin wash-basin or a tin cup -- as an accoustic reflector or resonator to increase the well-known sound produced by the magnet itself (the so-called "Page effect"), and never thought of claiming for his contrivance any magnetic co-operation until long after he saw Bell telephones in commercial use.But apart from that, their work ranks as abandoned experiments. They did not use the contrivance in a speaking telephone, and did not make any attempt in that direction. On the contrary, when speaking telephones became known, both of them announced the opinion (Gray in his caveat) that for the feeble forces available in the telephone a delicate membrane like goldbeater's skin must be employed. Their contrivances were purely experimental in the strictest sense, used two or three times for entertainment merely, with circuit-breaking tuningfork transmitters, to produce lopud musical sounds by a powerful intermittent current, never supposed by either maker to be of any use, mentally and physically thrown away, abandoned and lost, or some of the parts only preserved by accident. Professor Pickering placed a magnet, temporarily, in front of a tin box, and has never made any claim to th invention. Mr. Gray claimed it only when the Western Union Company acquired his pretensions in the fall of 1877 and set him up as a "prior inventor." He did not describe that receiver in his caveat and had forgotten it until he joined the infringers in the fall of 1877. It remained for Mr. Bell to descover and to utilize the marvellous sensitiveness of a disk of sheet iron supported at its edges.
The special magnet in combination. Claim 5. -- This magnet per se was old. But it had never been used to produce sound; it was not used or considered useful for any such operation as it performs in the telephone; and the reasons which make it a desirable form to combine with a diaphragm in a telephone are far outside of the ordinary knowledge of an electrical workman. Claim 5 is not for this magnet. It is for making a new form of speaking telephone which has this magnet as one member.
The peculiar form of the air spaces (claims 6, 7) is confessedly new.
Bell's English Patent. -- The inventions of this second patent were patented in England. The English patent was applied for December 9, 1876. The United States patent was applied for January 15, 1877, and was actually issued January 30, 1877. The English application was not completed by the filing of the full specification, the question of granting the patent was not passed upon by the law officers, and the patent itself was neither written, signed nor sealed, until after May 1, 1877. The invention therefore was not "patented" in England at the time the United States patent was granted. Mr. Bell could not, in January 1877, state the English patent, which did not exist until some months afterwards.
It is immaterial whether the English patent was then granted or not, because it has not yet expired, and upon either view the American patent is still in force.
See Ex parte Bates, L.R. 4 Ch. 577; Goodeve's Pat. Cas. 594; Re Cutler's Patent, 1 Webster's Pat. Cas. 420; Re Henry's Patent, L.R. 8 Ch. 167; Brown v. Guild, 23 Wall. 181; Harrison v. Anderston Co., L.R. 1 App. Cas. 574; Goodeve, 223; Newall v. Elliot, 4 C.B.N.S. 269; Goodeve, 328; Penn v. Bibby, L.R. 1 Eq. 548; L.R. 2 Ch. 127; Goodeve, 369; Stoner v. Todd, L.R. 4 Ch. D. 58; Goodeve, 446; Nordenfeldt v. Gardner, Supplement to the Official Journal of the (English) Patent Office for March 25, 1884; Holste v. Robertson, L.R. 4 Ch. D. 9; O'Reilly v. Morse, 15 How. 62; Smith v. Dental Vulcanite Co., 93 U.S. 486, 498; The Corn Planter Patent, 23 Wall. 211; American Rock Boring Co. v. Sheldon, 17 Blatchford, 303; Gole & Stock Telegraph Co. v. Commercial Telegram Co., 23 Fed. Rep. 340; Canan v. Pound Manufacturing Co., 23 Fed. Rep. 185.
Early instruments constructed by Mr. Bell. -- His first instrument was made June 2-5, 1875; another substantially like it was made shortly afterwards. Of these the essential working parts remain, to wit: most of the framework, including the straining rings which carried the membrane diaphragms, the electro-magnets with their heel-pieces, and the armatures. These prove the dimensions of all the parts. Reproductions were made in exact accordance with these, and these reproductions transmitted sentences in the presence of the counsel and expert for the Drawbaugh Company. The following are drawings of these reproductions, one-sixth of the size of the originals.
Mr. Bell exhibited at the Centennial Exhibition at Philadephia, in June, 1876, the following speaking telephones.
Two membrane diaphragm magneto instruments, capable of use either as transmitters or receivers, but in fact used as transmitters at the public test on June 25, 1876. The base is of black walnut, the frames are of brass castings, and the cones are of japanned tin. They differ only in that one has a single bar electro-magnet and the other a horse-shoe or double pole electro-magnet. The section is drawn to scale, one-fourth size. The membranes are three inches in diameter.
He also exhibited a liquid transmitter. The sections given below are drawn to scale, and are one-fourth of the actual size. The frame carrying the diaphragm is the same casting used for the magneto transmitters.
The receiver used at the Centennial consisted of an iron tube E, on the top of which was laid a sheet-iron disc D, serving as the diaphragm. Inside the tube was a soft-iron core C, around which was the coil H. A battery of several cells was placed in circuit. The core C was in contact with the iron bottom of the iron tube E, which thus itself became magnetic.
On June 25, 1876, speech was transmitted in the presence of the Judges and an assemblage of 75 people, by means of the membrane magneto transmitter and the iron box receiver. During the following week the Judges transmitted speech with them, in their own pavilion, without assistance, transmitting newspaper sentences.
The magneto telephone went into commercial use in April, 1877, and the following are some of the early forms.
About 25,000 of these magneto instruments went into use (chiefly of the upright box and the rubber handle forms) before the microphones appeared. Carbon microphones of the Edison and Blake (p. 279, supra) forms with induction coils went into commercial use in the summer and fall of 1878.
Circuit connections for microphone with induction coil as commercially used.
T is the microphone transmitter in a short local circuit which includes the battery B (usually one cell) and the primary of the induction coil I C. Of the secondary coil one end goes to the LINE wire which connects with the coil B of the receiver. The return circuit is usually completed through the ground (G G,) though on very long circuits, as from Boston to Philadelphia, a return wire is employed because it gives much better results.
In order to talk both ways alternately the arrangement at each station is duplicated as follows in which T talks to R', and T' talks to R.
The first infringement was that of the Western Union, in 1878, and formed the subject of the Dowd suit. The next was that of the Eaton Company (Spencer case) in the summer of 1880. It was in that suit that it was first alleged that Reis invented the speaking telephone.At that time there were 140,000 speaking telephones in use under license from the Bell Company.
Mr. William W. Ker for the Clay Commercial Telephone.
It is alleged in the bill of complaint that the American Bell Telephone is "a corporation duly established under the laws of the Commonwealth of Massachusetts." This is a descriptive allegation.If a descriptive allegation is not proved as laid, it is a fatal variance. 1 Gr. Ev. 82, § 64. To prove the incorporation, the complainants offered in evidence a special Act of the Legislature of the Commonwealth of Massachusetts. It is entitled "An Act to Incorporate the American Bell Telephone Company." The name of the proposed corporation is not mentioned in the body of the act. When a corporation is erected, a name must be given to it, and by that name alone it must sue and be sued, and do all legal acts. Such name is the very being of its constitution. The name is the very knot of the combination, without which it could not perform its corporate functions. Bl. Com. Book I. ch. 18; Angell and Ames on Corporations (10 ed.), § 1; Dartmouth College v. Woodward, 4 Wheat. 518, 636. The act is entitled, "An Act to Incorporate the American Bell Telephone Company." The title cannot confer the name American Bell Telephone Company upon the corporation. Potter's Dwarris Stat. 102; Sedgwick Construction of Statutes (2d ed.), pp. 39, 40; Mills v. Wilkins, 6 Mod. 62; Hadden v. The Collector, 5 Wall. 107; Coal Company v. Slifer, 53 Penn. St. 71; Union Passenger Railway Company's Appeal, 81 Penn. St. 94. The special act, offered in evidence, enacts that Bell and his associates may associate themselves, and "organize a corporation according to the provisions of chapter 224 of the act of the year 1870, and the acts in amendment thereof and in addition thereto." Chapter 224 of the act 1870 and its amendments are now known as chapter 106 of the Public Statutes of Massachusetts, and so much thereof as relates to this question is as follows:
"Section 4. Any such number of persons as is hereinafter provided, who associate themselves together by such an agreement in writing as is hereinafter described, with the intention of forming a corporation for any purpose hereinafter specified, upon complying with the provisions of section twenty-one, shall be and remain a corporation.
"Section 16. Such agreement shall set forth the fact that the subscribers thereto associate themselves together with the intention of forming a corporation, the corporate name assumed, the purpose for which it is formed, the town or city, which shall be in this Commonwealth, in which it is established or located, the amount of the capital stock, and the par value and number of its shares.
"Section 17. Any corporate name may be assumed which indicates that it is a corporation, and which is not in use by an existing corporation or company; and the name assumed shall be changed only by act of the General Court. If organized for the purposes mentioned in sections 9 or 10, the words 'co-operative' or 'fishing,' respectively, shall form part of the name."
To further prove the act of incorporation, complainants offered in evidence a certificate, under the seal of the Secretary of the Commonwealth of Massachusetts, certifying that W. H. Forbes and ten other persons had associated themselves under the name American Bell Telephone Company, with a capital of seven million three hundred and fifty thousand dollars. The special act does not give the persons named in it power to assume a name. It gives them power to organize a corporation. The assumption of a name was not one of the incidents which attached, even by implication, to the powers, purposes, or objects stated in the act. We are to look at what the Legislature actually did, and not what it intended to do. The act was a grant from a sovereign power, and is to be taken most beneficially for the sovereign, and against the grantee. 2 Black. Com. 347; Potter's Dwarris on Statutes, etc., pp. 146, 215; Dartmouth College v. Woodward, supra; Commonwealth v. Erie & Northeast Railroad Co., 27 Penn. St. 339; S.C. 67 Am. Dec. 471. The special act was a later one. It does not incorporate chapter 224 in its provisions. It refers to chapter 224, by enacting that Bell and his associates might "organize a corporation according to the provisions of chapter 224." The powers conferred by the special act are limited to the precise language used. The language confers no authority upon the Secretary of the Commonwealth to issue such a certificate as has been offered in evidence. Commonwealth v. Railway Co., 52 Penn. St. 52; Bowling Green &c. Railroad Co. v. Warren County Court, 10 Bush, 711; Ellis v. Paige, 1 Pick. 43; Farmers' Loan and Trust Co. v. Carroll, 5 Barb. 613; Angell and Ames on Corporations, §§ 81, 111. The Bell Telephone Company of Philadelphia is one of the complainants mentioned in the bill of complaint. It is described as "a corporation duly established under the laws of the State of Pennsylvania." Although, under the pleadings, the complainants were bound to prove the existence of the corporation, yet there was no act, law, charter, or evidence cffered to prove that such a corporation ever did exist.
Mr. Ker also contended that the evidence showed that the complainants were not entitled to maintain a suit alone against the respondents; that Bell was not the original inventor of the inventions described in the patents; that material parts of the invention had been described in printed publications prior to the granting of letters patent; that the claims in the patent were not warranted by the descriptions and specifications set forth in it, or by the proofs and evidence; and that the apparatus was inherently unfit for telephonic purposes in the transmission of articulate speech.
Mr. Don M. Dickinson for the People's Telephone Company (the Drawbaugh Case) and for the Overland Telephone Company.
Two leading judgments of this court settle the rules applying to the issue of priority of invention between Bell and Drawbaugh. These are Gayler v. Wilder (the Fire Proof Safe Case), 10 How. 477, and Coffin v. Ogden (the Reversible Lock Case), 18 Wall. 120.
The simple question is, did Mr. Bell or Mr. Drawbaugh first conceive and apply the principle of the telephone and "clothe the conception in substantial forms which demonstrated at once its practical efficacy and utility?"
The principle is, that of transmitting articulate speech upon wires by a continuous electric current, with the addition of means to cause incidental undulations of the current corresponding with the incidental tones of the human voice.
When applied in the electric speaking telephone the practical result is, that the same air vibrations set in motion by the human voice, and producing sound by their impact upon the tympanum of the ear, are repeated with comparative exactness upon the tympanum or diaphragm of the transmitting instrument, are then by the process carried to a distance, and there with equal exactness repeated upon the tympanum or diaphragm of the receiver, and thence again repeated upon the tympanum of the listening ear.
The issue of fact here has been heard and decided upon the merits but once in any court below.
There was no hearing of this defence before granting the preliminary injunction in the Circuit Court for the Southern District of New York; and the Circuit Court for the Eastern District of Pennsylvania -- Judges McKennan, Nixon and Butler sitting -- refused a preliminary injunction after full hearing deferring decision until a final decree should be reached on pleadings and proofs in the Southern District of New York. So that the only judgment of any court which needs to be attacked by or which can be said to be adverse to this defence is that of the learned judge of the Circuit Court for the Southern District of New York which is printed in this record.
Our positions may be summarized as follows:
The defendants' testimony-in-chief, excluding Drawbaugh's, is of such positive character, relating to exceptional and unusual facts; is so copious from many and widely disconnected sources, and withal so consistent and harmonious, that, in the language of the learned Judge below, it "is sufficiently formidable to overcome the legal presumption of the validity of the complainants' patent."
The complainants' proofs in reply, do not, under the settled policy of the law of evidence, create a flaw upon the face of the case made, much less destroy it.
Case authorities to the point, that doubtful direct testimony in support of the claims of an alleged inventor may be overthrown by evidence of his inconsistent conduct, fraudulent fabrications or evil tendencies, have no application in weighing direct evidence of the higher order presented here. If it had been shown that he was a rogue and a falsifier, Drawbaugh would not be beyond the pale of the law for the protection of inventors, if the evidence otherwise established his claim to an invention.
But Drawbaugh's story, his character and conduct, and the conditions in which we find him, are all consistent with, and corroborate, the case otherwise made.
In this regard every premise of the opinion below, upon which this decree rests, is at fault. These premises are:
(a) That a man of Drawbaugh's education and environment could not have invented the telephone.
(b) That a man who busies himself with minor "mechanical contrivances" could not have produced a great invention. In other words, a great discovery in physics could not be made by a man unless his mind had always been on great discoveries; an a priori argument that to establish a claim to a great invention, the claimant must show some previous invention approximately as great.
(c) That the issue of an advertising card, to the farmers, millers, mechanics and housewives of a country village, soliciting trade for his shop, is an admission that he was not working upon and had no telephone at a period when seventy unimpeached witnesses, and himself, testify positively that he had the telephone, and that he was so working at that time.
(d) That Drawbaugh fabricated the story of his poverty, when the court records of his judicial district show judgment after judgment against him, on claims for the necessaries of life, medical attendance for his fatally ill children, and for the roof that covered his head; and when the community in which he lived corroborates the record.
(e) That Drawbaugh was a charlatan, because a provincial scribbler was florid in the style of a printed notice of him.
(f) That Drawbaugh and these witnesses, when they say that they talked through the more or less crude instruments made prior to 1875, falsify or are mistaken in their statements on the following grounds:
Some of the original parts have been lost or worn out, two sets of reproductions were made, both in exact correspondence with the original machines, and when tested at different times, one set being older and shaken out of adjustment, did not work perfectly; though the other with accurate and firm adjustments, stood all the tests as practical telephones.
The earliest possible date at which Bell's conception of the magneto instrument can be fixed is June 2, 1875.
Then from an accident in his experiment to the "Spring" instrument he was led to prepare a sketch for Mr. George Brown of Toronto. This sketch as he testifies was of his instrument of July, 1875, which was the result of experiments following and caused by the accident of June 2, 1875. He placed upon the sketch the words in his own hand: "First attempt to transmit the human voice."
We present a history from the first idea conceived by Drawbaugh, of transmitting articulate speech over a telegraph wire in 1859-60, through various experiments by which the conception finally took on mechanical, though rude forms, and became of practical use, down to the finished and nicely adjusted mechanism; all prior to this as the date of Bell's invention.
This history rests for its general truthfulness, and for the accuracy of its details, not upon the testimony of interested witnesses; not upon the testimony of one, two, six or a dozen, but upon the direct and positive testimony of an entire community, and of the frequent and occasional visitors to that community, representing all classes of citizens, in every trade and occupation.
Over two hundred persons testify to knowledge of Drawbaugh's telephones as an accomplished invention prior to the date of Bell's. Over seventy talked through the machine. Over one hundred and thirty saw the machines, and most of these identify instruments.
There is nothing of inherent improbability in the proposition that so many people of various occupations and employments can give direct testimony in this case, as the fact comes in naturally, and is conceded on all sides, that in the country village of Eberly's Mills, well known throughout that part of the country, Drawbaugh's shop was a common resort for many people of the village and of the country side, and it was a place to which visitors were frequently taken as a place of local note, while Drawbaugh himself was considered a remarkable man among the people.
The great mass of evidence for the defence is essentially not of a class frequently criticised in such cases as being dependent upon the memories of illiterate or careless witnesses as to conversations, statements, or even plans and specifications with or submitted by an alleged inventor at some former time; but on the contrary is that kind of testimony which in every branch of the profession is admitted to be even superior to that of a mere learned or scientific person, where it bears upon the practical truth of novel results and effects as facts. There is no room for mistake.
It cannot be conceived that any honest witness could have made a mistake, or that his memory could be beguiled by imagination, "wrought upon by influences to which his ears were subjected," as to his having done so marvellous a thing as conversing through a machine and recognizing the tones of a human voice, at a distance over telegraph wires, at the time in question.
In the condition of the art, and of their knowledge at the time, a greater proportion of such witnesses would be impressed by such a fact as by a miracle.
So strong and vigorous was this class of testimony that the court below was constrained to hold as we have seen that "the case made by these witnesses in sufficiently formidable to overcome the legal presumption of the validity of the complainants' patent."
It is true that in all branches of jurisprudence instances are frequent in the cases, and illustrations common in the books, of the fallibility of direct testimony, from honest mistake.
Such instances and illustrations occur and are drawn, throughout the history of the law of evidence, from one general class of oral testimony.
It is that which depends for credence upon the unaided memory of the witness, in relation to some ordinary thing, not unusual, unnatural or striking, in and of itself. Thus, the testimony of an honest witness to the fact merely, that at a certain time and place, he saw two individuals together might be successfully assailed, while the statement of the same witness that he saw them together, and saw one of them strike the other or shoot the other, would be invulnerable.
So, by the same rule, direct testimony by the average witness as to ordinary conversations or statements at a distance of time, may be as unreliable as his recollection of the contents in detail of a letter, which, intrinsically, or to the witness, was of no particular interest; in both instances becoming less reliable in proportion to the lapse of time. Such evidence, while it may be competent, has little weight.
So, memory of such witness as to statements, and plans and sketches of inventors in ordinary machinery, or extraordinary machinery used for ordinary purposes; and even as to the parts and adjustment of the mechanical parts of such machine.
The history of patent litigation, judgments of courts in such cases, and the complainants' brief below and here, teem with modern instances of the application of proper caution and of absolute decision against this kind of direct evidence.
It is doubtless true that the misty and lineless impressions of men, especially of the unskilled and unlearned in the art, might easily be beguiled by subsequent events, interest or influences, into giving out a seemingly honest but mistaken description of well-defined parts and accurate adjustments. Strong circumstantial should overcome direct evidence in such cases, as in the Howe Sewing Machine Cases, 1 Fish. Pat. Cas. 162.
But the testimony here attacked is as far beyond the range of that doctrine as the target of a Columbiad is beyond the range of a bird gun.
Other and equally well-settled rules apply; if the circumstances narrated were likely to attract the attention of a person "in consequence of their importance, either intrinsic or with relation to himself, doubt is resolved in favor of the memory of the witness."
It is said of the King of Siam that he believed everything the Dutch traveller told him, until he said that in Europe the water in winter became so solid that men and even elephants could walk upon it. This, his majesty said, was impossible, and at once accused his entertainer of lying. (Locke, on the Human Understanding.) There can be little doubt that after the interview, the monarch's memory remained good of the fact that he had been told of this thing, and he would have remained a good witness to that particular part of the conversation for the rest of his lefe. If, in addition, he had been, for the first time, brought to view and test the ice of a frozen river in a country where water sometimes freezes in the season of winter, his testimony, at any subsequent period, that the water was frozen on the particular day of his view of the wonder, would be worth that of a hundred residents of its banks who should testify from mere memory, that the river was or was not frozen on that day.
In this case we have hundreds of witnesses whose circumstances and relations are in perfect harmony with the theory that they could have seen and heard the thing alleged if it had occurred; each individual describing either the knowledge of his own senses of a result, or of the hearing of a result, which, if in fact it occurred, or if in fact he heard of it, was the most startling and unheard-of thing in all his experience. To him it was a sharp and vigorous departure from the course of nature; becoming known of men, this thing equally moved and astonished the civilized world. As put by the learned Judge below, "a result of transxendent scientific interest," and the greatest by far of all the marvels of the electric telegraph.
Imagine a suit for an infringement against Fulton, and the testimony of a witness that he was on board on the trial trip, and then imagine counsel making the charge against him that he was beguiled by his imagination into honestly thinking that he saw the boat propelled against the current by steam or by unseen forces!
In the then state of knowledge, especially in the community of Eberly's Mills, the transmission of the voice by wire, and of the tones of the voice by electrical machinery beyond ordinary hearing distance, was to present such a marvel as to challenge attention in the very nature of things.
It was not merely a wonderful mechanical contrivance like the sewing machine, which accomplished the seemingly improbable combination in mechanics, which could perform rapidly and perfectly a familiar work; but this was an unseen and mysterious cause, whose processes were not discoverable to the vision, whose force seemed rather of the unnatural, and whose results alone impressed the mind and memory.
No detail of mere machinery or adjustment needs to be remembered. If the machine talked, and the witness heard it, there can be no doubt of the accuracy the impression made. If the machine talked, we might well dispense with the fallible memory of some unlearned and unskilled witnesses as to the mechanism employed, because we know that the appliances used in the magneto any variable resistance instruments were the invention here in issue, as none others would or can transmit articulate speech by the electric current upon wires.
This brings us to another oft-repeated criticism of several individual witnesses for the defence.If the shrewdest and most able cross-examination could lead a witness to say that he had seen and talked through a certain instrument of the exhibits in evidence, indentifying it, when it could be argued that at the exact time of the act the particular instrument identified was not perfected or in use, according to the testimony of Drawbaugh, or some other witness, the learned counsel profess themselves satisfied, and urge the court to agree with them, that the testimony is quite demolished. Their theory as to the fallibility of honest, direct testimony, given by the unskilled and unlearned, as to the existence of the machines, here disappears, and in its place we have the proposition that these particular witnesses are wicked falsifiers; and this, of ignorant men and women, "Pennsylvania farmers, gullible now, and gullible then," as counsel are pleased to call them.
While we have the testimony of the learned, as well as of the ignorant, yet, even of the latter, we submit that it is the strongest possible corroboration of their statements, and the strongest possible contradiction of the complainants' position (that these many witnesses either falsified wilfully, in concert, from corrupt collusion, or from the unconscious effect of consultation or "village tavern gossip"), that they do not agree in their memories of the, to them, novel parts of the instrument; or are at fault or are mistaken as to the identity of the instruments, or of the difference between the carbon or variable resistance machines and the magneto machines.
They are agreed in memory of the great, conclusive fact, that this machine did talk.
Running through the testimony from the population at and about Eberly's Mills, and its frequent visitors, we find repeated and constantly appearing support of the main facts testified to, in perfectly natural and consistent collateral matters.
For instance, we find the unlearned and unskilled remembering well the talking machine, when clothed in the familiar garb of a tin mustard box or common glass tumbler, and forgetting other details; we find others remembering the instruments with any peculiarity about them, like the spiral magnet, better than they can recall other parts, as that particularly struck their attention, and naturally would do so; we find the blacksmith remembering the shape and position of the permanent magnet with which he is familiar, and forgetting all about the electro-magnet, of which he knew nothing; we find many remember the common horse-shoe magnet as used, because they knew before what it was. We find a farmer, like Fetters, recalling all the details for applying electricity about the machines, but cease to wonder at his accuracy, when we find that the farmer had at some time before greatly interested himself about practical electrical machinery. We find the more familiar in such matters giving more details; the totally ignorant in such matters giving no details at all. The very diversity of detail, the absence of concurrence in circumstance, in occasion, and in time, presents this mass of testimony as impregnable against the complainants' theory, that it is the product of consultation or of prearrangement.
Neither their sharpest cross-examination, nor their swarm of agents and detectives employed from among well-known members of the community, as well as from without, have been able to bring out any admission or circumstance tending to show that the witnesses have been impressed by an exchange of views among themselves, by undue influence from interested parties, or that they are in conspiracy in framing their evidence.
Is it possible that complainants' counsel have not been able to break the "fabrications" of even one ignorant and gullible Pennsylvania farmer?
It is not possible, if such a conspiracy existed, and an entire population in it, that, in the course of years, no one of the hundreds of conspirators, in every walk of life, has ever been weak or careless, or off his guard, so as to betray the slightest hint of it, even in the conversations with his co-conspirators; yet if he has, the secret agents of the complainants, among the friends and neighbors of the conspirators, have not found it out. The breaking down of two or three, and no more, of the witnesses called upon the question of dates, strongly aids in the demonstration that the mass are unshaken in their testimony. It is rather further evidence that we have called the population to testify, and that in every community there are one, two, or three, covetous of the ephemeral distinction of the witness-stand, of the importance of figuring in a case of so much interest, and willing to gain it by a stretch of conscience.
Care has been taken, however, in summoning witnesses to testify, to call no man whose character or whose word could be successfully impeached by any methods known to the law. And it is remarkable, we submit, that in a case of this magnitude, with every means and resource at their command, the complainants, after years of effort and search in near and in the most remote paths, and in every collateral by-way, now rest the charges of conspiracy and of gullibility against these witnesses, only upon the bare statements of counsel. The lives of all the witnesses are clean, their characters for truth and veracity unassailed, and the evidence of any attempt to influence the memory or the impressions of any man called, cannot be successfully pointed out in this record.
We submit in our brief an analysis of the testimony, and call particular attention to the absolute certainty of the dates as fixed by collateral matters in every instance.
As tending to show that Drawbaugh did not invent and use in his shop the electric speaking telephone, as testified to by the witnesses for the defence, the complainants introduced forty-eight witnesses from Eberly's Mills and from various parts of the United States, who are put upon the stand for the purpose of showing that they never saw the machines in his shop, and never heard them spoken of.
We shall see that of these but ten stand the test of cross-examination and rebuttal, even as to the point to which they testify; while the ten are disposed of on other grounds.Among these witnesses, the first and most important, and one whose means of knowledge and relations with Drawbaugh are claimed to strengthen complainants' theory more than any other witness, is Theophilus Weaver.
He describes himself as a "solicitor of patents, patternmaker, builder, and experimental machinery manufacturer," and as "counsel in patent cases."
He testifies that he had acted in getting up specifications for Drawbaugh in various minor inventions, and, in a word presents himself as the man to whom Drawbaugh would most likely make known his telephone inventions, if they had existed. He then proceeds to testify, in chief, that he never knew that Drawbaugh had invented a telephone until the first half of 1878, and then it was a mere device to be connected with a clock, "to announce the hours vocally."
It transpired in his cross-examination that he had been employed by the complainants to get up testimony in the neighborhood, and to influence sentiment in the community, and had been so employed by an agent of the complainants, who was visiging the vicinity under an assumed name. It also appeared that he was not on good terms with Drawbaugh, for the reason that he, the witness, had grossly betrayed Drawbaugh as a client in a patent litigation, and had also attempted to pirate the invention himself by applying for an "improvement" upon it. He then endeavored to betray the person to whom he betrayed Drawbaugh. We cite the pages of the record to these points.
The cross-examination shows conclusively that this man has little notion of honor, and no regard for his word. It was a common practice with him to act as counsel or solicitor for mechanics, and others seeking patents on inventions, and then appropriate to himself the knowledge thus obtained in a professional capacity, by patenting "improvements" upon them. The man paints his own character clearly, and stamps his own testimony as unworthy of credence; a man of doubtful methods and of an easy conscience, we find him the accredited agent of the complainants, and he stands at the threshold of their testimony.
Complainants also called David A. Hauck in the same line of negative testimony. He is the person with whom Drawbaugh had the suit in which Mr. Weaver was counsel, above referred to. It appears clearly, from his cross-examination, that he was adjudged, both by the Examiner of Interferences, and subsequently upon appeal by the Board of Chief Examiners, to have made grave misstatements. Both these tribunals found not only that he had done so as to the facts in the case, but that his statements upon filing his application for a patent had not been true; that he was not at all the inventor of the faucet in controversy, but had it from his opponent Drawbaugh. He testified that, although frequently in Drawbaugh's shop, he had never seen any talking machine and never heard of one.
Without regard to the personal feeling or the character of the witnesses, especially in view of the fact that they contradict an exceptional number of men and women testifying as strongly to the memory of a positive and wonderful fact, we urge that this case affords an exceptionally striking illustration of the wisdom of those settled legal rules for valuing evidence, which give great weight to positive, and little weight to negative testimony.
This court has said of this rule, in Stitt v. Huidekopers, 17 Wall. 384, 394: "The court charged the jury, that 'it is a rule of presumptions, that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to negative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen; it is not possible to forget a thing that has never existed.' We are of the opinion that the charge was a sound exposition of a recognized rule of evidence of frequent application." See Collection of Cases, 14 U.S. Dig. 642; Gilbert on Evidence, 140; 1 Stark. Ev. § 32.
While no person possessing a memory could well forget having talked through one of these machines at the time in question, yet it may be true, that persons called to testify (as they are) that they never heard of it years before, or did not see it, tell the truth, from lack of opportunity to see or hear it. A very few, honest and disinterested, may be an exception to the rule, and may have actually forgotten the conversation or the view.
The differentiation in the ability of persons to recall facts, or impressions from the eye and ear, of things and conversations not in and of themselves remarkable, is a matter of common observation. In respect of this, may be considered the difference between the man of many affairs and the man of few; between the man of mental occupation and the man of other pursuits; between the man devoted to his own interests and the man interested in the affairs of his neighbors; and, finally, the difference of age and temperament which affect the proposition, that all men having seen or heard of a thing likely to make a greater or less impression, as men may vary, all would remember it.
And, too, the average lay mind has never yet comprehended that "don't remember" may not be resorted to in cases of self-interest; to avoid enmity, or to please a friend; or that it can amount to perjury or any wrong. Upon that answer no prosecution for perjury ever did stand, because of the practical impossibility of proving of the particular witness that his power of memory was equal to that of other men. No physical or psychological research, and no expert, could afford the proof, whether he in fact did remember; and witnesses are more easily influenced not to remember, as has been done according to the evidence in repeated instances, as shown by the record.
The usual question put to these witnesses was substantially as follows: "If Mr. Drawbaugh, for five or six years before speaking telephones were heard of elsewhere, had at his shop a talking machine, by which people at different places could carry on conversation with each other along a wire, and had frequently shown it to people, and had had them carry on conversation over it, so that they knew that it would do what he claimed for it, and had represented that it was going to supersede the telegraph, do you think you would have known of it?" And so the witnesses are made to swear, not only to the premises and conclusion of the syllogism of consel, but also to his syntax and rhetoric.
There is one consideration appearing in complainants' own proofs that is at once conclusive against the value of this testimony. With a few exceptions, the entire number of witnesses are offered to give testimony tending to show:
(1) That the telephone never existed in Drawbaugh's shop prior to the Bell patent; and
(2) That it was not heard of in the community prior to the Bell patent.
With the few exceptions, to which we shall refer, the witnesses testify not only that they did not hear of the machines or know of them from 1867 to 1876, but go further and extend the period to 1878 and 1879 and 1880; so that by fixing the dates, the strength of their testimony is no greater to the point that the machines did not exist up to 1876, than that they did not exist in the later years mentioned. If not seeing or hearing of them establishes that they were not there up to 1876, the not seeing or hearing of them by the same witnesses in the same circumstances and conditions, in 1877, 1878 and 1879, would establish that they were not there in the latter years; but we have from the mouths of the complainants' own witnesses offered to prove that Drawbaugh's later machines could not have been constructed as early as 1876, because he showed the earlier ones, that there can be no question that at the earlier dates of 1876, 1877 and 1878, machines were in the shop in such a condition that they were perfect telephones, though in ruder forms than the later ones.
(Counsel here read at length from the testimony of complainants' witnesses, in illustration.)
As an illustration of the unsafety and utter worthlessness of this negative testimony, that of Nesbit is cited. He was called to prove that Drawbaugh did not mention telephones in 1878. Nesbit was there for the purpose of getting materials for an historical sketch of Milltown. In connection with his testimony the history compiled from the material was introduced, and it was silent as to the telephone, although treating quite fully of Daniel Drawbaugh. Upon the production of a manuscript made by Hull at the very same visit Nesbit made, it was shown conclusively that Drawbaugh did mention the telephones, both carbon and magneto, as his invention ("two kinds of telephones"). This manuscript is shown in the cross-examination of Nesbit, and then, on the demand of counsel, the complainants were obliged to put in another copy of the same history, which contained an appendix, with the substance of Hull's manuscript statement about telephones.
This testimony proves something else besides the unreliability of negative testimony.
Nesbit was an intelligent and honest man, telling of a comparatively recent visit, and had it not been for this manuscript his testimony would have stood to the effect that Drawbaugh did not mention telephones, and that he, Nesbit, did not hear of them there. It appears with perfect clearness that the agents of the complainants over and over again interviewed persons in Eberly whose memories were positive against their theories, and then failed to call them.
In this connection the history of the two Gregorys is interesting. One of the sharpest criticisms made upon the Drawbaugh defence at the first hearing was that those engaged about the shop with Drawbaugh, as workmen, were not called, and that it followed from the defendants' failure to call them, as well as by the testimony of Jacob Carnes, a workman for the complainant, that Drawbaugh's statement and the story of the witnesses for the defence were incredible, because the very workmen about the shop did not know of his telephone.
Before the second hearing in the Overland case, Emanuel Gregory, a member of the Drawbaugh Manufacturing Company in 1870, and his son, who worked in the shop in 1870, were found living in Massachusetts. They both of them testified they had not been in the State of Pennsylvania from the 10th day of December, 1870, until the day when they gave their testimony.They further testified that while at work in the shop with Drawbaugh they had many times talked through the telephone with him and aided in his experiments. It appeared further that they had been visited by the agents of the complainants, and had made their statements to them in regard to this matter before the first hearing of the cause.
Of this class of witnesses, that which seemed to the Circuit Court to be most conclusive against the defence, is that of Mr. James P. Matthews, managing editor of the Baltimore American. He has the place of honor in the opinion; as the court observed, "with a memory unusually retentive and active," and as "a careful, conscientious man."
He testifies that he went to the shop of Drawbaugh especially to see the electric clock in April, 1878, and he made some brief notes of what he learned, and subsequently wrote from them an article for his paper, published November 28, 1878. His testimony is chiefly to the point that he understood from Drawbaugh, at the interview in April, that, while he had experimented somewhat upon telephones, yet he never expected to transmit articulate speech, and that he saw there "no telephone, and nothing that looked like a telephone." This testimony is of the same class as several newspaper articles of 1878, tending to show that Drawbaugh was merely experimenting. The article in question is a tissue of errors in its conception and description of the clock which it purports to describe, and would of itself stamp that portion of the evidence as without value. The witnesses subsequently wrote a letter (Appendix, Add. proofs, p. 776) to complainants' counsel, called out in the argument below, in which he says: "I ought to have said in my affidavit, and in my subsequent examination, that at the time of the interview I had probably never seen a working telephone, and knew little or nothing about its mode of operation. The impression in the newspaper paragraph referred to may have been modified, colored or changed by conversations with other people on the subject after the interview and before the article was written." He further states in his letter, that, "the two wooden hemispheres," which he testified that Drawbaugh showed as parts of the telephone, and had been in his hands, he was mistaken about, and he cannot say whether Drawbaugh touched them of said anything about them. Further: "My recollection of the whole transaction is so vague that I never ought to have ventured to say anything about it, and the portions of my testimony relating to this matter certainly ought not to be considered by the court in making up it decision." He had testified that his impression was that Drawbaugh had entirely thrown aside telephone experiments; but he is contradicted in this by the complainants' own witnesses, Shapley, D. A. Landis, C. A. Landis, Orlando Kanney, A. L. Rupp, Geo. C. Rupp, Henry R. Mosser and Theodore Grisinger.If this were not enough as to the testimony of this witness, held by the court below to be of sufficient importance to figure as a chief factor in the destruction of the defence, we now quote from the complainants' own brief in the court below, bearing in mind Matthews' testimony is material and competent only as showing there was no telephone at Drawbaugh's shop in April, 1878, and that all there ever was of it was futile experiment, as follows (Brief below, p. 20):
"Our belief is that the Tumbler instrument was first made as an electric speaking telephone in 1877-8;" they could say no less, as their theory had been, and their witnesses had sustained it, that the electric telephone was there not only in the winter of 1877-8, but also in October, 1876.
It is evident that the complainants were not seeking the truth so much as witnesses to sustain their theory, and that even for this purpose negative testimony is obtained not as representing the Knowledge of the community upon the subjects testified about, but, after being carefully culled and selected, because it was thought, from the lapse of memory, from susceptibility to influence, or from other cause, the witnesses would be able to say, at least, that they had not seen the telephone, in such language as might be put into their mouths under the manipulation of shrewd examiners. The whole of it should be laid out of consideration.
The testimony of Kieffer and Wilson, persons to whom Drawbaugh had shown other inventions, and to whom he talked about his electrical business, standing by itself, has force; nevertheless, they are negative witnesses, and they cannot stand against the positive testimony of men who saw and talked through the telephone, remember the words, and identify the instruments.
Still, it is conceded that such negative testimony as Kieffer's and Wilson's and Lloyd's, unexplained and unanswered, would have greater value then that of ordinary negative testimony, and the Circuit Judge has given it almost controlling weight, because they were men with whom Drawbaugh had conversations about other inventions and electrical experiments, and because he did not speak of the telephone to them, and to whom it is assumed he would open his heart freely on the subject. As stated in the opinion in this connection, naming these witnesses with Weaver and Hauck (supra): "The proofs show that during the years from 1868 to 1878 he did not attempt to avail himself of opportunities for demonstrating his invention and bringing it to the notice of his friends, who were peculiarly qualified to appreciate it and were favorably circumstanced to assist him."
Without referring to the possible effect of influence upon the memories of these witnesses and complainants' influences upon all, we propose to show right here the radical error of this proposition, and to show by positive testimony that it has no material basis to rest upon.
Mr. Kieffer, Mr. Wilson, and Mr. Lloyd resided at Harrisburg, and were men of character without doubt. David A. Hauck resided at Mechanicsburg, and did not know Drawbaugh until he went to Eberly's Mills in the spring of 1873, for the Hauck Manufacturing Company. He is the witness heretofore discussed as having a litigation with Drawbaugh.
We reply as follows:
1. By the testimony of men of equal or of higher standing than these who figure in the opinion, who were more intimate and more likely to be applied to by Drawbaugh, that he did repeatedly apply to them and explain his invention to them; and,
2. As one reason why he did not speak of the telephone to the witnesses named in the opinion, or apply to them for help, that he was laughed at, derided and denounced as crazy by those men who knew him best, and were of as high character as those to whom he did not apply.
[Counsel here read from the testimony of twenty-seven witnesses on the first point and of many others on the second.]
We suggest that it would be presumable on such proof, aside from other reasons going to rebut this testimony, that the three or four witnesses testifying that Drawbaugh did not speak to them were omitted by him, because of discouragement or diffidence or experience of repeated rebuff, rather than that the positive testimony of himself, and of so many witnesses of character, is wickedly false.
Even Drawbaugh and his witnesses should now and then have the benefit of the old-fashioned, and still not obsolete, presumption, in favor of truth and honesty.
It was said by the learned Circuit Judge, that it was incredible that the statement of the witnesses could be true -- that they could remember the words that they heard through the telephone.
We respectfully submit, that the criticism would be an apt as it is a usual one, if made of ordinary conversations, when the witness, after a long period of time, attempts to give the exact words; but, when a man is relating an exceptional experience, an astonishing result, a mystery connected with spoken words -- it would be more incredible if he did not remember it.
Decrees and judgments cannot be based upon such reasoning, or against such testimony as we present, and they have not been.
To reach a result in this case resort has been had, not to the testimony, but to the somewhat vague and ill-defined theory of the inherent incredibility of the defence, and especially of the story of Daniel Drawbaugh himself.
We defer a discussion of the overwhelming evidence adduced and remaining uncontradicted in support of the priority of Drawbaugh's conception and invention, to consider somewhat the story of Drawbaugh as given in evidence, and Drawbaugh himself.
I now call Attention to Daniel Drawbaugh as a Witness.
At the outset, in considering Drawbaugh as a witness, there can be no question but that his history of himself and of his experiments and labors upon the electric speaking telephone from 1860 to 1879, inclusive, must be either a truthful statement, or one manufactured, in general and in detail, by a wicked mind; a mass of irredeemable perjury from beginning to end; and yet, none of the legitimate methods known to the profession but have been applied in this case, and no resource has failed to bring these methods to bear for the purpose of breaking down that testimony.
Upon the course and paths of his life, and his relations and dealings with all men from his boyhood down to his fifty-eighth year, the complainants have focused a light which has made luminous every detail.
Presumably, if his testimony could have been impeached, either by attacking his character or contradicting his statements by the direct testimony of others, it would have been resorted to. But we find that notwithstanding his difficulties, lawsuits, and controversies with men, by the testimony in behalf of the complainants, as well as of the defendants, that he bore a character, and had a life record, whose honesty and truthfulness could not be assailed. All bear testimony to his steadiness, his industry, his enthusiasm in physics, and especially in electric science. The worst that any man ever said of him was that he was crazy on the subject of the talking machine.
The record is full of evidence of the employment of "agents" from the community by the complainants in a search for matter wherewith to attack him. So that on the theory of the complainants and the theory of this decree, the wickedness and devilish cunning by which he sought to impose a fraud upon the public and to work out a great robbery must have been conceived after the publication of Bell's invention in 1876; and to further the scheme, that this witness fabricated a history in every detail and incident bearing on the controversy, covering a period of twenty years and over. He must have made and partially made telephones, having the necessary and harmonious appearance of age, of the most ingenious description, and prepared his story in that regard to stand the most scientific cross-examination in every detail, aided by trained experts.
While it may be true that a man may become suddenly vile, and change and radically contradict the evidence of the course of his life, and while there may be one or two or three illustrations of such monstrosities in the history of human nature, yet it has never been true in the history of jurisprudence that a fabricated story, lying in its general plan and lying in its detail, covering a long period and a series of transactions, could stand the tests applied to it in the courts of justice.
Drawbaugh's testimony covers 332 pages of closely printed matter in this record, of which 180 pages are cross-examination, and we think it may be said that the complainants commanded every available resource and all the ability and knowledge, both scientific, legal and common, in this work that could by any possibility be put into an attempt to break a witness by cross-examination.
A careful reading of this testimony, it seems to us, is convincing of itself and by itself of the truth of the story. The very faults of his memory, the immaterial contradictions and changing of immaterial dates only go to strengthen the conviction that the history as related is genuine and truthful. It is without a trace of the inflexibility which characterizes fabrication. The man that speaks is in harmony with the history of the man's character as related; in harmony with all knowledge of the honest, ingenuous, open-minded genius, as portrayed by the account of his life.
He will not corroborate Eberly, a preceding witness, as to a conversation in 1861-64 which was greatly in his favor, for the reason that he "cannot remember it."
He will not corroborate Lowrey's testimony that he was shown the cup instrument by Drawbaugh at an early time. He says: "I have been trying to recall it, but I cannot."
If he were cunning and corrupt, he certainly could, when examined in 1881, have been able to describe a rude receiving instrument, as he had described a rude transmitting one. Yet he says he cannot remember the first experiment in receivers, because there were so many different attempts and trials (11 Defts., p. 760), and so the instances of fairness occur throughout his testimony.
Drawbaugh not a Learned Man.
It is said by the complainants that Drawbaugh was not a learned man, and among the arguments to support their theory of inherent incredibility, they say in effect that in the nature of things, no one but a scientist from the curriculum of the schools could have invented the telephone; that it was beyond his mental grasp; and it is said to sustain this proposition, that his inventions were of barrel machinery, jig-saws, nail-plate feeders, measuring faucets, and sundry electrical contrivances; or, as suggested by counsel, "mere mechanical contrivances and improvements;" and the fact of his busying himself with other inventions in mechanical contrivances is further used in support of the theory of inherent incredibility, as showing that he could not have conceived or had his mind upon so great a discovery as that of the transmission of articulate speech.
So far as the learning is concerned, we believe it can be shown that successful inventors are not the product of the universities, but of natural conditions and of tendencies common enough in American civilization. The tendency here is to learn and advance by experience. American genius cannot be said to be produced, though greatly aided, by school training and discipline. Genius is innate, and the man possessing it, who, even without books, learns of a natural principle or agent, like electricity, by handling and testing its properties, is the man who must advance in its use. No art and no words can portray upon the human mind the impression of a landscape that the actual view will give. No mere theory, though learned in all its technical formulae, can give the accurate and ready knowledge which practice imparts.
Humboldt, in his "Personal Narrative of Travels in South America" (1799-1804), vol. 2, Bohn's ed., p. 111, says: "We found at Calabozo, in the midst of the Llanos, an electrical machine with large plates, electrophori, batteries, electrometers; an apparatus nearly as complete as our first scientific men in Europe possess.All these articles had not been purchased in the United States; they were the work of a man who had never seen any instrument, who had no person to consult, and who was acquainted with the phenomena of electricity only by reading the treatise of be Lafond and Franklin's Memoirs. Senor Carlos del Pozo, the name of this enlightened and ingenious man, had begun to make cylindrical electrical machines by employing large glass jars, after having cut off the necks. It was only within a few years he had been able to procure, by way of Philadelphia, two plates, to construct a plate machine, and to obtain more considerable effects. . . . I had brought with me electrometers, mounted with straw, pith-balls, and gold-leaf; also a small Leyden jar, which could be charged by friction, according to the method of Ingenhouse, and which served for my physiological experiments. Senor del Pozo could not contain his joy on seeing for the first time instruments which he had not made, yet which appeared to be copied from his own."
The Royal Society of London once elected to honorary membership a man who first demonstrated that lightning and electricity were one. It was the same man whose reports as to his experiments with a kite and a key it had formerly refused to receive and had made sport of. He stands in history and science as eminent, and is set down as among the most eminent of natural philosophers. He was a "Yankee tallow chandler's son, a printer runaway boy," for whom the schools did nothing.
Michael Faraday was the son of a blacksmith, and a bookbinder's apprentice. After attending four lectures of Sir Humphry Davy, he gave his attention to practical experiments with electricity. J. Clark Maxwell, Professor of Physics, Cambridge, says, of Faraday's "Experimental Researches," resulting in the discovery of the induction current: "It was at once made the subject of investigation by the whole scientific world, but some of the most experienced physicists were unable to avoid mistakes in stating, in what they conceived the more scientific language than Faraday's, the phenomena before them."
Maxwell on Electricity is largely devoted to reconciling the practical methods of Faraday with the theories of the professors.
Hugh Miller's great conceptions took form when, without education, he was working as a laborer at the Cromarty stone yards.
Ampere worked out difficult mathematical problems with sticks and stones before he had learned the names or forms of figures.
But, says the court below, "Drawbaugh was not only untutored, but he was isolated by his associations and occupation from contact with men of advanced science;" and on such reasoning it is found that he must be a swindler, because he dares to pretent that he invented the telephone.
But it is said Drawbaugh busied himself with mechanical contrivances of comparative insignificance.
In 1793, Robert Fulton conceived the idea of propelling vessels by steam, and we find, by a reference to his life (C. D Colden, 1817): "His time was also much engrossed by devising a method of superseding the locks of canals by a plane of double incline, on which he obtained a patent in 1794. In the same year we find him obtaining patents for flax-spinning and rope-twisting machines and various other mechanical inventions," bearing upon the construction of canals. In 1797 he went to Paris and resided there seven years, during which time he projected the first panorama ever exhibited, and made important experiments in submarine explosives. It was not until 1806 that he made his successful experiment in propelling vessels with steam in America, and not until 1809 that he took out his first patent.
Guttenburg, pending the tardy recognition of his discovery of the art of printing, was engaged upon inventions for new methods of polishing stones, and manufactured looking-glasses. Franklin found time to acquire something of income from the printing-press invention, from improvements in stoves, "Poor Richard's Almanac," and various other contrivances.
Again, the attack is made upon the credibility of this story, upon the ground that such an invention would have been widely known, and would have commanded all the resources necessary to present it to the public. The great success of Bell after the exposition of 1876 is cited as an illustration. We suggest the marked contrast between the presentation of Bell's alleged invention, under the sanction of international commissioners, framed in the authority of the World's Exbibition at Philadelphia, and the invention of Drawbaugh, in the lowly village shop of Milltown, in a by-way not merely of the world, but a by-way of the State of Pennsylvania, and a by-way of County of Cumberland. We submit that the complainants can take nothing of benefit from the fact that such men as lived in that community, and such men as passed that way, should not care to invest in any telephone, which seemed a mystery and a novelty, but of no practical utility to the learned and the rich of the great cities, long after Bell's patents were issued.
Morse conceived the idea of the electric telegraph on the packet ship Sully, in 1832, and on that voyage made his rough drafts of the apparatus. For twelve years thereafter he struggled with poverty to perfect his invention, and to secure any consideration for it. During this struggle he denied himself the common necessaries of life. Not until 1836 was he able to exhibit it to his friends. In 1843 he got it sufficiently before the public to secure an appropriation, and it was used for the first time on the 24th of May, 1844.
Elias Howe for years suffered the pangs of poverty and failure to get friends or capital interested in the sewing machine in this country or in England. He never advanced to fame and fortune until his controversy commenced with Singer.
"And yet," says the learned court, following the theory of counsel, "such an invention is of a kind well calculated to excite public interest and to impress practical men with a quick appreciation of its commercial importance and its pecuniary value, . . . and its efficiency and importance as a factor in human intercourse could have been demonstrated to the public without appreciable inconvenience or expense. Drawbaugh fully appreciated its importance and value. He had the means to patent it himself, and friends to assist him in introducing it into public use. He had the talent to induce others to invest in his invention."
No better answer can be found than in Bell's own case. See New York Tribune, article November 9, 1876, C. Vol. 1, p. 250; The Scientific American, October 6, 1877, C. Vol. 1, p. 273; testimony of Hubbard, Bell's financial backer, C. Vol. 11, pp. 1, 613-4, 662; and Complainants' Exhibits, p. 959.
Exceptional Treatment of the Defence.
Now, what is there in this case that so distinguishes it in the domain of judicial investigation as to require a reversal of settled rules of evidence?
Direct and positive affirmative evidence, unimpeached and uncontradicted, seems to have failed of legal virtue when applied to this particular controversy; and the rule as to presumptions is so radically altered that the testimony of four doubtful witnesses, that they did not hear of a fact -- nay, that they did not remember hearing of it -- shall be received as finally closing the door against the possibility of its existence, and against the recognition of all direct and positive testimony of twenty-seven equally credible men and women, that they actually did see and hear of the thing.
Yet, we are told that if "he" (Drawbaugh) "had a practical telephone to exhibit, he would have selected just such men" as Kieffer, and Wilson, and Lloyd (who was "taken good care of," Complts., 1, 480); and Hauck (who was Drawbaugh's enemyand of doubtful veracity), "to demonstrate it to then and to enlist them to demonstrate its utility and value to the public." And although he did apply to twenty-seven others, it is conclusively assumed that he did not have a telephone, because he did not apply to these four gentlemen. As well might it have been assumed that Howe did not invent the sewing-machine, because it appeared after repeated attempts among his nearest friends, after suffering contumely and reproach in these efforts, that his heart and courage so failed him that he ceased his applications and departed for England without risking further coldness and refusal.
But it seems that this case is not only sui generis in jurisprudence, but the ordinary experience and history of human nature, of men's motives, of men's probity and intelligence, can teach us nothing by which to judge of Daniel Drawbaugh "and the cloud of witnesses who corroborate him." Although the biographies of science are full of instances of great discoveries by men of little or no scholastic discipline and who have had no contact with secientific men, yet as Drawbaugh was not a college professor, but a common citizen of Milltown, where he seldom met learned physicists, he could not by any possibility have invented the telephone.
Although the greatest inventors and discoverers, from the earliest to the latest, have either died in proverty or succeeded only after long failure to obtain recognition of their discoveries, and year after year have suffered every discouragement and the greatest distress; although this has been a common experience even at the most learned and wealthy and enterprising of the world centres; yet, because Drawbaugh, in the little village of Milltown, could not at once command recognition and influence and capital for the new machine whose uses were unknown, "this story must be a fabrication from beginning to end," and the learned Circuit Judge so holds.
And because a community corroborate him, it must be a population of knaves or fools. Even the fact that his fertile mind has produced many other inventions of less note and importance, this very evidence of a mind active in the direction of invention is turned into testimony that greater discoveries are beyond his scope.
The logical conclusion of all this reasoning must be, and by the opinion of the learned court is, that Drawbaugh himself is the malign necessity that demands a new and a special law of evidence and a reversal of all the commonly received notions of human nature of fit this case.
If his story be false, he has built a colossal structure of fiction. The lies in it are bricks in a great building for number, and a flaw in one would bring destruction to the whole.
As the complainants' whole theory and the decision of the court below rests upon the basis that Drawbaugh is a fraud, and has had the ingenuity to set up the story and the influence to get it so overwhelmingly corroborated, we submit from the record a brief sketch of --
Daniel Drawbaugh's History, Surroundings and Testimony.
If a charlatan, as he is set down by the court below, unlike his kind, he has not led an itinerant life. All that can be told of him from boyhood to age, all the evil or good that is known of him, all the evidences of character that a man leaves in the places that have known him, all the impressions which the course and methods of life of men place upon their environment, exist and are written of Drawbaugh in one place and upon one community.
The story from his earliest to his latest years is a very simple and homely one. If it be true that he developed into a Machiavelli in his fifty-third year, the incongruity is worth consideration from the moral philosophers.
Born in 1827, he has passed his life in the small village of Eberly's Mills, or Milltown, in Cumberland County, Pennsylvania.It is three miles from Harrisburg, and the centre of a farming community. He attended the common schools part of five winters, and in his early years was a reader of The Scientific American, when he could afford to pay his subscription; his scientific library consisted of Comstock's Philosophy, Youman's Chemistry, and two volumes of Tomlinson's Cyclopaedia of Useful Arts, together with a publication on the International Exhibition of 1851.
Before the spring of 1860 he attended a course of lectures on physics by Professor S. B. Heighes, now Principal of the State Normal School, and for seven years professor of physical science at the York Collegiate Institute. During his attendance upon these lectures, we have it from Professor Heighes that Drawbaugh was giving attention to electric science, and the professor remembers distinctly that even at that early time he had conceived, and talked of, "speaking through a telegraph wire by electricity."
The same witness remembers distinctly, and fixes the date positively between 1871 and 1874, that Drawbaugh showed him Exhibit "C," and told him that the voice produced "pulsations" upon the machine. It is undisputed that at that early time he was experimenting with electricity. Complainants' witness G. W. Heighes says: "He was an enthusiast on the subject of physics at that early time." He was familiar with the Everett acoustic telegraph and with the Leon-Scott phonautograph from about 1863. "The subject of electricity seemed to be his hoddy."
He was a person of remarkable ingenuity and skill. At the age of thirteen he made a rifle for Daniel Balsey, and at a later period was remarkably skilful in wood-working. At the age of twelve he made a part of a clock.At the age of sixteen he manufactured a small steam engine, an automatic machine for sawing wooden felloes; the last being his own invention. In 1857-1859, he constructed and operated a photographic apparatus, making even the lenses himself.He made for his own use a solar transit and a machine for wrapping electric wires. He made his own galvanometers.Of his skill as a workman, complainants' own witness and his enemies have noting but praise. Very few men would venture to offer advice to him, and he was applied to by others to invent, and did invent machines for them -- the tack machine for Patton; the paperbag machine for Sengiser; and a great many other machines for the pump company and for the axle company. A number of his inventions are enumerated in Dfts., vol. 2, pp. 895, 1061, 1062.
"He wa a great mechanical genius" (Complts., vol. 2, p. 1550) and "a great inventor." (Id., vol. 1, p. 864.) All the witnesses concur as to his sobriety, his truthfulness, and his incessant and tireless industry, and his labors, extending far into the night.
He was careless of his own interests and generous and kindly in his nature. His children were sickly and died, and his wife made constant opposition to his schemes, as tending to take his attention from providing his family with the necessities of life.
The story of Mrs. Drawbaugh presents a picture of the man as he appeared in domestic life, so naturally drawn by this plain woman, that it carries conviction of its truth in every particular. He was negligent in money matters, and when he had money "he would give away the last cent." She refused to sign the deed when Drawbaugh wished to sell their little home, to put money into the talking machine. There is a vast amount of testimony as to his poverty, in addition to Mrs. Drawbaugh's, abounding in illustrations, to which we only briefly refer. [Counsel here cited and referred to a mass of testimony as to Drawbaugh's financial condition.]
Notwithstanding the undoubted testimony that his wife refused to join in utilizing the equity in the property to raise money to put into the talking machine, it is gravely urged against Drawbaugh that his story is improbably because he did not sell the homestead to raise money to introduce the telephone.*fn1i But the court below says, in effect, that the story of his poverty was a fabrication formulated in the answer. The answer was "formulated" and filed in January, 1881. The complainants' witness, Matthews, of whom the learned Judge speaks most approvingly in the opinion, in his Baltimore American article, in speaking of the impression made upon his mind by a visit to Drawbaugh in April, 1878, says: "This unlettered mechanic came very near anticipating Edison and Bell in the invention of the telephone.Nothing but his poverty prevented him from conducting his experiments to a successful issue,"
And the court below says that Drawbaugh is "dishonest" in his pretence of poverty.
Was Drawbaugh a Charlatan?
The able opinion of the Circuit Judge is exhaustive in its treatment of Drawbaugh as a conspirator, a perjurer, and a general fraud.
We have discussed the evidence upon which this theory rests, with the exception of that on which this charge rests. It is found in J. C. Nesbit's testimony in "The History of Cumberland County; Pennsylvania, by Rev. Conway P. Wing, D.D., and others, 1879," published by the Herald Printing Co., of Carlisle, Pa., and containing at page 200 of said publication an article headed "Lower Allen Township, by H. C. Nesbit."
The court assumed that the biographical sketch was written by Drawbaugh himself; but it appears distinctly on the defendants' cross-examination of the witness and the production of the original manuscript, which was under the control of the complainants, and not by them at first produced, that it was in the writing of Hull. It even left the date of Drawbaugh's birth blank, which was supplied in the published article.
Now, the main facts in this biographical sketch are undoubtedly truthful, as is shown by the whole record here. The florid style of the article, on which alone the charge of charlatanry is based, is evidently that of the provincial newspaper man, and entirely foreign to Drawbaugh's. It abounds in terms not possible to Drawbaugh, as shown by his simple methods of thought and expression in the 332 pages of his deposition, which conclusively answers this last attempt to picture his opposite as Daniel Drawbaugh.
We now submit a Brief Sketch of the Conception and Progress of Drawbaugh's Telephone.
He himself says he cannot remember the date when he began to study the subject, and that "it was a long while ago." He had experimented with the vocal organs by placing his hand upon the throat and feeling the vibrations of the vocal chords, and the fact that sound had the effect to set up vibrations in solid substances, he had learned by noticing the effect upon the surface of partitions, and by experimenting in the effects produced by extending a light wooden bar between partitions, and then by causing a vibration upon one partition, discovering that the bar transmitted the same vibration to the opposite partition. He pursued the principle always, that the current must not be broken, and from the first his conception was of a continuous current.
His idea of pulverized matter is, in this connection, interposed in the current, not breaking it, but causing a greater or less flow, as the particles form a greater or less resistance to the passage of the current, as they might be pressed together with more or less force. He speaks of conversing with medical students at Washington, D.C., about the transmission of sound as long ago as January, 1861, the date of the visit being fixed positively by a receipt taken in Washington, and states that he then had his mind employed on the subject.
Henry B. Averly testifies that between 1861 and 1864, and during the war, Drawbaugh, in the mill office (Averly's grist mill), in the presence of several witnesses, including the witness, spoke of attaching an instrument to the office in the mill, by which he could hear all that was going on there without leaving his house. Averly moved away in 1873, in May, and has never been to the county since, and Drawbaugh moved out of that house in April, 1868, and never again lived in it while the witness was a resident of Cumberland County.
In the argument below, counsel for complainants said of David Stephenson, resident of Harrisburg, that he was a machinist, and "worked for and with the Faucet Company (of which Drawbaugh was superintendent), as a maker of patterns, in 1867 and 1868, and that he and Drawbaugh had many and intimate relations with each other ever since. They appear to have been partners or jointly engaged in the manufacture of certain pumps. He has been and still is a friend of Drawbaugh's. Now, here is a machinist and a machine-shop man, a keeper of machinist's supplies stores, intimate with Drawbaugh, having worked for him in his shop -- quasi-partners. . . . If there was a telephone there, he must have known everything about it; but they did not put him upon the witness-stand." In the additional proofs taken in the Overland case, this gentleman, who is highly spoken of, was put upon the witness-stand, and he testifies that he did know all about Drawbaugh's Electric Speaking Telephone; that Drawbaugh showed it to him while Drawbaugh lived in that house close to the grist-mill, during Drawbaugh's first occupancy of that house, which occupancy terminated in the spring of 1868. He shows that Drawbaugh repeatedly experimented with the instruments, with his assistance. He shows that the instruments were connected by wires, and that the wire came from the outside of the building from a porch, and that the wires ran zig-zag (back and forth) "to give length to the wires," and that Drawbaugh told him that it was operated by electricity. He talked through the instrument from one room to another. Later, in 1874-5, he says: "He sent me to the cellar, and after giving me a small instrument in my hand, he suggested that he would go on to the upper floor and speak to me and I should let him know what he said, and how distinctly I heard it. . . . I heard him speaking in short sentences and singing, and then went up-stairs and met him coming towards me, and told him what he said. I heard him very clearly, and I didn't miss any words in repeating what he said, excepting his singing; I didn't repeat that."
Q. -- "How did the sounds, heard through the machine that day, compare in loudness and distinctness with those which you heard through the old machine at the shop at the gristmill, as you have testified?"
A. -- "With more force and clearness at that last time."
He is corroborated as to the later dates by his daughter.
We have the testimony of Prof. Samuel B. Heighes as to Drawbaugh's great interest in physics and particularly in electricity, and of his talking of speaking through an electric wire by electricity in 1859 and 1860, and witness saw the telephone there in 1871-4. And we here refer to the testimony of many other witnesses of a similar character.
The story of Drawbaugh, and of the record, overwhelmingly corroborated by the witnesses for the defence, is as follows:
Early conception and experiments with the continuous current, 1862, 1866, and 1867.
Teacup transmitter and receiver, 1866 and 1867.
Tumbler and tin cup and mustard can ("F" and "B"), 1867 and 1869.
Improvement upon "B" ("C"), 1869, 1870.
Further improvement upon "C" and the more perfect magneto instrument "I," 1870, 1871.
Mouthpiece changed to centre, and adjusting screw inserted (Exhibit "A"), 1874.
"D" and "E," perfectly adjusted and finished magneto instruments, January and February, 1875.
"L," "M," "G," and "O," from February, 1875, to August, 1876.
"H" August, 1876.
"J," "N," and "P," 1878.
With the exception of the old teacup transmitter (2 D. p. 756,) representations of all the instruments are in evidence, in whole or in part; parts of those produced prior to the instrument "I" of 1871 being in evidence, and "I" with all thereafter produced being in evidence in their entirety. The temporary experimental structures, the changes in parts and constructions, great and small, in working out the great discovery are not here, and of the thousand and one efforts made in the progress of the invention there is no memorandum. We submit it is not to be conceived that any mere memory could recall them.
Faraday's experiments, which resulted in the discovery of the induction current, marked and era in electric science, and to reach it he experimented from 1824 to 1831. He kept a record of his experiments. Had he not, imagine Faraday at a period subsequent to his discovery attempting to give from memory the first and second, and the myriad of other things, and details small and great, the smallest of the greatest results, and the greatest of the smallest, during these years leading up to the result. And yet, one of the strongest criticisms of Drawbaugh appearing in the arguments of counsel, and even in the opinion of the learned judge at circuit, was that he was unable to describe all of his first experiments.
In the series of instruments and drawings produced, the development from one to the other appears to have been perfectly natural, from the loose, pulverized, low conductor, to that of the closely confined, so that the pressure might be rendered more easily adjustable; the evolution from the first rude instrument sketched in Drawbaugh's testimony just referred to, to the tumbler transmitter "F." In this also is seen the progress to the wooden cover and mouthpiece upon the diaphragm, in which the membrane diaphragm had given place to the metal one.
In experimenting with the receiver we find him abandoning the unnecessary parts in the tin can "B," as from the latter is evolved the later and more perfect instrument. Upon using "C," and finding that it would transmit, though feebly, using "B" as a receiver, he then places a permanent magnet against the heel of the electro-magnet and finds a great improvement, and Exhibit "C" as a transmitter is the result.
In the next improvement in this machine he incloses the parts, and, of necessity, makes them compact. The experimental magnet is then arranged, and from this comes Exhibit "I" with its several improvements, until Exhibit "A" is the result; later "C" and "I," still having a large diaphragm, were observed to give out a false vibration, and then he conceived the idea of dampening them to prevent the false vibration, by means of an adjustable rubber pad, and then moved the mouth orifice to one side and applied the dampened pad and screw. This not succeeding, he then determined to reduce it in size, and found the best results. After having made crude instruments to test and settle the matter, and finding his conclusions verified, he reconstructed the two into two compact working instruments, "D" and "D," in February, 1875.
From the time of his discovery that the instrument "B," as improved in "C," would act as a transmitter by application of the permanent magnet, he had thus far proceeded directly in the line of improvement of the magneto transmitter, and had done nothing with the carbon instrument, although he used it quite commonly in connection with his other experiments. At this period, in 1875, he turned his attention again to "F," the carbon transmitting instrument. He experimented with carbon, and Halsinger saw him baking carbon composition into cakes. After experimenting with these cakes in the trial tumbler instrument he rearranged them and produced Exhibits "L" and "N," and combined in them the receiver and transmitter. Then he constructed a pair of transmitters with hard carbon, without combining the receiving mechanism in the same instrument, and from this we have "G" and "O."
In connection with the later instruments there is a piece of testimony that seems to us conclusive in favor of Drawbaugh, upon the question of his ability to invent the telephone, and in favor of our theory of the gradual progress of his experiments from the crude instrument, patentable and a speaking telephone, to the perfected and nicely adjusted one.
It is a matter of history, as well as in the record, that the Blake carbon transmitter is in use upon most of the Bell instruments at this time. Blake's sworn statement in the Patent Office, in an interference, shows that he never even conceived the Blake transmitter invention until after July 4, 1878, and that the never made a Blake transmitter until late in the fall of 1878. The other side have put in evidence Blake's patent, which was not granted until long after the date of the commencement of this suit, so that by law and by the rules of the Patent Office, Drawbaugh could have got no knowledge from it. It is further in evidence in complainants' testimony, that the Blake transmitter instruments were not put into use until the spring of 1880, and that the telephones in use prior to that time, were of a form known as the "Phelps's Snuff-box" instrument, and the "Crown" and "Pony Crown" instruments, so that it is not possible, under any conceivable circumstances, that Drawbaugh could have derived any ideas from the Blake transmitter as early as May, 1878. Drawbaugh's perfected carbon instruments "N" and "J," as shown by Stees and Johnson, who testify in the most minute, circumstantial and positive manner, corroborating Drawbaugh in his testimony, were taken to the office of William J. Stees, in Harrisburg, in 1878. They fix the time absolutely beyond doubt, as the 10th day of May, 1878, and that the instruments remained at Stees's office several months. They both identify the instruments positively, and testify that while they were at the office they put them on the telephone line and talked through them, and that they worked admirably; that they saw the instrument, Exhibit "J," and recognize the parts in it just as shown in the exhibit; and Stees further testifies to the important fact, that while the instrument "J" was at his father's office he took it in his hands to carry it across the office, in order to change its location, when his father accidentally ran against him, and he dropped the instrument, and that he discovered at that time that the small, hard carbons which the instrument contained had become loose and fallen out.
William J. Stees is the gentleman who, the complainants show, introduced Drawbaugh to the Western Union Telegraph office, to look at a telephone, and was accidentally killed at the very outset of taking defendants' testimony in the case.
Drawbaugh was seen by Some of the Witnesses working with the Earlier Machines, after the Perfection of the Instruments "D" and "D," on other earlier Magneto Instruments. The Explanation is a simple one.
Some of the witnesses testify to seeing the tumbler "F" and the tin can "B" as late as 1877. But the fact loses all force against the defence, when it appears indisputably proved and is beyond the ability of conspiracy to have fabricated, that Drawbaugh, on discovering that the magneto receiver "B," as improved and organized in the improved "C" in 1870, would serve as a transmitter, temporarily abandoned the variable resistance transmitters "F" and "B," and did not return to experiments and progress on them till 1875. From them, through a series of experiments and improvements, came finally the perfect carbon instruments taken to Stees's office in 1878, above referred to.
Of the Comment that Drawbaugh was still experimenting, and said the Machine was not perfect, at times when defendants' evidence shows that he had accomplished the invention, we say:
Aside from the fact already shown, that he was at work on the magneto and carbon instruments at different times, there is a very simple answer which appears incidentally and naturally throughout the record. No effort was made to bring it out, and it appears in the testimony of witnesses, as in that of Drawbaugh, without consciousness on their part or his, that it was of any special consequence.
It is this: That the instrument in his view "was not loud enough for practical purposes" unless it would talk, without holding to the ear, and convey the sound as far as ordinary speech. He wanted it to talk out as a man talks.
As George Free puts it of his conversations with Drawbaugh in 1876, 1877, 1878 and 1879: "He told me that he wanted to accomplish, and could do it, to make a machine that you could stay in one corner of the room, and putting the machine in the other corner, and hear as distinctly as putting it to the ear," and that Drawbaugh told him that he had not done it yet, but "I am working at it, and I am going to get it accomplished."
When that journal of civilization, the New York Tribune, thought the only use of the telephone would be for "diplomats and lovers," when the Scientific American summed up the public opinion of it as "a beautiful scientific toy," when Gardner G. Hubbard, a telegraph manager and Professor Bell's financial backer, "did not then believe the transmission of speech could be made commercially valuable," when all his friends laughed at him, it cannot be wondered at that Drawbaugh, in the little village of Milltown, years before, should not have realized that his instrument had reached practical perfection, when it would talk only by holding the receiver to the ear.
Of the Criticism that Drawbaugh did not make known his Invention to his Associates in the Shops where he worked, we say:
This charge, like many others, has nothing to rest upon.
The Axle Company carried on business at the shop now occupied by Daniel Drawbaugh. It was composed of M. M. Grove, Wilson Baer and Captain J. A. Moore. It commenced on the 23d day of December, 1874, and dissolved on the 29th day of February, 1876. All three, Baer, Moore and Grove, testify to their knowledge of the talking machine during the operations of the company, and as we have seen, Drawbaugh applied for assistance to all of them.
Of the old Faucet Company, which commenced business in 1867, the secretary and treasurer, Dr. N. B. Musser, is dead; but it appears by the testimony of Prof. Samuel B. Heighes that Musser was with him at the examination of the talking machine in May, 1872. Musser was his brother-in-law. W. R. Gorgas, a bank clerk, now thirty-three years of age, residing at Harrisburg, testifies to the fact that the Faucet Company was a failure financially; that he left the shop in September, 1869, and took very little interest in the affairs of the company. He is not called by either party on the point of knowing anything about the talking machine. He testifies that he was sick of patent rights through the failure of the Faucet Company. He remembers that Drawbaugh came to him and wanted him to take a half interest in some invention, he forgets what; but as the witness had lost about $4000 in the old company, he "had had a surfeit of it and didn't pay any attention to it."
John F. Hursh was a member of the old Faucet Company until 1871, and he testifies that he didn't know of the talking machines. For the value of his testimony we have no comment to make, save to cite his manner of testifying.
Jacob A. Shettel, a member of the Clock Company, testifies, and fully and positively corroborates Drawbaugh.
Emanuel A. Gregory, a member of the old Faucet Company, and his son Joseph, who both worked in the shop, fully and positively corroborate Drawbaugh.
John C. Schrader and E. B. Hoffman, and David Stephenson, before referred to, connected with the Faucet Company, give the strongest possible testimony for the defence.
In the Axle Company, the work was largely done by Daniel, H. K. and J. B. Drawbaugh. Daniel Fettrow, John Wolf and Augustus Kahney, all testify to a perfect familiarity with the work on the machines and the machines themselves.
Theodore Grisinger (1 Comp., p. 511), a member of the Clock Company, testifies for the defence. The Clock Company started in the spring of 1878. He testifies to a conversation with Drawbaugh in the spring or summer. The tendency of his testimony is to show that there was no telephone there, and that Drawbaugh was merely experimenting; inasmuch as he swears he did not see Exhibits "F" anf "B," and swears that, as a fact, he could not have seen them and forgotten them, while we know that they were there, from the complainants' testimony, and they are admitted to have been there in 1876 and 1877, as we have seen, we submit his testimony is of no weight. He did see two telephones at some time, and says that he has seen Exhibit "A" somewhere and must have seen it at Drawbaugh's shop.
The other member of the Clock Company is dead.
Jacob Carnes (Comp. 1, p. 883), worked in the machine shop at Eberly's Mills for the Drawbaugh Manufacturing Co., from 1868 to 1871, and boarded in Drawbaugh's family. He testifies that he did not see any telephone and never heard that one had been invented previous to 1880. He is thoroughly contradicted by Mrs. Margaret Brenneman (D. Surreb., p. 103), who lived in the family at the time Jacob Carnes was a boarder there, and she is corroborated by her mother, Mary M. Darr (Id., p. 109), and by John C. Schrader, who boarded with him, supra. Of course, his testimony is absurd, because it is beyond question, and is admitted on all hands, that all the telephones were made prior to 1880.
We now refer to the testimony at length, of the members of the community at and about Eberly's Mills, of the visitors there, and of the former residents of that place, covering the period of Drawbaugh's history of his invention of the telephone, and of the various stages in its improvement.
Ephraim R. Holsinger and his Publication of a Card for Drawbaugh, not including in its List of Inventions the Talking Machine.
He was a newspaper man and a job printer and lived at Eberly's Mills from September 13th, 1873, to November 27th, 1876, but was never there after he moved away, at the latter date. During this time he was much at Drawbaugh's shop, and assisted the latter a great deal in experimenting. He identifies a large number of instruments as having been seen by him at Drawbaugh's shop, to wit: "A," "B," "D," "E," "F," "I," and testifies that he had helped to experiment with all of them. He describes the experiments at length.
This witness was called by the complainants who proved by him that he had published a card for Drawbaugh, before June, 1874, containing a partial list of inventions and not mentioning the telephone. This card figures in many places in complainants' brief, and seems to have taken up considerable space in the opinion of the court, and here it is:
We say of it:
(1) It was prepared by Holsinger, without Drawbaugh's supervision, and as a sort of return for Drawbaugh's aid to him in getting him assistance to start a newspaper. It bears internal evidence of inaccuracy in describing inventions of Drawbaugh's, notably in its description of the electric clock.
(2) It purports only to give a list of patented inventions. -- It omits the stamp canceller, the siphon pump, the machine for wrapping wire, the weather indicator, the gas governor, the automatic doiler feed, all proven by complainants as before that time. It inaccurately gives as patented some things not patented; but Holsinger knew well that the telephone was not.
(3) It purports to give a list of those things likely to bring money-earning business from the surrounding neighborhood, in practical every-day tools among the people where the card was issued. The only electrical machine mentioned is referred to with a special emphasis on its simplicity and the absence of a battery, thus giving assurance of a practical machine for practical uses among the country people.
(4) As a card issued to farmers, millmen, and nousewives in Milltown, the advertisement for sale of a double machine for telephoning would have been absurd.
(5) It was early in 1874, and Drawbaugh had no telephone machines ready for sale, and the card purports to advertise only for sale to the class of people about there, and it omitted the gas governor and wire wrappers and the stamp canceller, for the same reason, i.e., such people did not use them.
(6) As Drawbaugh was then experimenting to make it "talk out," and had not patented it, but was negotiating to get financial aid in the enterprise, he would not care to advertise to patent pirates the matter of his greatest work, to no good purpose.
(7) Drawbaugh was said to be a fool and insane at the same time on account of his devotion to his invention; his labors had come to be unremunerative, and his object was, as shown by his moving to Mechanicsville, the next year, to get everyday work, and let the people know he was doing it without calling marked attention in that community to his "hobby," and the subject of adverse criticism, which was notorious, among the people whose custom he sought by the card.
(8) Holsinger talked through the, to him, perfect, because finished, machines "D" and "E" (not finished until February, 1875), in the summer of 1875, a year after the card; and the "Experiments," as he calls them, of 1874, were with the rude and unclosed machines "F." "B" and "C."
Finally. -- After this testimony, and after his memory was refreshed by the card, the witness distinctly and emphatically states to the complainants that his testimony for defendants, as just analyzed, is correct, and says his memory is unchanged.
Any one of the foregoing reasons is a more complete explantion of the card, than the assumption that this reputable and unimpeached citizen and the host of corroborative witnesses are perjurers, or that Drawbaugh did not advertise the telephone because he did not have it.
Of the witnesses, all, with the exception of those where later dates are given (eight), give their testimony as to having seen or talked with the machines prior to June 2, 1875, the date of Bell's invention; and in every case the testimony shows that the date has been fixed accurately by collateral and convincing circumstances. To illustrate, the dates are as accurately fixed in a great majority of instances as in the case of ex-Congressman Haldeman, of Harrisburg. But to corroborate the dates we call a number of witnesses, who testify as to being told of the machines and of the common report of the machines at the dates which the foregoing witnesses have fixed as the time they saw them; and this latter class of witnesses as accurately fix the dates. There would seem to be no possible collusion here, as when a witness has testified to a collateral fact, we have in almost every instance called a stranger to the witness, giving the direct testimony, to establish the date of such collateral fact.
To illustrate the method of fixing these dates, Spafford and McHenry, and Bricker, were commissioners appointed under an act of the Pennsylvania Legislature, of April 3, 1869. Having filed their report of the complete adjustment in the Court of Common Pleas of Clinton County, November 1, 1869 -- a certified copy is shown in this record. They never saw each other after this survey was completed until they met in Harrisburg to testify in this case -- Bricker, Spafford, McHenry. Spafford and McHenry were persons of high standing in the community, and were personally named in the act of April 3, 1869, as commissioners for this important work. Spafford and McHenry were never in Milltown, but heard of Drawbaugh's talking machine from Bricker in October, 1869, while adjusting the Clinton County line, and it was talked of fully by the commissioners at the time. Bricker got his information with regard to it from Henry Drawbaugh at Newville.
Bolye, Brenziger, Goldsmith, Irwin, McGraffic, Stackpole, John H. Updegraff, Mrs. Fry, Mr. Hake, Mr. Young, Mr. Strouse, and Mr. Weaver fix the date of Dr. C. E. Updegraff's visit at May 1, 1875, and the dates are fixed by these witnesses conclusively by fixing the time of the visit and the place they started from in Harrisburg and the details of the visit, through the records of the Odd Fellows' lodge, of the places they were boarding in, and by the testimony of fellow-boarders, and of their talking of the talking machine on their return.
The witnesses for the defence who saw and talked through the machines, identify them as of dates in harmony with Drawbaugh's testimony as to making them; which, according to the latter's testimony, in the succession already shown, down to and including "D" and "E" (which are conceded by the other side to have been perfected machines), and all prior to March, 1875.
The New York and Philadelphia Tests of the Reproduced Tumbler Instrument "F" and the Tin Can Instrument "B," and the Magneto Instruments "C" and "I."
A number of the original parts of these instruments exist and are in evidence, and from the parts and from the testimony of Drawbaugh and other witnesses describing them, reproduced instruments were constructed, in order to show the court how they appeared and acted, when completed in all their parts. Of the reproductions, "F" was the only one of the four which was a carbon instrument. It is in evidence that they had been made some time before the New York tests, and had been very roughly handled, and their adjustments were in a loose and shaky condition. It is said that these instruments failed to operate successfully in the New York tests, although they all transmitted words, and even sentences. The court below lays great stress upon the failure of these instruments to do satisfactory work in these tests. The instruments were again reproduced and properly adjusted at Philadelphia, and worked perfectly. It was impossible for the coinplainants' experts to find any difference between the reconstructed and adjusted machines tested at Philadelphia and the description of them and of their parts and adjustment, as given by Daniel Drawbaugh in his testimony in 1882. It is difficult to see how the criticism could be justly made that the witnesses who testified that they talked through these old instruments, as they originally existed, must have falsified, because of any failure of the New York tests on the reproduced instruments, in the light of these considerations and in the light of the complainants' own testimony. In the original case, complainants' expert, Mr. Pope, testified, agreeing with the defendants' expert, Mr. Benjamin.
It is difficult to see wherein the essential parts of these machines differ, and it is perfectly plain that the New York tests failed of perfect action from the rough treatment the machines had had, and from having been shaken out of adjustment. Complainants' witness, Professor Wright, of Boston, in his notes of the tests of the instruments used in New York, states the results as follows: "'F,' reproduced as transmitter; Drawbaugh talking, Tisdale receiving -- heard very well; understood very well, numerals counted, and conversation." Whatever instruments were used by complainants' experts, Pope, Cross and White, in their private tests, were not put in evidence, and they were unable to say they were reproductions of the instruments used at New York and Philadelphia, and they never tested the reproductions used by Professor Barker at Philadelphia.
Mr. Georige F. Edmunds for the People's Telephone Company, and for the Overland Telephone Company.
The court below was right in its theory in the treatment of this cause, and that theory was that either this method of transmitting speech through a wire, and by what are called electrical contrivances, actually existed at the time that the defendants' testimony in the court below said that it did, or the whole of the defendants' testimony is false.
After the utmost inquiry and the utmost contrivance and ingenuity that could be brought to bear, it was found by the court below, that these machines, which were said to have been used and practised by Drawbaugh, were in substance and fact the same sort of contrivances for transmitting articulate sounds through an iron cr copper or any other metallic wire, as those of Mr. Bell, and therefore, as the court below held, there was only one way to get rid of this cause below, and that was to find that the story that was told by Mr. Drawbaugh, of himself and of his work, and the story that was told by his neighbors and visitors and the great mass and cloud of witnesses that came from that community, was untrue, and that, so far as this part of the case is concerned, is all there is to it; and that is exactly what you have got to do when you study this testimony -- what Judge Wallace did.
You must adopt his theory, which I will state a little later on, and hold that the whole of this thing that was said to have existed on the face of the earth from 1868 or 1869 down to 1875 and 1876 and thereafter (I suppose poor Drawbaugh had a right to go on with what he had, although Bell had come on the scene) is a pure fabrication, a pure illusion. I don't mind about epithets; you can call it illusion, delusion, fabrication or anything else. The question is whether those things took place on the surface of the earth at that time. If they did, then, confessedly, according to the finding of Judge Wallace below, and according to the arguments of our learned friends on the other side, if those things took place that were said to have taken place prior to the date of this patent, as this testimony tends to show, with whatever of imperfection this witness or that witness may be found to have been guilty of, either purposely or otherwise, then Mr. Bell's case as a prior inventor and as entitled to prevent the use of these machines, that are said to have been invented by Drawbaugh, has no place in this court.
It is not the question that you are now to pronounce upon, whether Mr. Drawbaugh shall have a patent for a particular thing. It is the question of whether he or those who have taken up his cause shall have a right to use their instruments against the intervention that you are called upon to make because Bell is a favored and prior inventor; and therefore it is of no consequence whether Drawbaugh has an application for a patent now pending, or whether he ever made an application or thought of making an application for a patent.
The point is whether Mr. Bell is entitled to stand upon the law of Congress which says that if he is the first and prior inventor of a useful invention, and has made a proper application in a proper way for its exclusive possession and use, he shall have it. That is all. So that, what is to become of the Drawbaugh invention, or the Gray invention, or the whosoever invention as it regards a monopoly to be obtained through the Patent Office has nothing to do with this case at all.
Now, let us see if we can find out, according to the ordinary and universal principles, and practice and experience of mankind, whether we can believe anything in respect of an alleged historic event, that is said to have occurred, before fame had glorified some later discoverer. Let us see what a telephone is. It is a contrivance for transmitting speech. When the air is fair, as it is to-day, it is an amazingly good one. You and I talk to our grocer, or our doctor, or whatever, and it is extremely convenient. There comes around a sudden change of weather to-night, and to-morrow morning, I try to talk to my grocer and my butcher, and I tell him I want lamb, and he says, "Is it beef you want?" The thing is out of adjustment, and after trying and trying and hearing a roar in your ear -- and somewhere in some of these books there is stated that in these earlier times (supposing it is not all a lie and an invented lie) that was just the thing that happened in one of these ancient Drawbaugh contribances; that one witness who put his ear to a thing, instead of hearing a voice, heard a roar. Well, we have all heard a roar, and are inclined to tear the thing down and throw it out of the window, and send it down to whoever is chief of the performance here (and a very good fellow I believe he is), and ask him to refund our money. The thing won't go. You are in immeasurable wrath and indignation. But when you come to look at this telephone you find that, on the whole, it is an extremely useful, an extremely ingenious, an extremely valuable invention; but when you find it out are you to say post hoc ergo propter hoc?
Are you to say that nobody ever did anything of that kind before, for the simple reason that somebody who finally got force enough, with capital behind him, with science as his handmaid, with the stress and urgency of competition in telegraphy, like the Gold and Stock Board in New York and The Western Union Telegraph Company, struggling for the ascendancy in the best means of communication, hesitatin for a year or two before they believed the thing was of the least possible consequence -- are you therefore to say that every man who lived in this neighborhood in Pennsylvania, and that this old unlettered man, whose life had been pure from beginning to end, are liars?
There is nothing else, in my judgment, in this case, on the point I am now speaking of, except that we take up what has at least come to be a famous and accomplished fact, and say that everybody ought to have known it before, and that if anybody had known the fact before and could not make anybody else believe in it, it must be a lie. Now I deny that proposition. It is against human experience; it is against human morals; it is against every principle and test that we apply to the belief that we are called upon to express one way or the other in respect of human testimony.
Now, therefore, I want to ask your Honors, in the brief time that I have -- and I shall not refer in detail to this testimony, but I wish to ask you to explore and to read this testimony both of the complainants and of the defendant, in this People's case and the Overland case, which brings in some later testimony -- to read this evidence and see whether you can say as Judge Wallace did, that one single part of the evidence, namely, the statement of this poor old inventor himself, is a fabrication, and that other parts of it, as to events that they say took place on the earth before this patent of Mr. Bell was applied for, were pure delusions, and that the testimony of scores and scores of men and women having no common concert (unless it is brought about afterwards by a conspiracy that involved every one of them) was a fabrication or a delusion.
If we were to carry ourselves back, if you please, and to try this case as it might have been tried if the law of Congress had been a little changed, so that instead of having an appeal to the Suprmee Court of the District of Columbia on a refusal of the Commissioner of Patents to grant a patent, we had an appeal to this court; if Drawbaugh, sorrowful and sick and miserable and harried by judgments and creditors and delusions and crazinesses (as some of these witnesses say about this very thing, which I shall come to presently again) had applied for a patent before Mr. Bell had appeared on the scene at all, and the Commissioner of Patents had said, "I won't grant you this patent, not because of anybody or anything else, Reis, or a string telephone, or whatever, or a harp of a thousand strings" -- that my brother on the other side will delight your Honors' fancies with, if he does not convince your judgment, -- "I will not grant you this telephone because it is of no practical use; it is not a useful invention. You have got a toy.You have got a demonstration of what is called a scientific fact. You have got a thing here which, when a person speaks into one hole, at one place, another person can hear it at another. Of that consequence is that? No possible consequence to humanity." Just as Orton thought; just as everybody but Pope -- who had a vision of the future that none of the business men, who had money and who had enterprise and who had ambition and who had competitions, could be made to think, for a whole twelve months or more, of this very Bell apparatus, thought. The Commissioner of Patents says, "I won't grant you this patent." And now we appeal to this court, and not to the Supreme Court of the District of Columbia; and we come on here with this proof, and we show to your Honors, by this same set of testimony, and with all the counter testimony, that there are five per cent of that whole community, called as witnesses -- and I think that is a fair statement; call it ten per cent if you please, or twenty -- who say, "We were around Drawbaugh's shop all the time and never heard of such a thing;" but there is your ninety per cent or eighty per cent or seventy per cent or sixty per cent who say, "We saw and heard that thing go." Well, you say, "It must be proved, upon all human grounds of considering testimony, that that thing did happen -- that you have got a contrivance that will do that thing."
Now you have got over that point. Now, if you had heard that testimony pro and con -- taking it all, before fame had lit its lamp and flamed it over this world, could there be a doubt that you would say that that thing did exist, and that Drawbaugh did it? It is impossible to deny it. Then you would come to the second question: "Well, what of it?" That is just what these wise and prudent and urgent and ambitious and learned and critical men said -- all but Pope -- for a whole year after Bell had brought his operation of 1877 to public and commercial view, and was refused, because, although they admitted it would exist and did exist, yet it was of no consequence. And it would have been open to question; and if I were sitting in your place in 1875, when this testimony had been presented on appeal from the Commissioner of Patents to me, sitting where you are, I am very much afraid that I should have thought -- as I believe you all would have thought, as Orton thought, and as the Stock Exchange thought at New York, and as everybody else thought at that period of time, "We cannot grant this patent, because it is a mere toy." It is like the gyroscope, which flies in the face of all natural ideas of gravitation, as we all know. What of it? Is the gyroscope a useful invention for the practical purposes of humanity? Everybody knows it is not. It is a very useful and ingenious thing, as illustrating a law, and nobody knows what that law is to this day; that is an unseen force or combination of forces that nobody can understand; that violates all our common sense about the laws of gravitation; and that is, that you put a wheel into motion, and although it may lean way over there [indicating], and may weigh five thousand pounds, it won't fall down. Well, what good is that to mankind in a practical sense?So I say, if we carry ourselves back, as I think most sincerely we are bound to do, when we are trying to find out the truth, to see what we should have said in 1875 if the whole of this evidence had been presented to us then as to what Drawbaugh had done, we should have said, "It is plain beyond all possible dispute that he has done that thing;" and we should have been most likely to say, sitting on an appeal from the Commissioner of Patents, "We will not grant you a patent because it is not a useful invention. It is a mere toy or a mere illustration of an interesting circumstance in the law of the vibration of the atmosphere; but as a useful invention that is to be applied to the common purposes of mankind (which is the theory of the patent laws) it has no place here."
Now the question, therefore, is whether this evidence proves, and proves to a demonstration, and proves more and more by the circumstance that there is counter evidence, that this witness is mistaken in his date, and that that witness is mistaken in the identity of the particular instrument that is called to his attention, proves more, and more from that circumstance, -- that it is not this conspiracy which involves two hundred or more people, of all walks of life in this town in Pennsylvania. And as I think, the key to the whole of it is (the circumstance that I have been so shortly commenting upon) that at the time when this invention was being carried forward by this man, nobody believed it was otherwise than the idea of what is now called a crank. Some people -- because people differ in their emotions and their sensibilities and their perceptibilities -- said, "It is impossible. I won't go up and see it," as the Jews did, I believe.When sceptics scoffed and hooted all they could say in answer was, "These things we saw, we heard; we saw the sick healed; we saw the eyes of the blind opened," &c. Nobody believed it. That would dispose of one class of these witnesses, who said it was impossible. The other people said, "What of it? What good will it do that you can speak through this piece of wire and by this contrivance, whatever it may be?" I am not now on the question whether the contrivance of Drawbaugh was the same as the contrivance of Bell or not; that is another question. I am speaking on the question of whether there did exist in those years, beginning in 1863 and going down to 1875, (I will stop before the Bell application for the first patent was filed) the implements named, and whether those things did take place there. The other class of people say, "Oh, yes, we have heard of that sort of thing. We didn't take any interest in it. It was funny; it was queer;" -- just as you say of thousands of devices for children and that sort of thing; the discovery of some new force of nature which the great mass of mankind believes cannot be applied to the positive and the effcient objects of human affairs. Now, when you come down to 1877, as I say, when Mr. Bell's final and real patent was obtained and had got through a year of struggle, the thing discovered, either by Gray (as I believe) and absorbed, to use a moderate expression, by some of the occult contrivances of the Patent Office, without the personal combination of Mr. Bell himself, so far as I at this present moment believe, but in some way absorbed out of the secret archives of the Patent Office into a remodelled specification -- he has got his patent of 1877 that does describe a device that will do that thing. That having been done, it takes a year or more before he and all his coadjutors, he and they with millions of capital and enterprise and ambition behind to push it forward, and not an over amount of scruples before to retard it, can bring it to be believed in and invested in and operated by the public of the United States as a useful invention. It turns out to be useful.
Now they tell us that that staggers human experience; if I substitute Drawbaugh's name for Bell's my learned friends say it staggers human experience; you cannot do anything of that kind. If Drawbaugh had done the same thing that Bell had, in the same time, you would have believed the whole thing was a conspiracy and a lie and that the thing did not exist now. You would not have believed the evidence of your senses; yet in Bell's case it took a year or more to persuade anybody -- people who, with money and with capital and with ambition and with competition to contest for the best means of monopolizing the interchange of communication across this continent and every where else, to think it was of the least possible consequence. Now, may it please your Honors, is not that a commentary of some weight upon the audacity (and I use that in its best possible sense) of the gentlemen on the other side and the learned Judge below, in the treatment of this subject. Judge Wallace was even wiser than they, under the impress of his considerations, in finding a means of getting rid of this proof of what had taken place. I am not now, you understand, on the question of whether Drawbaugh's contrivances, if they existed, were the same contrivances as Bell's. That you will come to understand, if you have not already. I don't suppose there is any question about that, but no matter for that. Judge Wallace's only way out, under whatever intellectual or other impression of this tide-wave of what had come to be a famous discovery, was this. It was, as he saw, impossible to get rid of this testimony on the ordinary principles, which, ever since jurisprudence was invented, have been applied to finding out the truth. Here says -- I will not quote his language, but that is the idea and scope of it, and I only refer to it because it is the best possible and the strongest presentation of any grounds upon which you can say these things did not exist and happen as they are related to have existed and happened -- he says: Why, here is a whole community, a well-ordered, respectable, quiet body of people, engaged in every occupation of life that makes up a well-ordered and respectable community. Out of these, within the circuit of the geographical limits where an inconspicuous or crazy or inconsequential, not useful but interesting contrivance had been discovered, witnesses are called upon, one by one, to state what they remember.They say with endless iteration, -- but not repetition of the same date and circumstances and event, which would give some ground to say, "Why, there must have been a convention to see this thing, or else the whole thing is in some way a delusion or fabrication," -- but week by week and month by month, as the ordinary events of a social and respectable and well-ordered community made it happen that one or the other of its members should go to that place, they saw these things, which existed for some purpose or other -- if they saw them; they heard these voices, and were able to hear and speak to a person in a distant room by applying their mouth to one and their ear to another, as the case might be (I am not going into the details), and therefore, as they say, they saw the thing and they heard the voice. How are you going to disbelieve it? Why, Judge Wallace says that the only way you can possibly disbelieve it is to believe that the man -- now I state this strongly; I exaggerate, and logically exaggerate, merely to show you the absurdity of the proposition -- Judge Wallace says, "You cannot believe anything of that kind, because there was not any such fellow as Drawbaugh; there was not any such shop."
Now, as I say, I have exaggerated that; but logically he says: "I cannot believe all that these people, of unquestioned respectability, and in every walk of life, say that they saw and heard before the great dividing line of fame and no fame (which is a great dividing line) had been drawn in 1877 or 1878, or whatever the time was; because, if I take Drawbaugh alone ad there had been no other witness in the case, I should have said, it is absolutely incredible that Drawbaugh could have done that thing." Now, that is the honest logic, if your Honors wil read that opinion, and the honest statement (although I have paraphrased it) of the judgment of the court below; and I repeat that it is the best ground on which the complainants' case below and the appellees here be put. Now it is, I confess, a little bit new, and I shall speak of it with reserve and modesty, tht a judicial tribunal should so reason.To illustrate; as in a case of treason, for instance, where the Constitution requires that nobody shall be convicted unless upon the evidence of at least two witnesses, where the first witness to prove the treason who was pars inter partes, says, "I was a coadjutor in this treason of the respondent," and himself tells the story; the Judge charges the jury, "Why, this man's story, this coadjutor in the treason, this accomplice, I should not believe if he told this story alone. I don't believe he was there, if I took him alone, at all. The whole of his story standing alone would challenge my disbelief, on his own statement, instead of my belief. Therefore, lief, on his own statement, instead of my belief. Therefore, gentlemen of the jury, although there are tow hundred people who came together, a band of patriots, rushing to the scene of the corpus delicti, who swear that they saw this man engaged with the respondent in committing this act of treason, they are not to be believed; they are acting under a delusion, because if I had that fellow alone, I should think he was a liar and a scamp." Now, what kind of logic is that? What kind of morals is it? What kind of philosophy is it? What kind of persuasion is it to the constitution of the human mind to believe or disbelieve any evidence? I need not say that it is perfectly absurd, and yet I repeat with emphasis and deliberation that that is the ground, stated ground, upon which the court below held that the Drawbaugh contrivances, machines, instruments, operations, facts, never existed on the surface of this earth until after -- never existed at all, because nobody contends that these events took place that are described by the witnesses after 1877 and 1878.
I beg, for the sake of human justice, that whatever may become of this cause, which, compared to the infinite measures of justice, is a small one, great as it is, that your Honors will not commit yourselves to any such theory of the weighing of human testimony as that. But that is what it is. I have not overstated it. Read his opinion. But now let us see how they treat Drawbaugh alone. Let us suppose now that this invention was not famous, and that the millions behind and the millions before, and the great light at night and the cloud by day to lead us did not exist, and we were to look at it as a simple fact; what would you believe then? Suppose it stood on the testimony of this old man alone? Because I don't mean to leave Mr. Drawbaugh in the category in which Mr. Justice Wallace left him.
It has generally been supposed, perhaps erroneously, that the whole life and conduct of a man, when he gives testimony about any event that he says he knew about and that he did himself and that was within the category of human possibilities, and not against a law of nature, -- when you would say he was crazy, insane, and therefore, although perfectly honest, not to be believed, -- would be considered, and, if his course of life had been such as to show him, as we are all shown, whether Judges or gentlemen at the bar, or bystanders or suitors or whatever, to be honest, he would be believed. Now, how are you going to tell whether a man is an honest man or not? How are you going to find that out? All that we can judge by, as we have not omniscience and do not know the secret hearts of men, is the life and conversation of the person in question. If a man is brought on the stand to testify, of whose career for twenty or thirty or forty years, the twelve men in the jury-box and the three or the five Judges on the bench, as the case may be, at a nisi prius trial, know without any proof what his reputation is in the community; that he has been a gambler; that he has been an immoral man; that he has been averse to everything that upholds the good order and morality of the community; in other words, that his color is bad, without referring to specific instances; if a man of that kind comes up to testify, and although he may say something within the ordinary course of human nature, if it is disputed, you doubt it. That is the law by which you measure men. Now, take it on the other hand. Suppose, respecting the same event, a fact that could exist, not a statement that showed that the man must be insane, poor fellow; whose life from his birth to the day of giving his testimony has been pure; has been upright; has been respected; and that in the whole forty years that he had lived in that community never a shade or a suspicion had touched it; and he tells you a tale of an event that he himself was the doer of, and which is within the range of sanity; would you believe him, although two years, five years, ten years after, a scientist, glorified by capital and by fame, had said, "I have done that thing, and therefore you could not have doen it before." That is a statement of this case as applied to the testimony of Drawbaugh himself, if you take him alone. And you have refused to uphold many and many a patent in this court as you ought upon testimony more slender than would be the testimony of this honest old man himself, if it stood alone. And yet he is surrounded and fortified by scores and scores of honest and respectable people, whose characters are not impeached any more than his is, who say that they saw and heard that thing done before this dividing line, about which there can be no mistake, between the glorified fame of Bell and his coadjutors, and what preceded it.
So that I submit, if your Honors please, you are to be governed in reading this testimony be this test; and that is the test to which I appeal; only read it with all its drawbacks -- and there are drawbacks which my learned friend on the other side will present; drawbacks which I say, according to all human experience in finding out truth, fortify rather than diminish the force of the evidence in favor of this invention of Mr. Drawbaugh. Taking all that in, if you act upon the principles which have been common to intellectual operation for a thousand years and must always be, if you seek for the living truth, as you do, and unless you reverse all the principles of finding that have ever guided you before, you cannot fail to say that it is proved that this old man, in that obscure place, where the forces of nature are just the same as they are at Beacon Hill in Boston, that this old man in that obscure place, did do the thing that Mr. Bell did, at some time in 1876 or 1877, for this purpose I do not care which.
Something has been said about Gray's having applied for a telephone patent in 1876, the same day that Bell did; there is no claim that Gray stole it from Bell; he, therefore, as all agree, invented a telephone cotemporaneously with Bell; so it was not, after all, impossible that any mind save Bell's should have made this discovery. But I will not dwell on this line of argument, because I cannot take up your Honors' time. What I have said is, to my mind, the key to the whole thing on the question of priority. Perhaps something ought to be said for a single moment, about what the court below said in respect of the intrinsic impossibility of Drawbaugh's having done this thing. Perhaps it is not necessary, because the court below was obliged to find (to pursue his own logic) and refer only to the intrinsic, as he thought, impossibility of Drawbaugh's being capable of prophesying among prophets, or of good coming out of Nazareth, or whatever, upon the ground that Drawbaugh was a pure liar; that he was a perjured scoundrel, weak, feeble, but pernicious, to use a phrase which I hope will not offend this administration, pernicious in having sold himself to a band of adventurers who are trying to do exactly what Mr. Bell and his band of adventurers have been trying to do, and that is to make something out of an invention; because when you come to the question of adventurers and epithets, of course one invention is just as good as another, whether it be a new one or an old one; everybody goes into it who thinks he can make anything out of it. Now to fortify his motion, Judge Wallace, feeling evidently that the ice was a little thin that he stood on, in respect of these methods of weighing testimony and finding out truth that I have referred to, rather steadied himself as a man on stilts does with a long pole, to keep from falling over -- on the idea that it is intrinsically impossible that Drawbaugh could have had such a conception. Why? Because it required what is called scientific training. It required costly and particular apparatus. It required scholasticism, and a long drawn-out and drawn-up consequence of study, from step to step, that should have at least brought him, as the Judge thought Mr. Bell had been brought, to the point where this crowning glory of discovery would have come. In other words, it was logic; step by step of a logical proposition; and nobody, therefore, could discover what was before an unseen force of nature, always existing -- how many more there are that are yet to be discovered, if your Honors please -- but not one of them, to this day, has ever been discovered by such logical steps as Judge Wallace thought were necessary a man should take to do. There is Mr. Bell himself, struggling and hoping, as people do, for the philosopher's stone, exhausting all the sources year in and year out of a trained and philosophical and scientific mind, with every adjunct that scholarship and research and history could give him; and he finds the philosopher's stone, which is to turn everything into gold. He was struggling and struggling to do something which he could not reach. How did he get it at last? A particular amount of tension in a particular set of mechanical contrivances happened to be such that, finally, struggling away, they heard a word; and then for weeks -- I am not now stating this, you understand, with precision, to illustrate what I say -- they had heard one sound and there was hope. Now, it was not logic that did that. It was not logic that led Franklin to put his kite up in the sky. It was not ligic that has led anybody at least to discover anything. It is not training that does it, although tranining is useful; the man is better equipped. The soldier can fight better who has a multiple discharge gun than the man with equal courage and bravery who has only an old musket; but they are both true patriots, and they both have the same intrinisic force and capacity to do.One has better implements; that is all. Now, what is the history of this sort of thing? How many instances there are! I might take all the time that is left to our side to tell you, and tell you rightfully, not speaking out of the record -- because I believe you have decided after great consideration, that the court may be supposed to have some general knowledge of human events without its being printed and sent up to you by the clerk. Suppose you take Columbus to begin with. His instance is so familiar that it is useless to refer to it. Suppose you take Arkwright, the great English inventor of the cotton spinning machinery; was he a student, a professor, a teacher, of any kind of science? Not a bit of it. He was a barber. Suppose you take Watt, another Englishman, who, I believe, is somewhat famous, and who, perhaps, may be referred to without violating the proprieties, although his name is not mentioned in the record. What was he about? He, like poor old Drawbaugh, was engaged in his youth, when he was fourteen, in inventing an electrical machine; for aught I know it may have been this electrical machine; because this telephone is an electrical machine, and nothing else. He was doing that very thing when he was a mere lad. Where was his scholasticism, his great accumulation of all the scientific knowledge and facts that had been discovered in natural history in the centuries before? I can run down, may it please your Honors, through Fulton, and Whitney, the cotton-gin man; and what was he? A man skilful in mechanics? No; he was a lawyer in an obscure country town in Georgia, living on a plantation, and I believe teaching the children -- teaching the children of some planters, who were great people in those days; and it was suggested to him what a great thing it would be if you could only find out a way to get rid of the seeds in the cotton and separate the fibres from the seed. This lawyer invented the cotton gin. Up start my brothers on the other side and say, as Judge Wallace said below, "Why, it is utterly impossible. This man was bred to Blackstone and Coke; what does he know about the method of separating the seeds of
cotton from the fibre?" Suppose somebody in a distant part of the country, three of four or five years afterwards, this obscure thing down there working well, should say, "It is impossible to believe this man Whitney who swears, and the men on his plantation who swear, that they had a cotton gin working there for five years before an application was made in Mississippi, by somebody, or in Louisiana, where a great syndicate had been gotten up to exploit a cotton gin that had been discovered." I could go through, of course, innumerable illustrations which demonstrate -- and I am ashamed to take your Honors' time even in referring to it -- that the history of human experience from the beginning of time that we have any record of, down to this day; from the time, as I believe, the Bible, or some other good book, tells us that Tubal Cain invented the art of
playing the flute, the first musical instrument, it is said, that ever was made, down to this day -- shows that the correlation between what we call scientific knowledge and education and the discovery of these important forces of nature, and their application, has no connection whatever; and that it is more often than otherwise that the obscure genius whom God made and whom the schools did not make, and the obscure mechanics, most of whom unhappily have never got the benefit of their inventions, have been men who have brought to the knowledge of mankind most of the things which we now consider to be the most useful to us. Therefore, I say, without going, as I said, in the time that must be left to my fellows -- without going into the question of the identity of these machines; without going into the utmost gravity of that question about what happened between the time when the application of Mr. Bell as formulated and put into the hands of Mr. Brown, was filed in the Patent Office, and on the same day with Mr. Gray's caveat describing what he would do and what happened thereafter; and without going into the question of the effect of these claims, in respect to their validity and scope and so forth, I must say that in respect of the topic I have called your Honors' attention to, that it is the end of this case: If your Honors will take this testimony as to what took place in an honest and respectable community in Pennsylvania for years and years, year in and year out, proved by the whole body of the community, of every calling, in support of this honest old man whose career is not questioned as a man of purity of life, of uprightness of character, although poor and sorrowful, there is an end of it.
Mr. James J. Storrow for the American Bell Telephone Company in reply to the arguments about the Drawbaugh defence.
The story as told. -- Drawbaugh's story and the recollections of his witnesses, if they are reliable, come up to this: That for eight years before the Bell patent he had electric speaking telephones at his machine shop at Eberly's Mills, three miles from Harrisburg, the capital of Pennsylvania, and with them transmitted speech so well that the common country farmers coming there could and did use them, speak into them, and understand all that was said; and that this was known to hundreds of persons, in Harrisburg and all that part of the country. If that is not true in the fullest sense, then the testimony of himself and his supporting witnesses tells a false story. Yet it is a part of his history, put into the answer, testified to by himself, agreed to by every one of his witnesses, that not one of his telephones was ever used for any useful purpose whatever. He never actually took one outside of his workshop until long after the Bell patent.He never offered a single one to a human being to use, and not a human being had ever asked for one to use, when this suit was brought in October, 1880, long after the Bell instruments had gone into extensive commercial use. He did not himself, even, apply them to any useful purpose. They were not arranged so that he could speak to his workmen form his office, nor call from his shop to his house. According to his own story, they were kept in a box, and all he ever did was to take them out from time to time and connect them to wires running from one part of his shop to another merely for the purposes of experiment, or to gratify curiosity. It is thus a part of the case which he asks the court to believe that these instruments, for eight years before the Bell patent, were known to hundreds of people, and were matters of common talk all over his county and in Harrisburg, the capital of a great stat; yet it is another part of his story that this great invention, perfected, they say, in his shop and thus made known, never led to the use of a telephone by any human being; though it is also a part of their story that he recognized that the invention was of surpassing interest and enormous value -- sure to bring fame and fortune to its makers. They say in their answer that nobody had ever transmitted speech, even up to the time their answer was filed in January, 1881, "by reason of any information derived from Drawbaugh," and that all the telephones which had been used in the world were the result of "independent inventions by other persons," and were not due to Drawbaugh.
It seemed to us impossible that a practical telephone, successfully operative, could have been known to that community, within three miles of Harrisburg, for eight years before the Bell patent, and left no mark. Mr. Bell's feeble instrument at the Centennial made him instantly famous all over the world. As soon as he offered his telephones to the public they went out by the thousands, and all men since have been trying to infringe his invention. Such an instrument, so easy to make when once it has been invented, so cheap, so simple, which everybody could use, so interesting in itself and of such obvious utility, could not help publishing itself if it existed. It is obvious that this must be so, and the experience of Mr. Bell shows that it was so. Judicial experience has taught the courts that there is no better test of the existence of such an invention.
To make out this story, its propounders rely upon absolutely nothing but the deposition of Drawbaugh himself and the mere bare recollections of ignorant countrymen, no one of whom had the least idea even of the mechanical structure of the istruments which they say they saw, and which none of them took any interest in. There is not a scrap of paper nor one of the events which would necessarily arise out of the existence of such instruments as he says he had, to confirm the story. Nothing but bare recollections are produced for Drawbaugh.
Advent of the Drawbaugh claim. -- In July, 1880, when more than a hundred thousand Bell telephones were in use, a company of stockholders who had bought up Drawbaugh's pretensions -- Marcus Marx, Simon Wolf, Moritz Loth, F. A. Klemm, Edgar Chellis, M. W. Jacobs, and Lysander Hill -- filed an application in the Patent Office, and published in the newspapers a proclamation that they had a vast number of affidavits to support their claims, and a "cash" capital of five million dollars, and "within sixty days would drive out all the telephones in the market, save the one they held, or else compel the Gray, Bell, and Edison lines to pay the new company a munificent royalty." That was the first time the world at large had ever heard that Drawbaugh had a telephone, or that he claimed to be the inventor. The "cash" capital was a humbug -- there was none.The sixty days was a humbug; for they were enjoined on their first telephone, and have put out none since. Was the rest of their story any better?
They were promptly sued (October 20, 1880), and a preliminary injunction granted. When they came into court, it appeared from their testimony that they had not used, and never proposed to use, Drawbaugh telephones. Marx, Wolf, Loth, and Klemm formed their association before they had heard of Drawbaugh, intending to use telephones of a form devised in 1879 by Klemm, one of their number, and those were the only telephones they had employed. They were early advised that they plainly infringed the Bell patents, and that they could not prosper unless they could find not only a telephone, but a "prior inventor." Whereupon a gentleman in Washington who had been counsel for Drawbaugh sent them to Harrisburg. They found that a few days before their visit, Chellis, keeper of a 99-cent store in Harrisburg, and Mr. Lysander Hill, and Mr. Jacobs, then counsel for Drawbaugh and Chellis in litigation about a molasses spigot invented by Drawbaugh and now counsel in this case, had acquired Drawbaugh's pretensions by a contract for which they paid him nothing; so the syndicate bought from them. The only contribution, therefore, the world has received from Drawbaugh consists in depositions furnished by him to help these infringers in a career of infringement they had embarked in before they heard of him.
The story told in their answer is that telephones made and used by Drawbaugh for communicating "between distant points" in and before the year 1874, are "still in existence, and capable of successful practical use." All of this is untrue. "Distant points" dwindles to fifty feet between one part of his workshop and another as the only use pretended, and the exhibits produced are so destitute of working parts that it is impossible to transmit any sound with any pair even alleged to have been made before 1875. To attempt to transmit any sounds whatever, therefore, with any instruments like those which he says he had before the close of 1874, "reproductions" must be made; and the essential working parts for those reproductions cannot be now constructed, nor their original character learned, except from Drawbaugh's own deposition. For not one of his witnesses knew, or had the intelligence and skill to know, how the instruments were constructed, still less the nature of the operation they performed.
Drawbaugh has taken in this case about four hundred depositions, and we have taken two hundred, scattered along through nearly four years of preparation of the case. The first testimony was taken, and his exhibits first produced, in April, 1881. Drawbaugh's own deposition was begun in December, 1881. The proofs were closed in June, 1884. The case was decided in favor of the Bell patent at the circuit, December 4, 1884. All the testimony had been stipulated into the Overland case, then pending, and as the proofs in that case were not closed, the Drawbaugh Company took in that case more testimony about Drawbaugh after the first decision. That was laid before Judge Wallace by consent, and argued to him in December, 1885, when he affirmed his former conclusions. Thus, the defendants not only had every opportunity to take testimony during the progress of the case, but after it had been decided, by the accident of another case pending, they were enabled to take more testimony. If proof existed, they could then have rebutted every conclusion drawn by the court. That they did not even attempt to do that, except in two particulars where they broke down in a manner which destroys the moral character of the defence, is conclusive that no fact or proof exists which can control that decision.
The Drawbaugh Company have made a show of a large number of witnesses, but the mere oral testimony alone, considering the character and standing of the witnesses, their relation to Drawbaugh and their means of knowledge, is much stronger against Drawbaugh than it is in his favor. But such a case as this does not turn on oral recollections. In Atlantic Works v. Brady, 107 U.S. 192, and many other decisions spread in our brief, the rule has been laid down from the time of Whitney's cotton gin until now, that upon a claim made late, after a patent has gone into extensive use, when its profits offer a great temptation, when the invention itself is one which, whenever made, necessarily appeals to the curiosity, to the desire, to the convenience, to the wants of every one, mere oral recollections never yet established a case. The court looks at the probative effect of the man's acts. If the invention is one which in its nature publishes itself, then, if the marks of publication are not found; if the invention is one which goes into use of itself, and marks of use are not found; if it is one calculated to affect the action of the community, and indelible marks in the community are not found, -- the courts do not believe the story. If they cannot read the telephone in the events of his life, they will not accept it from his deposition. Atlantic Works v. Brady, 107 U.S. 192, 203; Wood v. Cleveland Rolling Mill Co., 4 Fish. Pat. Cas. 560 (Swayne, J.); The Cotton Gin case, quoted in Motte v. Bennett, 2 Fish. Pat. Cas. 642; Howe v. Underwood, 1 Fish. Pat. Cas. 162 (Sprague, J.); Johnson v. Root, 2 Fish. Pat. Cas. 292 (Clifford and Sprague, JJ.); Cahoon v. Ring, 1 Cliff. 592; Hayden v. Suffolk Co., 4 Fish. Pat. Cas. 94 (Sprague, J.); McCormick v. Seymour, 3 Blatchford, 213 (Nelson, J.); Seymour v. Osborne, 11 Wall. 516; Aultman v. Holley, 11 Blatchford, 317 (Woodruff, J.); Colt v. Mass Arms Co., 1 Fish. Pat. Cas. 116 (Woodbury, J.); Perham v. Am. Buttonhole Co., 4 Fish Pat. Cas. 468 (Strong and McKennan, JJ.); Smith v. Fay, 6 Fish. Pat. Cas. 542 (Emmons, J.); Brown v. Guild, 23 Wall. 181.
The rules of law go further. If the evidence which the enormous record of this defendant presents does not come up in quality as well as in quantity to what his story would afford if true, the record does not tend to prove that story, but disproves it. If the testimony taken as a whole substantially falls short of what the story, if true, would afford, it disproves the claim. Lord Mansfield said: "Evidence is to be weighed according to that which it is in the power of one party to produce, and of the other to contradict." Cowper, 65; approved in Smith v. Whitman, 6 Allen, 564. The same rule was enforced in Clifton v. United States, 4 How. 242; Standard Measuring Machine Co. v. Teague, 15 Fed. Rep. 390; Commonwealth v. Webster, 5 Cushing, 316: S.C. 52 Am. Dec. 711; McDonough v. O'Neil, 113 Mass. 92; Cheney v. Gleason, 125 Mass. 166; Howe v. Underwood, 1 Fish. Pat. Cas. 162.
The lines of proof which are possible, and which the story if true must furnish, contrast with the proof presented by the claimant. -- There is much proof in our favor from the recollection of reliable witnesses. But the Bell Company can rest its case on Drawbaugh's history and the knowledge of his intimates as proved out of the defendants' own record, chiefly by his cross-examination, and by unassailed contemporaneous writings. Drawbaugh has not presented a single sketch, letter, memorandum or piece of paper of any kind to connect his name with the speaking telephone in any way, until the time when he was avowedly making improvements on the Bell telephone in 1878, after that instrument had got into extensive commercial use. From that time on, written and printed contemporaneous proof of what he was then doing is abundant. If he had had speaking telephones before that, it would have been equally abundant earlier. The Bell Company, however, have found considerable written and printed contemporaneous evidence directly and specifically showing what Drawbaugh was doing, and what he invented during the ten years before the Bell patent; and each one of these papers, all acknowledged by Drawbaugh to have emanated from him, are specifically inconsistent with his pretensions. Two of them are lists he published of his inventions, complete and inchoate, with no telephone among them. Against this, it is on such bare recollections as have been indicated that he relies to prove both the fact of a telephone and the date of the fact.
Remains of instruments. -- They produce also certain remains of instruments, but all those alleged to have been made before the Bell patent are so far destroyed that, with the exception of a pair of magneto instruments, D and E, alleged to have been made in February and March, 1875, no sound of any kind can be transmitted by any set of them. The structure of the most essential working parts, and the capacity of all previous instruments, depend solely upon his memory. Not a single witness ever understood, or had the capacity to understand what their structure was, and, if they are to be restored, the restoration will depend upon the uncorroborated and unchecked testimony of Drawbaugh alone.
In the great sewing machine case, Howe v. Underwood, 1 Fish. Pat. Cas. 160, remains were produced, and from them the experts testified that they concluded that the originals must have contained certain other parts which no longer existed, and that from the indications given by the remains they could reconstruct the machines as Cuvier reconstructed an extinct animal from a few bones. Judge Sprague replied that Cuvier's conclusions were based on the rightful assumption that the extinct animal was the perfect work of a perfect creator; but to assume that about the destroyed machine was to assume, and not to prove the case.
The Drawbaugh Exhibits. -- The different remains are as follows:
The first one, Exhibit F, alleged to have been a carbon power transmitter, and alleged to have been made in 1867, consists only of a broken tumbler A with a wooden mouthpiece B, and two pieces of zinc E, O, and a piece of wire, C. Drawbaugh says that he either made his instrument out of a broken tumbler or that it got broken very shortly afterwards. He attempts from memory to supply those parts which would constitute a carbon telephone transmitter, and to swear that he once had them inside this tumbler.
The instrument B, produced as a receiver to go with F, and alleged to have been made in 1867-8, consists of a small tin fruit can, apparently once used as a paint pot, held by a tin strap nailed to a rough board, with the remains of an electromagnet in front of it. No diaphragm or armature exists.
The next instrument, C, Drawbaugh's second form alleged to have been made in 1869-70, consists now merely of a board framework and a mouthpiece.
Drawbaugh testifies that it had a diaphragm and an armature and an electromagnet. If made as he states, the instrument would be almost exactly, not only in substance but in mere form, a copy of the Bell telephone in commercial use during the first three months of 1877. This also was Bell's second form.
The next instrument now consists of a mere cylindrical wooden box, I, said to have been made in 1870-1. After this mere shall was testified to in the case by a number of witnesses, Drawbaugh added a newly made diaphragm and an electro-magnet, and swore that either these or something like them were in the original.
The next is Exhibit A, which is a rather highly organized receiver in working order, alleged to have been made in 1874.The case is of walnut and neatly finished. It is not a complete telephone apparatus, but only the receiving end of one. The diaphragm C is of black walnut veneering. In front of it is the thin air space and the small mouthpiece or earpiece of Bell's second patent. D is the electro-magnet with a soft iron core, adjustable by means of the screw G. His story is that he chiefly used it as a receiver with the broken tumbler transmitter F. Only two or three witnesses, however, pretend to have seen this pair used together.
The next, a pair of magneto telephones, D and E, very highly organized, have the nice refinements of the best modern instruments; -- the flaring mouthpiece; the thin air space; the short core and large coil; the adjusting screw; the permanent magnet of Mr. Bell's second patent; with all the refinements which Mr. Bell's subsequent experience added and put into the commercial instruments in 1877-8, and subsequently; these are good, practicable instruments, though their cores and magnets are so badly proportioned (and the instruments thereby so unnecessarily weak in tone) that it is difficult to believe that they were made by a man who understood the true purpose and function of those elements and invented their combination. They are alleged to have been made in the first quarter of 1875. The cuts are one-half size.
All these instruments were first put in evidence in 1881. Their existence before that depends upon mere memory.
These are all that are said to have been made before the Bell patent.
Drawbaugh's story continues that at about the time of the Bell patent, or immediately after, in the spring of 1876, he made a pair of very highly organized hard carbon microphones, G and O, in black walnut cases, of a peculiarly neat and graceful shape, and provided with all the refinements of detail of the best modern instruments. C is an iron diaphragm in front of which is the thin air space and mouthpiece. H is a tube of wood (a non-conductor) in which he says he had three flat balls of hard gas carbon, of which one, H, now remains. The adjustment is by a screw, J, in the recess at the back, and this screw is faced with a soft rubber cushion, I. These instuments have, however, a radical defect in the manner of mounting the carbons, which makes them practically poor instruments. It is precisely the defect (too great rigidity in the supports, for the rubber does not practically yield) which appeared in Edison's early carbon telephones in the spring of 1878.
He says that he followed this pair by an instrument H, alleged to have been made in the summer and fall of 1876, which, so far as ordinary observation goes, appears to be an almost exact copy of the well-known and highly organized Blake transmitter in every detail of form, as well as in all its principles. This was followed by J, P, etc., none of which, according to his testimony, were as good as H. His story is that 1876 was his high water mark.
The later instruments, D and E, G and O, H and the subsequent ones are of admirable mechanical construction. He made them himself. They show that he was a very fastidious workman, with ample facilities, which indeed he had in his own workshop. If any of his earlier instruments are rude, it is not because he lacked skill, materials or facilities for making good ones.
His story is, that he made his broken tumbler instrument F and tin can instrument B in 1867. According to his own witnesses, these were the instruments he habitually showed to visitors for nine years afterwards, and through which they say he transmitted perfectly intelligible speech without any trouble whatever during each of these years. His own testimony is that his rude broken tumbler F was believed by him to embody this great invention. But he never made another carbon telephone, nor attempted to make another carbon telephone, nor any other variable resistance telephone until 1876, nine years later. His story further is, that from the time he first made F, "his whole heart and soul were on the telephone," and all the time he could spare from supporting his family was devoted to work on it. This story is not true.
The exhibits themselves disprove it. It is impossible that such a workman as he is, with his facilities, would have kept for years, or even for a week, a broken tumbler and a rude tin paint-pot as his sole embodiment of this wonderful invention, if they embodied it to such an extent as even to promise success. The fact of the extreme rudencess of these instruments and all others that he is said to have made down to the time of the magnetos D and E, -- a period of eight years, according to the dates alleged, -- when compared with his skill and facilities as a mechanic, shows that up to the time he made the better instruments, (whenever that was) he had not got beyond rude and unfruitful experiments which did not encourage him even to spend a day or two in remaking the instruments in a workmanlike shape. The remains prove more than that. They not only show that his enterprise remained in that experimental and unpromising condition (whatever be their date), but by their paucity and their rudeness they absolutely falsify the whole story told by himself and his witnesses, that during all those years he thought of nothing and worked at noting but the speaking telephone. For all the instruments he attributes to that period (1867 to 1876) would not account for a week's work.
[Mr. Storrow then pointed out a number of details in these instruments which, he argued, showed that even if the working parts were what Drawbugh described, still the structure and arrangement of the machines as a whole were so extremely bad and inconvenient that it was impossible to believe that a good mechanic like Drawbaugh would have kept a promising invention in such a shape without at once introducing the obvious modifications necessary to have fitted the instruments even for comfortable experimenting.]
Drawbaugh called fifty-one witnesses (and no more) who professed to have heard speech at his shop before the Bell patent, through the exhibits produced.
String telephones. -- There is abundant proof from statements contained in questions put by Drawbaugh to one of the complainants' witnesses and the answers elicited, corroborated by pregnant circumstances, which shows explicitly that as early as 1872 or 1873 the string telephone was seen in use in the village, at least in the shop of Drwbbaugh's brother, across the street from Drawbaugh's house; while several others of Drawbaugh's own witnesses distinctly and unequivocally state their recollection that the instruments they saw at Drawbaugh's shop, and styled his "talking machines," were string telephones. Judge Wallace decided in his opinion upon the first hearing that it was proved that there were string telephones in the village and at the shop at that time. Subsequently, Drawbaugh took more testimony in the Overland case, and submitted it to the court a year afterwards; but this later testimony, instead of attempting to rebut the existence of string telephones, only affirmed it. It must therefore be taken as a settled fact in the case that, at least as early as 1872, there were string telephones in the village and at his shop. It is a fact in the case that at least as early as 1869 string telephones were publicly known in this country.
Tests of the Drawbaugh exhibits. -- Drawbaugh had fifty-one witnesses who swore to speech through his instruments before Bell's patent. But, evidently doubtful about the value the court would attach to such witnesses as he produced, he undertook to prove by one expert witness, as an independent proposition, that telephones made as he swore his were made would to-day transmit speech. He so asserted in terms in the answer filed, and after the taking of testimony had begun in this case he made with his own hands, and with the assistance of his brother, at his own shop, what he said were "reproductions" of his alleged early instruments. He tested them and afterwards put them in evidence as correct reproductions. He then called a professional expert who testified that he had tested these reproductions with Drawbaugh and that they were "good, practical, operative speaking telephones," while Drawbaugh himself testifies that with the first and most imperfect of the alleged originals -- the tumbler F and the tin can B -- he and the neighboring farmers could without trouble transmit whole sentences, spoken, or read from a newspaper, as early as 1868, and that each subsequent set of instruments were better than the first. Believing the instruments, even as he described them, to be incapable of such results, we challenged his expert to repeat in the presence of witnesses the tests he said he had made with the "reproduced" or original instruments. Choosing their own time and place, three days were occupied in New York, in March, 1882, in testing them, the defendants selecting a skilled preson to speak, and another skilled person to listen, the Bell company merely insisting that shorthand writers should take down what was said at one end, and what the listener thought he heard at the other.
It was specifically proved, and was not denied by any witness, that the instruments offered and tested by Drawbaugh as "reproductions" were much better in their details than the originals of which the remains were produced ever could have been (according to what remained), even assuming that Drawbaugh's statement was to be taken implicitly for the original structure of those alleged parts of the originals which do not exist. It was also proved that the circumstances under which the exhibits were tested in New York were vastly more favorable than anything that could have existed at Drawbaugh's workshop, where the instruments were said to have been used by unskilled farmers in the midst of moving machinery. The result with the alleged reproductions of the alleged early instruments (especially F and B) was, in the language of their own expert, that all they got was "a sound, and now and then a word." Sentence after sentence, of from ten to thirty words each, were spoken into the transmitter and nothing recognized. With all these aids hardly one word out of a hundred was recognized when the tumbler transmitter F and the tin can receiver B, in the "reproduced" and improved forms, were used. In fact, when words and irregular number were spoken into that instrument, out of the few words and numbers which the listener at B thought he recognized, more than half had not been spoken at all. Later instruments did somewhat better. But half the witnesses, including Drawbaugh, had sworn to perfectly intelligible speech through F and B, and the tests proved this pair, even in the improved form of 1882, and with the aid of improved conditions, to be absolute failures.The result of this test was, that if these instruments had existed at his shop exactly in the form in which Drawbaugh says they did, not a word could have been heard by his countrymen witnesses under the circumstances narrated by them. With the utmost allowance in their favor, the whole story told by him and his witnesses of the successful transmission of speech at his workshop during a series of years, is thus physically proved to be necessarily and absolutely false. In Ely v. Monson Manufacturing Co., 4 Fish. Pat. Cas. 79, Judge Sprague, speaking of the sewing machine case, stated the result of such a test. He said: "The stubborn fact that Hunt's machine would not work, and that Howe's would, made the oaths of the witnesses as inoperative as the machine."
This result agrees with the conclusions drawn from Drawbaugh's history as discovered from his own deposition. His story, as he proffers it, is or admirable speaking telephones in 1867 or 1868, and nine years subsequent devotion to them, with no thought of anything else. His witnesses, as a class, swear to that. The fact turns out to be that his present so-called "reproductions" of what he says were his instruments show that if he had them he never could have got any even seriously encouraging results. The exhibits themselves, by their rudencess and fewness, show that he never got anything with them whatever which encouraged him to remake them in better form, as so skilful a workman would have done; while the history of his life, shown by his cross-examination, discloses that the years in question were chiefly occupied with experimental work of a totally different character, such as the construction of electric clocks and a large number of other contrivances. It shows that this other experimental work, which his witnesses do not remember, but which he narrated on cross-examination and which is abundantly proved, occupied necessarily so much of his time and attention as to totally disprove his carefully sworn story of absorption in the telephone. The appearance, therefore, of the exhibits themselves, the performance of his so-called "reproductions," and the proved and admitted occupations of his life, not only disprove the existence of successful telephones at his shop, but they absolutely destroy the picture of his life and work which he and his witnesses have sworn to, and therefore show them unworthy of credit. The truth is that they have now transferred to the telephone their memory of work which was really on these other contrivances.
The opinion filed by Judge Wallace in December, 1884, insisted very much upon the total failure of these New York tests. All the Drawbaugh testimony was also part of the record in the "Overland" case, and as that case did not come up for argument until a year later, Drawbaugh employed the interval in taking more testimony to rehabilitate his story. During that time he made great efforts to construct some more so-called "reproductions," and to find out some way to make them talk. A new set of instruments were offered as new "reproductions"; the expert who had made the former tests was discarded; a new one, entirely ignorant of the case, was employed; and with these new so-called "reproductions" the new expert had not the slightest trouble at Philadelphia, in February, 1885, in transmitting whole newspaper paragraphs without losing a word.
No attempt whatever was made in the testimony to explain why his "reproductions" tried in New York in 1882 were total failures, and his so-called "reproductions" tried at Philadelphia in 1885 were perfect successes. Drawbaugh did not himself go on the witness stand after his first deposition in Junuary, 1882, nor permit his former expert to: nor did he attempt to explain how it was possible that his instruments of 1867-8 could have talked as perfectly as those of 1885, and yet never led to any practical use or to a patent.
This second test at Philadelphia was simply a piece of fraud. His original story was that the electrical part of his tumbler instrument F consisted of a cell or box, E, G, d, (sufficiently illustrated by C d C in the illustrative diagram,) not far from the size of a half-dollar, holding carbon powder, (d in the tumbler, P in the illustrative diagram,) with a plate or plunger of metal E resting on the carbon, and connected by a rod e with the centre of a diaphragm. The theory is that as the plunger vibrates up and down under the influence of sound waves applied to the diaphragm, it will compress the carbon powder more or less, and thus vary the electrical current which passes through the powder. It is essential for this operation that the bottom of the plunger should touch very lightly on the top of the carbon powder, but should never part contact from it for an instant. The fatal defect of such an arrangement (whenever Drawbugh made it) is that the up and down vibration of the plunger shakes and packs down the carbon, so that, if the touch be delicate enough at the outset, a number of vibrations less than those needed to make a single syllable (15 to 20) generally pushes away the powder, and the plunger parts contact with it at the top of the stroke, and articulation becomes impossible. This trouble was found in New York, and is practically inseparable from this contrivance, so arranged.
Some years after the Bell patent, Henry Hunnings, an English inventor, experimenting with the carbon powder telephones of Edison and others, found that if such a cell were tipped up so that it was perpendicular, as in this diagram, or at an angle say of 45 degrees, the action of gravity would make the powder, by its own weight, constantly keep against the vibrating plate or plunger, and there would be no break of contract. This effect would be aided by using powder which was granular and dry, like the sand in an hour-glass. If it becomes "packed" by accident, its proper condition is restored by tapping it. The Hunnings transmitter, so made, is one of the most powerful transmitters known. It is described in his patent No. 250,251, Nov. 29, 1881.
Drawbaugh made his tumbler talk at Philadelphia by puting the Hunnings invention inside of it.
His "reproduced F" is shown in the cut, with the cell horizontal, as it would be when the tumbler stood on its base. He testified in terms that he always so used it. That such was his chosen position for it is also shown by the fact that in the New York tests he so used it, placing it on a firm support where it could not receive the slightest jar.In the New York test the utmost care was taken to guard it from the slightest disturbance. To walk across the room threw it so out of condition that it would not yield a word, and Drawbaugh's expert declared that this test of it was "a constant struggle for adjustment."
But in Philadelphia the new "reproduced F" was held in the hand at an angle of 45 degrees. Not the least pains was taken to hold the instrument still. It was freely moved about, and the new expert, who had never read the testimony and was himself imposed upon, ingenuously said that its condition was improved by tapping it. The powder used at Philadelphia was granular, while that described by Drawbaugh and that used at New York (prepared by Drawbugh himself for that test) was fine and unctuous like flour. The Hunnings conditions of use were thus provided at Philadelphia. They were not present, in New York, where Drawbaugh had only his own knowledge to guide him.
The Hunnings arrangement requires obviously that the plunger E should fit tightly enough to prevent the powder from seriously shaking out when tipped up, while in the Drawbaugh form, held horizontally, no fit is needed. In the Philadelphia "reproduced F" of 1885 it did so fit. In the "reproduced F" of 1881 it did not. The original tumbler had no cell when produced, and the remains showed that the cell Drawbaugh described never could have formed part of it. But whether it did or not, the rude alleged original plates produced are so uneven and irregular in their contour that they would have let the powder escape in a few moments.
Our experts copied this Philadelphia tumbler, and found in repeated experiments that when held horizontal as Drawbaugh directed, hardly a word ever got through. When tipped as Hunnings directed, it talked well -- just as it did in the Philadelphia tests. This we proved; and they took no evidence to refute it.
The success of the new tests at Philadelphia, therefore, was due to the fact that Drawbaugh stole the Hunnings invention and put it inside his tumbler. Where did he learn it?
The New York tests of the Drawbaugh instruments were made in March, 1882. The vast significance of their failure was at once recognized, and was pointed out by our experts. The defendants took testimony for two years after that, but they never attempted any more tests, nor introduced any more testimony to establish the capacity of the so-called "reproductions." The proofs were closed in June, 1884. During the oral argument before Judge Wallace in October, 1884, and after our opening argument had exposed the proved incapacity of these instruments, they offered for the first time to bring into court and publicly try new "reproductions" and to show that they would talk perfectly well. That offer was refused on the ground that it was an attempt to introduce new evidence during the hearing. Afterwards, in the "Overland" case, at Philadelphia, in February, 1885, they did produce those new so-called "reproductions" and tested them. They talked as the defendants said they would, and we discovered that they had then in effect concealed the Hunnings invention inside their tumbler. We found out how it got there. The Hunnings invention belonged to the Bell company, and they had, in 1882, carried on a long series of experiments with it. After the time when Drawbaugh closed his testimony in June, 1884, not attempting to repeat his tests with his alleged "reproductions," and before the time when he offered new "reproductions" before Judge Wallace in October, 1884, and tried them in Philadelphia in February, 1885, he had hired from the Bell company's employ one of the men who had elaborately experimented with the Hunnings invention in the Bell company's laboratory. That person was proved to have been one of those who brought the new "reproduced" instruments to the new expert to try. On this testimony, at the second hearing in November, 1885, Judge Wallace, as matter of fact, found that the success of the second or Philadelphia tests had been obtained by concealing the Hunnings invention inside the Drawbaugh exhibit. This disposes of the character of the instrument and of the moral character of the case.
Drawbaugh cannot complain of the original reproductions. He testified that he made them himself in the summer of 1881, and that he and his experts tried them in December, 1881, before they were put in evidence. Then he put them in evidence, as part of his own deposition, and swore to them as true reproductions in January, 1882. The tests in New York were at the end of March, 1882, three months after they were put in evidence. Liberty was given to him on the record to repair any accidental injuries that they might have suffered; and he did so before the tests. He never during the subsequent two years of testimony complained that he could have made better "reproductions," nor did he offer to present new ones and try them until after he had hired from the Bell company's laboratory their workman who was familiar with the Hunnings invention.
Ear-marks of copying. -- Comparing the modern "Blake transmitter" with Drawbaugh's instrument H, alleged to have been made in the summer and fall of 1876, not only are the principles of the two identical, but the particular form and arrangements of the parts, even in immaterial matters, appear to be the same.But the most important feature in the Blake consisted in weighting a certain brass cup, carried on the end of a spring and holding a bit of carbon, bringing into play the element of a notable inertia.*fn1j The Drawbaugh instrument H had the same spring, with the same brass cup on the end of it,*fn2b and the same bit of carbon held in it in the same way; but while the two were thus the same, so far as the eye of an observer could notice, the fact was that the unseen weight inside the cup, which made the soul of the invention in the "Blake," did not exist in the Drawbaugh. It is a case of unintelligent copying by a man who did not even know what was the soul of the invention he now pretends he made.
Another important feature of the "Blake" consists in a spring which holds the diaphragm in place, for the purpose of getting rid of screw fastenings around the edge of the diaphragm, in order to leave it more free to vibrate. Drawbaugh has the iron framework to support the diaphragm, and the spring pressing on the latter, but has clamped the diaphragm at its edge, and thus the chief purpose and function for which the spring was introduced by Blake, is excluded by Drawbaugh, and the Drawbaugh instrument is just as good without it as with it; -- another feature which proves the whole instrument to be the result of unintelligent copying and piracy.
Drawbaugh's instrument H was not produced in evidence until 1881, two years and a half after the Blake instrument had gone into commercial use all over the country.
It is also a significant fact that the order alleged for Drawbaugh's exhibits is an epitome of the order in which the several inventions were published by others. Bell's first instrument was described in the papers as made of a tin can and bladder; such was Drawbaugh's B. His next was the large horse-shoe magnet instrument; such was Drawbaugh's C. Then Bell introduced the short core and coil, the metal diaphragm, and thin air spaces; Drawbaugh's D and E have these. The first public notice of a carbon battery transmitter described it as made with powder. Then Edison and Berliner used hard carbon contacts; then springs, &c., were added, until the Blake transmitter was reached. Drawbaugh's F, G, O, and H repeat this order. In short, all this psychological proof is that he copied, and the character of his deposition (p. 415, infra) singularly confirms this. Bare memories of dates must overcome all this to make a case for him.
Drawbaugh's own testimony is that while his tumbler F, and tin can B, were the first ones, he, within a few years after, replaced them by somewhat better instruments, C, I, and having made the better ones, the tumbler and tin can were thrown aside, their bladder diaphragms eaten off by mice and never restored; and that if he ever showed them to any one after that, it was as mere wrecks and curiosities, and not as working instruments. It could not have been otherwise if there be any truth in his story of progressive improvement. Now it is abundantly proved by a number of the best of his own witnesses that the tumbler and tin can were exhibited by him, in working order, and used, at his best instruments at a considerable time after the Bell patent. Such exhibition and use of them at that time, necessarily, and according to his own story, disproves the existence at that time of the far better instruments which according to his pretences then existed.
Drawbaugh's occupations and the history of his life. -- We have learned this from his cross-examination, from certain papers put in on his cross-examination, and from some record evidence. The story told in his answer and in his direct testimony is, that he made the invention and embodied it in a successful working form as early as 1867, (and large numbers of his witnesses alleged that it was looked upon as a great invention which would supersede the telegraph and make him the richest man in the country if he could complete it); but that it never got into use anywhere outside of his shop. The failure to get it into use, or to have it patented, or protected by caveat, is said to be solely because of his abject poverty and his "utter want" of proper tools and facilities for making telephones for use. He recognizes that the fact that the invention never went into use or was patented is fatal, unless explained, and he makes no other attempt to reconcile the fact and the story. The answer formulated that excuse, and he and others testified in support of it. His history destroys that pretence, and his whole story falls with it.
He has been all his life a professional inventor and patentee. He says that he has made over fifty inventions and patented a dozen. He never had any trouble in getting his neighbors to advance the money for experimental and Patent Office expenses. During the very years under inquiry, between the time when he alleges he first got speech in 1865 and the date of the Bell patent in 1876, he took out a number of patents, and his neighbors and friends contributed over $30,000 in actual money, chiefly to exploit certain of his inventions and to patent them, and in small part to exploit the inventions of others in his shop, under his direction.
In O'Reilly v. Morse, 15 How. 62, 111, this court said that no man could make an invention like the telegraph without an accurate knowledge of the scientific facts which were to be employed in it. That is still more true of the telephone. Yet Drawbaugh's story is that without education, indeed absolutely without that knowledge which is as necessary as tools and materials for the originator of these instruments, he made all the inventions embodied in the magneto telephone, in the carbon telephone, and in the microphone; that he made the discoveries of Helmholtz as to "quality" of sound, (though indeed his deposition shows that he has not the slightest knowledge on that subject,) and the discoveries of Faraday about magneto induction, as well as the invention of the speaking telephone itself.And yet when on the witness stand he is asked to state his knowledge of acoustics, all that he knows is that the pitch of a sound depends upon the number of vibrations. What constitutes "quality" or articulation, the very foundation of the speaking telephone, is something that he has not the remotest idea of. He further pretends to have made for himself, independently, some of the most striking inventions of modern times. He led his neighbors to believe that he invented Bain's electric clock, the automatic fire alarm, the Siemens and Halske magneto key, the Casali autograph telegraph, the Wheatstone alphabet telegraph, the Giffard injector, and other known things. In short, he pretends to be, and by these false pretences made his neighbors believe that he was, a genius far beyond any that the world has ever seen. All this was humbug and deception, and he knew it was.
Drawbaugh's deposition is a very extraordinary one. The invention he was to testify to is one which above all others never could have been arrived at by accident, but must have been the result of abstruse scientific reasoning and thought. Yet his deposition reads like that of a stranger. Instrument after instrument, already sworn to by others, (for he was the last witness called on their testimony in chief,) was put into his hand, and he was asked, generally by leading questions, when he made it. But from the beginning to the end of his deposition, which occupied thirty-two days, he never but once undertook to make any statement as to the origin or mental growth of his conception, or as to the principles involved. He was once asked how he came to employ the principle of variation of pressure in the carbon telephone, which he says was the first one he made, and he replied that he did not know whether he discovered that principle, or heard of it from some one else, or read of it. He testified: "I don't remember how I came to it; I had been experimenting in that direction; I don't remember of getting at it by accident, either -- I don't remember of reading it; I don't remember of any one telling me of it; I don't suppose any one told me." He could not tell how any idea came to him, and the moment he was pushed as to the origin of anything, he resorted to the stereotyped answer of Queen Caroline's valet, "I do not remember." An inventor who had made so absorbing and thoughtful an invention could not have left out the heart of his story if he had tried to.
Laying aside the speaking telephone in dispute, it is proved that every one of these old inventions which he made his neighbors believe originated with him, was well-known and published in the books years before he pretended to have touched them. He got his chief reputation in his county by producing an electric clock, about 1872-5, -- as if he were the first who had ever made one, -- for the men to whom he sold the clock invention testified that they so believed. Just such clocks had been known for twenty years, and we found in his possession, and made him produce on cross-examination, an encyclopaedia, published in 1852, with a full description of one, from which he had varied only in insignificant details of no importance. Upon the strength of these alleged inventions, he got his neighbors to advance their money to patent his clock, among other things. His whole life in his community was that of a charlatan and impostor, and be made all his neighbors believe that he was the first inventor of these various contrivances, as firmly as any of them pretend to believe that he was the first inventor of the telephone in dispute. So, when the present people, Chellis and others, asked him to let them set him up as a prior inventor of the telephone (for he never made such a claim for himself), their scheme did not startle him, for he did not realize how much more serious it was than the pretences which he had often put forward. So he became, at first a mere tool in their hands, and afterwards interested enough to work on his neighbors and talk up his case to make witnesses.
It is proved, chiefly by his own cross-examination and by some contemporaneous newspaper accounts of his work, that from 1865 to 1876 he spent more time and money on these various experimental gimcracks than would have been needed to have made a hundred telephones if he had known how to make them, or to patent them if he had had them to patent.Yet he swears that during all those years he could think of nothing but the telephone, and his compurgators all testify that they never saw him at work on anything else. The admitted facts show that that story is, on his part a fabrication, and on their part either a fabrication or the result of ignorance, stupidity, and forgetfulness, acted upon by his personal influence, village gossip, and local feeling. In Wood v. Cleveland Rolling Mills, 4 Fish. Pat. Cas, 550, Swayne, J., said: "The confidence of the attacking witnesses is often in proportion to the distances in time. Their imagination is wrought upon by the influences to which their minds are subjected, and beguiles their memory."
His only excuse for not patenting or making instruments is his "utter" want of tools and his "miserable proverty." This part of his story is a deliberate artifice. About 1865 he devised an alleged improvement in machinery for nail making. He had no trouble in getting partners to advance him money to experiment with it, and he took out two patents in 1865-7. His partners put in several thousand dollars. One of them was Governor Geary of Pennsylvania, and that partnership continued at least until Governor Geary died, in 1873. It is of course impossible that, with Governor Geary for a partner, this man could have had, for six years, within eight miles of the capital of Pennsylvania, practical speaking telephones which he was anxious to introduce to the world and to patent, and to do which he only wanted fifty dollars. Yet he does not pretend that he ever brought such an invention to Governor Geary's notice. If he had had them, the governor would have known of them, and the public history of the telephone would have then begun.
About 1865-6 he invented an improvement in molasses faucets and pumps. He had no trouble in getting his neighbors to raise over $20,000 in cash to enable him to experiment with that invention, to patent it (November, 1866), to fit up a machine shop to manufacture the articles, and to make him their master mechanic. That machine shop, stocked with from ten to fifteen thousand dollars' worth of tools and machinery, and run by water power, has been at his disposal, free of rent, for his own work, from 1867 to the present time.
It has been proved from his own deposition that during the ten years before the Bell patent he actually received in cash at different times more than $10,000, as his own money; yet the truth of his whole story rests on the assertion that he never could find fifty dollars to get a patent for the telephone, nor materials with which to make a few for sale. His partners in this faucet and pump company, which they afterwards (in 1869) turned into a regular corporation under the laws of Pennsylvania, with a capital of $20,000, and called the "Drawbaugh Manufacturing Company," not only made these faucets and pumps, but they made several other things that he had invented, and when they found that their work was slack they asked him to furnish any other inventions which he had, or to make some new ones, to enable them to employ their machinery and capital. They had a number of meetings for the purpose of examining into the various things he offered them, and after finding nothing which they thought worth taking up, they employed him to make some new inventions for that purpose. This appears from the corporation records, and his own proofs. This partnership and corporation lasted six years, until July, 1873. It is a part of his story that during all this time he had practical talking machines; that he believed the invention to be the most important of his generation and full of profit for its maker; that all he wanted was fifty dollars to patent it. Yet it is a proved and conceded fact that during all that time he never asked his company nor a single one of his partners to invest any money in the alleged telephone. He never showed it to any one of them, and not one of his partners during all those years ever heard of such an instrument. With the exception of a possible suggestion about some kind of undefined knowledge in one of them who is dead, it is not pretended that any of them even heard of it. More than half of them have been on the witness stand and have so testified, and the fact that Drawbaugh under these circumstances did not call the others, his friends and neighbors, is conclusive against him. He does not name them when asked to specify the persons to whom he applied for aid, and he does not testify that he ever showed it to any of them. The same is essentially true of all the workmen. Out of eighteen or twenty employed there he has found one or two who say they think they saw a broken tumbler on the bench in his shop while they worked there, but never tried it; and that is all.
The fact that an invention of so startling a nature, which according to his story he described and showed freely to every one and made the chief work of his life, never was known to a single one of his partners, and, without any pretence of exception except such as is found in the memories of one or two men, was never known to any of his fellow-workmen, working in the shop where he pretends he always kept and tried it, is absolutely conclusive against his story. In the case of his partners it is not merely a question of memory. They were men of means, -- the poorest of them worth about $30,000, and the richest about $90,000. They were old personal friends of his, with sufficient confidence in him to embark their money on his inventive skill, and to ask him for more inventions when they had exploited those he had. It is impossible that he could have had this invention without their knowing it, and it is impossible that they could have known it and the invention remained unpatented and unused.
In 1873 to 1876 he was particularly experimenting with a telegraphic key, of a kind which he pretended was new, but which had in fact been known for a dozen years. He made two of them, costing him more labor and trouble than a dozen copies of his telephone would have cost him if he had had any to copy. He carried these telegraph keys to a telegraph office and got leave to try them, and carried one to Harrisburg and publicly exhibited it, and called in two of his personal friends -- the telegraph superintendents of the Pennsylvania and the Northern Central Railroads -- to see it, at a time when he says he had perfect speaking telephones and was anxious to try them on an actual line. Yet, with this opportunity, he confesses that he never exhibited his telephones nor sought to try them outside his shop, nor informed those to whom he showed his telegraph key that he had such a thing as a telephone.
The pump and faucet business of his company was bought out in the summer of 1873 by Hauck Bros. & Co., and David Hauck, an extremely clever master mechanic, carried on that business during parts of the next two years in Drawbaugh's shop, working generally in the same room with Drawbaugh. In the summer of 1879 Drawbaugh and this David Hauck got into an interference in the Patent Office, on the subject of another improvement in molasses faucets. They took testimony, Drawbaugh's financial backer (Mr. Chellis) and counsel (Mr. Jacobs) being one of his present backers and one of his present counsel. They conceived that it would be desirable to prove in that interference that Drawbaugh was a man intellectually capable of making an invention. So they asked David Hauck and his brother whether, while they worked in Drawbaugh's shop, Drawbaugh was not very friendly with them and very free in telling them about all his inventions; they replied that he was. They then asked David Hauck -- these were Drawbaugh's own statements put into the form of questions by his counsel -- whether Drawbaugh was not a great inventor, and David Hauck answered that according to his knowledge of Drawbaugh he was a copyist and an improver of details, but not a man who either originated anything or who carried any invention to successful completion.Nettled by this answer, Drawbaugh then interrogated Hauck seriatim, -- Did not Drawbaugh invent the electric clock? &c., &c., naming a number of other things, to each of which Hauck replied that those were old inventions, and all that Drawbaugh did was to modify the details. Yet during this long examination they never once put to Hauck the question, which would have been decisive if they could have put it, -- Did he not know that in 1873 and 1874 and 1875, when he worked in Drawbaugh's shop, Drawbaugh had electric speaking telephones which could be readily talked through? No speaking telephone was alluded to in the list of inventions that Drawbaugh then recited in his questions to Hauck. Yet this man worked during the three years before the Bell patent in the very room where Drawbaugh says he showed his telephones freely to every one; and Drawbaugh began by proving that he freely showed all his inventions to Hauck. This interrogation was in May, 1879.
When Drawbaugh himself testified a few weeks later, Hauck's counsel asked him in substance whether he was not a man who simply picked up and attempted to improve other men's ideas, but carried nothing to completion, and then pushed him to name everything he had ever done which resulted in any successful invention. Drawbaugh enumerated a number of things, but did not name the telephone. The same questions were put to Drawbaugh's brother, who is one of the principal witnesses on his behalf in this case; and he, in like manner, enumerating those things which he thought would conduce to his brother's glory, did not mention the telephone.
Here, then, we have Drawbaugh's solemn written statements, the year before this controversy began, as to the inventions on which he wishes his fame to rest. He made them, both in his questions to Hauck and in his own answers, and for the avowed purpose of making the best show he could. The telephone is not in his list.
There is also other contemporaneous written evidence of the same kind. In the summer of 1874, and again in the summer of 1876, he published an advertising card, the two sides of which are as follows:
That was not a list of things "patented," because half of them were not then and never have been patented. It was not a list of things that he was making for sale, because he was not making more than two or three of them for sale, and all the patents that he had taken out were sold. It was not even a list of inventions he had completed, for his clock was then in an inchoate state; he had one experimental working clock model; but his first finished clock was made in 1877. It was a list of the devices and inventions, complete or incomplete, on which he chose, in the summer of 1874 and the summer of 1876, to rest his claim to be an "inventor." He printed and distributed three hundred of these cards. There is no speaking telephone in that list. And yet, according to his story, he then had in his shop telephones perfectly fit for sale, and as highly refined and as perfect as those now in use, made no secret of them but publicly showed them, and believed them to be the most important invention of his time.
That card has another unpleasant effect on Drawbaugh. In the faucet interference testimony in 1879 he had qualified himself as an expert to testify upon a technical question. In order to so qualify himself he swore that he had acted as solicitor of patents for others and for himself, preparing specifications and claims for the Patent Office. In a printed billhead, printed for him between June, 1874, and the fall of 1876, he advertised himself as follows:
"Bought of Dan. Drawbaugh, Practical Machinist. Small Machinery, Patent Office Models, Electric Machines &c. a specialty."
A man believing himself so qualified as solicitor and model maker could not have had the speaking telephone for ten years in his shop, without at least filing a caveat on it or making a few for sale. Yet the answer said that he was absolutely unable to do even that, -- and he must swear that he was. So, on his direct examination in this case, he testified that he was not a patent solicitor, and that he always knew that he was quite incapable of drawing a specification, though he admitted that he had done so in some cases. Afterwards, we found this card, by which he advertised himself as such. We introduced it by the deposition of the printer, one of his personal friends and witnesses. Drawbaugh never dared to go on the witness stand again, and no attempt was made to explain it by any witness. His whole testimony on that behalf, like the testimony about his poverty, was designedly introduced to meet what he knew was the turning point of his case.
An important part of this and other evidence -- the production by him of a copy of the Patent Office rules, &c., was the proof it afforded of his familiarity with patents; -- that he was familiar with the road to the Patent Office, and know the importance of going there.
Between 1872 and 1876, two of his friends in Harrisburg were Mr. Kiefer, superintendent at Harrisburg of the telegraphs of the Pennsylvania Railroad, and Mr. Simon Cameron Wilson, then superintendent of the telegraphs of the Northern Central Railroad, and, at the time this case was tried, mayor of Harrisburg. mr. Kiefer was also a member of a large electrical manufacturing firm -- Hahl, Kiefer & Co. makers, among other things, of the signal service instruments for the Government. Drawbaugh during these years was in the habit of going to these two telegraph superintendents, obtaining small supplies of cast-off magnets, battery-plates, &c., from their condemned instruments, talking with them about has electrical experiments, and carrying to Harrisburg various electrical contrivances, such as his clock and his telegraph key, to show them. They were man who would have instantly taken his telephone and tried it if he had had any, and Mr. Kiefer testifies that he would have liked nothing better than to have patented and manufactured such things at his firm's factory. Yet during all those years Drawbaugh never showed them a telephone, and never hinted that he had ever thought of such a thing. These two gentlemen so testify in terms. Drawbaugh does not deny it. When asked to whom he applied for assistance about his telephone, he does not name them. This proof, again, does not rest on memory.If in 1873 or 1874 he had carried a speaking telephone to one of those men, the public history of the art would have begun that day, and not waited until Mr. Bell's appearance in 1876.
Another of his intimate friends was Mr. Theophilus Weaver, a patent solicitor of Harrisburg, himself an inventor. It is in evidence, and not contradicted, that Drawbaugh was in the habit of going to him from 1869 onward; that they had some business together; that some clients of Mr. Weaver's carried on business at Drawbaugh's shop, with Drawbaugh as superintendent, in 1875-6, and that Weaver had been there a number of times from 1867 to 1876. Yet Weaver testifies, without contradiction, that Drawbaugh, not pretending to be only too anxious to get his telephone patented, never spoke of the subject to Weaver, and Weaver never heard that Drawbaugh had a telephone until 1878, when Bell's telephones were in extensive commercial use and were in actual use in Harrisburg. Drawbaugh then said to Weaver, in May, 1878, that he had turned his attention somewhat to the subject a good many years back, but never got any results, and did not expect speech, but only musical tones, and had nothing to show for what he had done. These facts do not rest merely on Weaver's memory, though Drawbaugh does not contradict him. If Weaver, a patent solicitor, had known of a telephone in 1873, it would have been instantly patented.
Drawbaugh's relations in the community were such that if he had had a speaking telephone it would have been mentioned in the newspapers. He was known as an ingenious inventor of small things, and in that community attracted attention. He exhibited at the state fair in 1868 and 1869, and his exhibition (nail machinery and pumps) was mentioned in the newspapers. His witness Holsinger, at one time editor of a country newspaper, who says that in 1873-4-5-6 he was Drawbaugh's most intimate friend, next door neighbor and co-experimenter with the telephone, wrote some newspaper articles about Drawbaugh's inventions in 1875, and again in 1876. He mentioned his clock and praised it, and said that Drawbaugh was going to make one to exhibit at the Centennial; but never wrote a word about a telephone. It is proved by that article and otherwise, that Drawbaugh did contemplate exhibiting at the Centennial, but that what he proposed to do was to build an electric clock for that purpose; although he wants the court to believe that he then had in his shop speaking telephones as good as those now in use, and that he made no secret of them and was anxious to attract public attention to them.
In 1878 he was visited by a number of newspaper writers, attracted by his electric clock, which during that spring was publicly exhibited for money in Harrisburg and some other towns. In that spring he became spoken of as a person connected with telephones; but in this way: Several paragraphs appeared saying that he was "then" inventing improvements in telephones, but not one of them attributed to him the original invention. It is not possible that the local newspaper writers could have visited him and got any inkling from him that he was the originator of that wonderful instrument without spreading his story at full length instantly in the papers.
Among other visitors, Mr. Matthews, an editor of the Baltimore American, went to his shop in April, 1878, to see his clock, and while there talked to him about the telephone, which was then attracting great attention. Drawbaugh's statement to Mr. Matthews was that he had experimented somewhat upon a telephone many years before Bell or Edison, but that he never got speech and never expected to; that his aim was to send telegraph messages by variations of tone and pitch. Mr. Matthews published this in his newspaper in 1878, and sent a copy to Drawbaugh, who never repudiated it. Mr. Matthews came upon the witness stand and repeated under oath his account of the visit. The article, after describing the clock at considerable length, and in a very laudatory manner, said of Drawbaugh's attempts about a telephone: "He never expected to send articulate sounds over a magnetized wire, but he believed that an alphabet could be arranged after the manner of a musical scale, and that messages could be transmitted and understood by the variations of tone and pitch."
That such was Drawbaugh's purpose is curiously confirmed. It is proved as matter of fact in these cases that between 1860 and 1870 many persons were trying to construct telegraphs whcih should send ordinary telegraph messages by variations of tone and pitch, and that Drawbaugh know of these attempts and was much interested in them. One of the most ingenious and extraordinary of these "phonic telegraphs," as they were often called, was described in the Scientific American in 1863. Drawbaugh got that paper, studied that description, thought a great deal of it, remembered it and some others on the witness stand, and finally produced the paper, which he had kept.
In the same spring as Mr. Matthews' visit -- 1878 -- a friend of his, Mr. Stees, a manufacturer at Harrisburg, now dead, took him to the telephone office in Harrisburg, introduced him, and said to the telephone people there that Drawbaugh was then engaged in making a telephone which he thought would be better than theirs, but never hinted that Drawbaugh was the originator of that great invention. Mr. Stees for many years had a private telegraph line connecting his office with one of his machine shops. He found such difficulty in working Morse instruments that he was the first man in Harrisburg to put in the Bell telephone, in March, 1878. Drawbaugh and he were intimate friends, and they had been partners in a little invention of Drawbaugh's ten or fifteen years before. Yet Drawbaugh does not pretend that he ever showed his telephones to Stees, or asked to try them on a line, or asked any aid from Stees until after Stees had the Bell telephone in use in 1878.
Drawbaugh called again at the telephone office a few days later (May, 1878), examined the instrument the telephone company then had in use, known as the "Phelps Snuff Box," drew from his pocket his own instrument, A, and compared the two, asked if the Phelps was patented, and on being told that it was, said that his was too much like it, -- without a hint that his was, as he now claims, four years old. Certainly their resemblance is wonderful. His story is that at that time he had had H (the Blake transmitter) for eighteen months, -- an instrument far superior to anything then known in the country. Yet he never gave a hint of it. He borrowed a magneto telephone of an ingenious but rather inferior kind from the telephone company (the Phelps "Crown"), with curled magnets, and took it to his shop to study it and learn how it was made. He kept it several weeks. Yet, if his story be true, he had had for two years almost exactly that instrument (in L and M, the magnets of which were bent), and during all that time he also, according to his story, had telephones -- the Blake transmitter H, and other microphones -- which were so far ahead of it that it would have been thrown away the moment such instruments appeared.
In the fall of 1878, a history of Cumberland County, where he lived, was published. He subscribed $10 to it on condition that they would publish a biography of himself. He furnished the biography, and it was published essentially as he sent it. In it he enumerates a number of his inventions, and at the end of his enumeration, nowhere stating himself to be the originator of the telephone, he says that he has invented "several kinds" of telephones. Improvers are so spoken of; the originator never could so speak of himself. This vain-glorious autobiographist could not have failed to claim for himself what in 1878 was recognized as the greatest invention of our generation, if he had made it. This article was so printed, the book taken to him, this shown to him, and he, acquiescing in its correctness, paid his subscription.
These newspaper accounts -- and there are a number of them in the first half of 1878 -- speak of him repeatedly as then engaged in improving the telephone. That is a fact which his story must square with. Stees so informed the telephone company, in Drawbaugh's presence, in 1878. Yet, if the story of his deposition be true, he had at least a year before that completed the best telephones he ever made, and never, since the spring of 1877 down to the time when this suit began, constructed anything which was, or which according to his own account he thought was, an improvement on his alleged old ones of 1876.
The truth is that he made his telephones after the Bell patent came out. He at first copied what he had seen described in the Scientific American in September, 1876, as Bell's tin can instrument. It is in proof that he exhibited this to a number of persons in the fall of 1876 as the best thing he had. In the beginning of 1878, when telephones were attracting a great deal of attention in the community, and the microphone had become known but was not perfected enough for commercial use, he, like many others, seriously went to work to try and make modifications and improvements. That was his real work on the telephone, and we believe it was then that he did it, and made his first attempt at a carbon telephone. The contemporaneous newspapers and Stees' statement prove this part of his history.
Lloyd and Worley, two school teachers of Harrisburg, had long known him well, but had heard nothing about telephones. At the beginning of February, 1878, they went to see his clock, and presently published a very laudatory newspaper article about it. He told them that he had made telephones (not pretending that he had made them before Bell), but that the articulation was bad, and be was trying to improve it by giving a confined shape to the sound chamber. Plainly, he was then making D and E, his first telephones with the thin air chamber and other refinements which Bell patented and put into commercial use in 1877; for Drawbaugh never made any change in the sound chamber after D and E.
The mere fact, conclusively established, that at that time he was making improvements, is absolutely inconsistent with the story of himself and his witnesses that his most improved telephones were made some years before. On the other hand, it perfectly fits in with the fact that his work before that was in experiments on other contrivances, that no telephone was known to David Hauck or any of his partners, that no telephone was found in his advertising cards of 1874 and 1876, and that no telephones were shown to the telegraph superintendents Kiefer and Wilson.
His shop was full of electrical contrivances for many years. He undoubtedly had there as early as 1872 or 1873 string telephones. He has there in 1872 or 1873 modified telegraph instruments, such as the magneto key, and that alphabet instrument whcih would spell out words, and which he said were to supersede the existing telegraph instruments. His witnesses, many of them of exceptional stupidity, who undoubtedly saw electric speaking telephones at his shop in 1876-8, have mixed these things together, and, aided by their desire to help a friend, by his subtle insinuations of ideas into their heads, and by the gossip of the village grocery and cobbler's shop during the preparation of this case, have come to a condition of mind where they attribute to one time what they saw at another, in a shop full of contrivances all equally wonderful, and all equally incomprehensible to them.
Drawbaugh's witnesses and their value. -- His case rests purely on oral recollections. Its whole strength lies in the fact that he has fifty-one such witnesses who testify that before the Bell patent they heard speech at his shop, through what they say they understood were electric speaking telephones.
Two questions lie at the foundation of this case. One is, what is the value of the mere oral recollections of the interested parties and their friends, of such a class, against the history of this man's life? and another is, what is the relative strength of the purely oral testimony on the two sides? for on Drawbaugh's side there is nothing else. We believe that the answer to each of these questions is against him.
When we first heard of the Drawbaugh claim and began to study the subject on the spot, we found that fair inquiry was impossible. The country people saw on one side a corporation of strangers; on the other, a neighbor whose success was a matter of local pride, and promised to bring into that little community, and into the pockets of an open-handed man, more money than the villagers had ever dreamed of. More potent than all was the intense local feeling of a narrow and rural community which made every member of it a partisan of one side and an enemy of the other. But this was not all. The Drawbaugh Company had diligently cultivated the ground, and had taken seventy-five ex parte affidavits, but not for use in any proceedings. They were simply anchors planted around to hold that community. The great case was the theme of gossip in the country grocery and cross-roads shoeshop, till the most ignorant were ashamed not to remember, and vied with each other in their stories. So we found, during the four years of taking testimony, that witnesses who remembered nothing in the first year, swore the most glibly for him in the last.
At the outset, we had to consider what classes of persons would be the crucial witnesses in such a case. The claimant had had nine partners and twenty-five workmen during the time in question. He had a number of close and intimate friends, near neighbors, men of substantial means, disposed to invest money in his inventions. He was in the habit of going to the two telegraph superintendents and other skilled and intelligent persons in Harrisburg and Mechanicsburg, and showing them his inventions. If his story be true, it is absolutely certain that to all those men the telephone would have been like a household word, and they would have been continually solicited to aid him in patenting, &c., if aid was needed, -- for he was a professional inventor and patentee and says he always wanted to patent this invention. If the fact were clearly established that those men did not know of the invention, it would be certain that it did not exist. With that fact once established, the dim and strained recollections of the small farmers and farm laborers, testifying about an instrument they neither understood nor took interest in, their minds confused by the large number of contrivances they saw in his shop and the number of times they saw them, are of no value upon the question whether one particular unknown thing they saw was a speaking telephone, or at what period of their constant visits they saw it.
In this inquiry we were thoroughly successful. Indeed, the history of the case did not leave it in doubt; for most of these men were in such circumstances and of such disposition, shown by the aid they gave him about other inventions, that if they had known of a speaking telephone at his shop, the public history of the art would have begun at that instant. But the proof is even more specific. Drawbaugh's cross-examination and some other undisputed proofs developed the names of about seventy-five persons so situated. He was repeatedly asked whom he had applied to for aid, and what exhibitions of his instruments he had made; and no one of these men were named by him. Out of all these seventy-five men, only two or three (they were workmen employed about 1870) were called by the defendants to even pretend to any recollection about his instruments. Others were put on the stand for collateral matters, but not asked about telephones. Then we went to them, found in almost every case (including the case of the two telegraph superintendents) that Drawbaugh had applied to them before we had, and they had no recollection of any such machine until after the summer of 1876. We called a substantial number of them -- enough to establish the proposition. That, under these circumstances, Drawbaugh, on whom the burden lay, and whose friends they were, did not call the others, is conclusive.
Against these stubborn facts the Drawbaugh party labored for four years, and called 400 witnesses, mostly for collateral and remote matters, but the crucial witnesses did not come. With all this scouring of the country, they could find only fifty-one persons who would pretend to fancy that they had heard speech during the ten years with anything which they could suppose to be the telephones he described -- five a year -- a number absurdly below what the story, if true, would have furnished. But hardly one of these was above the grade of a common farm laborer.
It is only the mere residuum of such conflicting oral testimony, if there be any residuum, which is to be set against the facts of his history, against his advertising card, against his own deposition and his questions to Hauck in the interference testimony in the summer of 1879, against the fact that all his partners and friends who would have advanced money for the telephone, if he had one, never heard of it, against the fact that with one or possibly two exceptions no man of intelligence even pretends to have heard speech before the Bell patent. Besides that, an examination of the depositions themselves shows that they are thoroughly worthless, and that plainly a considerable number of them are the result of deliberate contrivance and conspiracy on Drawbaugh's part.
We begin with the fact that of these fifty-one witnesses more than half swear to thoroughly good speech through the tumbler F and tin can B. We know now from the New York tests that that is absolutely impossible. Several other witnesses swear that with a pair of magneto telephones, and several others swear that with instruments they cannot identify or describe, they heard perfectly good speech when the receiver was lying on the table, and they were several feet distant from it; or that they heard perfectly good speech without any trouble in the midst of the noise of the machinery of the shop.The best magneto telephones to-day, or the best instruments Drawbaugh pretends he had, cannot do anything of the sort.It is absolutely impossible. Moreover, the picture they give of his for the ten years before the Bell patent -- his "abject" poverty, his exclusive devotion to the telephone, that he worked on nothing else -- we know is false. All this destroys an argument which rests on the assumption that what a large number of such witnesses say must be true. We know that what more than half of them swore to specifically about the telephone is false, and that their whole picture of his life gives nothing but false color. The circuit judge found that they were ignorant men who had been practised upon by Drawbaugh and first made to believe his story, and afterwards produced to swear to it. He declined to substitute their credulity for his own judgment.
Some specific instances are very instructive.
Henry Bayler, who appears on the surface to be one of the best half dozen of their witnesses, was one of the proprietors of a neighboring saw-mill and planing-mill from the spring of 1873 until the summer of 1877. He and Drawbaugh had dealings together, and Drawbaugh did repairs at the mill. Bayler says that at some time he went to Drawbaugh's shop and heard perfectly good speech through the tumbler F and tin can B. We know that is impossible. He says that it was when Drawbaugh was first repairing his saw-mill engine, which was fixed to be in June, 1873. His association of dates is hardly more than arbitrary; and if the occurrence, whatever it was, was not then, there is no way of fixing it any time short of the summer of 1877, when Bayler moved away. It certainly was not during the year named nor during the next year. For the partitions in the upper story of Drawbaugh's shop, where he says his telephones were usually kept and used, were changed from time to time, and we know from Drawbaugh's own testimony and the testimony of the different partnerships which occupied that shop and paid for the changes in the partitions, just when each change took place. Bayler testifies to the situation of the rooms, and exactly in which room each instrument was placed, and where the wires ran. The partitions and rooms which he so swears to as the place where he witnessed the tests of the instrument F and B, did not exist until 1875, two years after the time when he says he saw the instruments; they remained in that condition until 1878.
Bayler was also called to testify to Drawbaugh's extreme poverty. He puts his visit as at the end of June, 1873. He says that Drawbaugh importuned him to advance a little money to take a patent, and said that it was absolutely impossible for him to find any, and that if he could find money enough for a patent, his fortune would be made. He professes to have known that Drawbaugh was abjectly poor at that time. The truth is, as is shown by the books of the faucet company, produced by Drawbaugh, that at that time the company had just sold all its property for cash, and within two weeks from that time Drawbaugh received from that sale a dividend of $450 in actual cash, (July 15, 1873,) and had so little pressing call for the money that he used $300 of it to pay off the last instalment of the bottom mortgage on his own house; for he owned a double house at that time, and had for six years, with an old incumbrance of $300 on it. He lived in one half of this house, and rented the other half for $110 a year to a good paying tenant.
Bayler says that Drawbaugh's poverty was such that when he made repairs at the saw-mill he always required to be paid in cash at once; and that when he bought lumber from the saw-mill he always insisted that it should stand on credit; and when they settled their account finally he owed the saw-mill about $70, which they had to sue for and establish a lien for, in order to collect. Drawbaugh put Bayler on the stand to swear to that story. Yet the truth is that the saw-mill people never paid Drawbaugh a dollar of cash; that he got lumber from time to time only against his credit for work already done; that there never was a time during all these years when the saw-mill people did not owe him on settlement of account from $30 to $60, which he could have had by asking for it; and that at the very time alleged for this visit they owed him $50, sufficient to take out a patent, and he never asked them for it. These facts we afterwards proved by the production of Drawbaugh's accounts in his own handwriting, and by the saw-mill people's books, and they were not disputed. Moreover, the settlement of account had involved a suit between Drawbaugh and the saw-mill people, and in that suit Drawbaugh filed his own affidavit, stating this condition of the accounts, and showing that the last lumber he took from them ($70, in 1877) was intended to balance this account, and if it overran it, it was only about $10 or $15, which he was ready to pay. This affidavit, which we put into the case, was sworn to by Drawbaugh only fifteen months before he put Bayler on the stand to testify to the story which he knew was false.
Jacob Reneker says that at one time Drawbaugh was so poor that he sold to Reneker a part of his household furniture -- a secretary and bedstead -- to pay for provisions for his family. Drawbaugh on the witness stand repeats this story very pathetically. The fact is that at the time in question Drawbaugh was moving from one house to another: his household effects made eighteen horse-loads; he had more furniture than his family needed or than his new house could hold; among other things he had two secretaries (he had made one himself, and had afterwards bought a better one), and, in moving, he sent his old secretary and some bedsteads to his workshop as superfluities, varnished them up, and sold them to Reneker.
Urias R. Nichols testified that he had been in the signal service and assistant keeper of a lighthouse, and appeared to be an intelligent witness. He said that he went to Drawbaugh's shop and saw the tumbler F, and tin can B, and the wooden instrument A; that Drawbaugh said the wooden instrument was about two months old, and the tumbler and can three or four years old; and they talked through them. He testified that this was in January, 1875, and he fixed the date by saying that on the day of this his only visit to Drawbaugh's shop he bought some lime at a particular lime-kiln which he specified, and that a memorandum, which he said he had at home but forgot to bring and never produced, stated that the lime was delivered January 18, 1875. On crossexamination, he said that he went to the shop particularly to see Drawbaugh's electric clock, in consequence of having read an account of it in a newspaper, which he repeated. We found the newspaper with that account in it, and instead of being January, 1875, it was February, 1878, two years after the Bell patent. We produced the man who kept the limekiln up to April, 1876, the time of the Bell patent, with his books, and he proved that Nichols never bought any lime of him. Nichols testified on cross-examination that during the same season as this visit to Drawbaugh's shop he stated the occurrence to Colonel Maish, a lawyer in York, and a member of Congress. Colonel Maish, called as a witness by us, remembered the statement perfectly well, and knew Drawbaugh as one of his constituents; but he also remembered that when Nichols told him of it, the telephone was not new to him, because he had talked through a Bell telephone in Washington. The telephone he talked through we proved was put up by one of Mr. Bell's agents in the fall of 1877. Nichols never came back to explain his story, and there was no attempt to reinstate it. Yet he appeared to be one of their best witnesses.
But what becomes of Drawbaugh who puts a witness on the stand to detail an interview between them and to swear that at the time of the visit the telephone A was two months old, and that the first telephone with the tumbler and tin can was then a few years old, when it turns out that this visit was two years after the Bell patent? Either the whole occurrence is concocted, or it is fatal to his dates.
Samuel Nichols, another witness, says that he went to Drawbaugh's shop, listened to the tumbler and tin can, and heard two words, and his "son-in-law Bruce" was with him, and also heard two or three words. He thought the visit was in 1869. It turned out that Bruce did not become his son-in-law until June, 1876, four months after the Bell patent, and did not become acquainted with his family until after Bruce's first wife had died in 1875. Nichols' son, Edward Nichols, worked in Drawbaugh's shop in 1874 and swears that he never heard anything about telephones. Drawbaugh, who saw him before we did, tried to make him think he remembered them, but in vain.
Henry B. Musser, a farmer, went to Drawbaugh's shop several times to have his mowing machine repaired, between 1874 and 1878, inclusive, but each year in June, the mowing season. He fixes the dates of each of those visits by payments entered in his farm books. He says he saw the tumbler and tin can and once talked through them, and his recollection is that this was at his first visit, in June, 1874. On the witness stand he made a diagram of the arrangement of the rooms where the tumbler and tin can were at the only visit when he tried them, and where the wires ran; the partitions he so described did not exist until 1875 and remained until April, 1878. He undertook to describe the other things that he saw at the same time when he talked through the tumbler and tin can, and he testified to seeing at that time a number of electric clocks; in fact these did not exist before the summer of 1877.He has seen the later instruments there, but not in the same year when he tried F and B. This puts the tumbler and tin can as the best instruments after the Bell patent, and refutes the previous existence of better ones.
Several witnesses got into trouble in the same way by letting the fact be known that they saw at the same time the early telephones and some remarkable clocks which Drawbaugh admits did not exist until one or two years after the Bell patent.
Mrs. Darr testifies that she moved away from the village in 1870, and before she left she used to hear a great deal about Drawbaugh's telephones. That seemed to fix a date, but upon cross-examination she testified that at the same time, and while living there, she also heard a great deal about his electric clock, particularly about its being carried over to Harrisburg to be exhibited. That clock was not made until the fall of 1877, and was exhibited in Harrisburg in May, 1878.
%decker went there several times, and undertakes to fix one particular time, a year or two before the Bell patent, as the time when he particularly remembers hearing speech through the telephone. On direct examination he detailed the conversation between himself and Drawbaugh through the telephone; it was about the birth of the child of one of his neighbors. We called the neighbor, and his first child was born a year after the Bell patent.
George W. Drawbaugh, a nephew of Daniel, the claimant, said that he first knew of his uncle's speaking telephone at the time when he and his uncle, at his uncle's shop, were painting a certain wagon to be used by the firm of Drawbaugh Sadler, consisting of Daniel Drawbaugh, the claimant, and one Jacob Sadler, now dead. He does not exactly remember the date, but he got the lumber for the wagon from one Lee, and Lee's only charge against George Drawbaugh for lumber is in March, 1870. He then produced a witness Ditlow, who said that George Drawbaugh told him all about the exhibition at the time. Ditlow first testified as a witness for us that this was in 1877, a year after the Bell patent; but afterwards was prevailed upon by Drawbaugh to come back on the witness stand and swear that he did not well remember the date himself, but that in the spring of 1870 he went to the West to live (coming back generally for the winter), and told all this to people out there. A number of people from Indiana swore that he told it to them there in the spring of 1870, and could not have told it later because they knew him then and did not meet him afterwards. That story hung together extremely well, and seemed to fix 1870 as a date, until presently we got hold of the accounts of the firm of Drawbaugh & Sadler. That firm did not exist until 1871, and the wagon was not painted until 1871, so the whole labored chain of circumstances is pure delusion or fabrication.
These are only some out of a number of samples. More than a dozen out of his fifty speech-hearing witnesses were destroyed in this way. More than half are destroyed by the proved incapacity of F and B to talk. But it is not merely those specific witnesses who go by the board. These is no character left in a record of which they were the most important part. The court below found that his witnesses were mostly ignorant men whose memories were confused about what they saw or when they saw it, and whom Drawbaugh, with the aid of friendship and local feeling, had beguiled into believing untruths, and put them forward to swear to them.
The testimony furnishes some very curious proofs of this confusion of memories. We have already referred to the fact of a string telephon, in the village, at least. Other instances are more striking. Captain Moore, one of the most intelligent of his witnesses, carried on business at Drawbaugh's shop, with Drawbaugh for his superintendent, from March, 1875, to the fall of 1876. He never attempted to talk with any instrument, but saw some machines which he does not well remember, but thinks they were for speech. They had magnets, and were to be used without a battery; and he testified on direct examination that Drawbaugh said that they were to be used as a substitute for the fire-alarm telegraph. Now a speaking telephone could not well be so used. But Drawbaugh's magneto telegraph key, which he certainly had at that time, was intended by him for that use; he offered it for that purpose to the fire-alarm superintendent at Harrisburg, and his advertising cards of 1873-6 expressly stated its fitness for that purpose. N. W. Kahney testified that Drawbaugh told him that he had a Mechanicsburg man to go in with him on the telephone, and Shopp says that Drawbaugh was going to exhibit at the Centennial. We know from Drawbaugh that it was only his clock that any Mechanicsburg man thought of taking an interest in, and that it was only the clock that he thought of exhibiting at the Centennial. One of the most striking instruments produced was the tall H (the Blake transmitter), which most of the witnesses identify by the bell on top (only the lower edge of which is shown in the cut). We know as a matter of fact, from his own cross-examination, that he had in his shop from 1873, or thereabouts, to the present time, some alarm bells to be rung by electricity, for use in hotels. Shettle, one of his most conspicuous witnesses, swears that he saw in 1876 or 1877 an instrument which he recollects as H; that he recognizes it by the bell; that they did not talk through it; that Drawbaugh did not tell him it was a talking machine, but told him it was to be used for calling in hotels, and that all Drawbaugh did in showing it to the witness was to ring the bell.
We have already pointed out from Mr. Mattews' Baltimore American article, and Drawbaugh's preservation of the Scientific American article of 1863, his early attention to the "phonic telegraph." That was a plan of a machine which was to send words by sounds, and supersede the existing telegraph. With the class of men he called as witnesses, testifying in 1882-4 to ancient occurrences in a shop where they had seen telephones ever since 1876, and an abundance of electrical contrivance they did not understand before that, this was a sufficient basis for their confusion.
The absolute contrast and inconsistency between the story told by Drawbaugh and his witnesses and the actual facts of his life and his own repeated statements in writing before the controversy began, compel the conclusion reached by the Circuit Court that in its essential features, and the only feature which the law maker the turning point, to wit: on the question whether he had a practical speaking telephone before the Bell patent, the story is a fabrication, -- an intentional fabrication by Drawbaugh, supported by witnesses in part dishonest, in larger part misled by him. These witnesses as a class are shown to be unreliable. Against them, or such of them as do not destroy themselves or are not destroyed by others we have the fact, established beyond controversy, and chiefly out of his own mouth, the neither his partners, not the telegraph superintendents, nor his friend Weaver, the patent solicitor, nor his fellow-workman David Hauck, ever heard of the existence of such an instrument. Actual count shows on the one hand fifty-one witnesses who swear that they heard speech in the course of ten years, (mostly with F and B, proved to be incapable of speech,) and other witnesses who say they saw or heard of the instruments, but did not take interest enough to try them; and on the other hand seventy-five persons, intimate friends and intimates of his shop, who are proved, not by their own recollection alone, but by their history and conduct, and by Drawbaugh's testimony, to have had no knowledge of the existence of a telephone. These men are virtually his witnesses, for they are part of the class whom the law required him to call, and whose memory he in fact appealed to. The weight of the oral testimony, especially when judged by the rule laid down by Lord Mansfield, is on our side; but, in this conflict of testimony, the general history of the claimant, the confessed fact that this great invention never got into use by a single human being from his alleged work, coupled with his own history and his own declarations, with the proof of his habitual falsifications in the testimony, especially as to poverty, leave the case free from doubt. It would be enough that they left it in doubt, for the rule is settled that whoever atacks a long-established patent, as this man did for the first time in 1880, -- a patent for an invention so startling that the moment it existed in the most rudimentary form it arrested universal attention, -- and does that with the story that the invention in a perfected form in his hands never attracted attention enough to make anybody desire to use it, and who rests such a story on oral recollections of fact and of date, -- must make out a case free from doubt. To raise a doubt is to resolve it against the claimant, said Judges Strong and McKennan in Parham v. Button Hole Machine Co., 4 Fish. Pat. Cas. 468, 482. To the same effect are Wood v. Cleveland Rolling Mill Co., 4 Fish. Pat. Cas. 550; Thayer v. Hart, 20 Feb. Rep. 693; Washburn v. Gould, 3 Story, 122, 142; Coffin v. Ogden, 18 Wall. 120, 124; Cantrell v. Wallick, 117 U.S. 689, 696. The rule and a most substantial reason for it was well stated in Thayer v. Hart, 20 Fed. Rep. 693. "The evidence of prior invention is usually entirely within the control of the party asserting it; and so wide is the opportunity for deception, artifice or mistake, that the authorities are almost unanimous in holding that it must be established by proof, clear, positive and unequivocal."
Poverty is the only ground on which Drawbaugh attempted to reconcile the story alleged and the history proved. There is no suggestion in the record that the great gulf between his story and his life, -- between the alleged existence of the invention and the proof that no marks or fruits of it are found, -- can be bridged over by any lack of appreciation. On the contrary, it is a part of his story that he believed it to be of enormous importance and vast pecuniary value, and that for ten years he was so engrossed in it that he could think of nothing else. The answer says that nothing but his abject poverty prevented him from patenting it, and from manufacturing instruments for commercial use; that after he had first got good speech, he perceived that improvements would "increase its value to himself and the public," and therefore labored on it with great zeal and assiduity. He testifies that from 1867 for ten years he worked at it unceasingly, laying it aside only occasionally, and with reluctance, to earn bread for his family, whom he kept reduced (so he avers) to great poverty for this cause. The court below found that poverty was the only excuse offered, and that that excuse was false in fact.
He called forty witnesses (whose testimony to this point is collected in our brief) to swear that during the whole time he asserted the importance and the value of the invention. "He said it was the greatest invention ever known." "He said he could run it out for miles, and parties could talk the same as persons in a room together." It was "to supersede the telegraph." "My fortune lies in this." "He said it would be a fortune to him." "If I can accomplish it, it will be worth thousands to me." "Would be worth a great deal of money." "I have a talking machine that beats all the other of my inventions." "He said he could make a fortune out of it." "Would astonish the world." "If he would be able to get it accomplished, he would be a very rich man some day." "If he is successful in getting it finished, he will be the richest man in the valley." "It would surpass the telegraph." "When it was perfected, there would be no trouble to connect one point with another." "More wonderful and handier than the telegraph." "It will take the place of telegraphing, and be cheaper." "If he could get this accomplished, get it patented, he would be one of the richest men." "His whole heart and desire was on the telephone." They swore that they saw his shop usually lighted late at night, and always believed he was working on the talking machine, and that he habitually neglected his work to labor on the talking machine. "He appeared crazy on it. I often tried to get information from him on other subjects, and about half a minute's talk would turn him right on the talking machine -- that is about his standing -- the way he felt all the time I was there (1873-6)." Unfortunately for the credit of this witness (Holsinger), he, during that period, wrote two newspaper articles praising Drawbaugh's inventions. He described his clock, but did not mention the telephone among them.
His other occupations, his experiments on other and foolish contrivances, show this to be an absolutely false picture, and condemn all these witnesses. But the gossip, as they give it, during all the years down to a period as late as 1877, the year after the Bell patent, is that "if he gets it accomplished" he will be rich. Such gossip, whenever it was, together with the fact that he had sufficient means and tools, tells the history of a man who did not "accomplish." We believe, however, that these witnesses have entirely confused their memories of the many other things which he did before 1876 with the telephones which he made after 1876.
The burden is on him to show the truth of his history. Nor does the law find it essential to know just what he did, in order to decide against him. It puts one single inquiry: Did he have a practically successful speaking telephone before bell's invention? Because, if he did not have that, it is not important to know whether he had nothing, or whether he had something that fell short of that. Therefore, if his history and surrounding circumstances are inconsistent with that, his case is disposed of, and the law does not seek whether there was some insufficient foundation for a false claim.
The history of the alleged maker of so startling an invention is not evidence which simply bears upon the probability of a story which may be true. It is the strongest legal proof against it or for it, as the facts may be. In Atlantic Works v. Brady, 107 U.S. 192, 203, this court declared that where this proof was all one way, no judicial action could be based on mere recollections to the contrary. Ih the sewing machine case (Howe v. Underwood, 1 Fish. Pat. Cas. 160, 165), Judge Sprague rehearsed the proof from recollections, and then stated the proof from the undisputed facts of the man's interest.These are two lines of positive proof, said he, so inconsistent that one or the other must yield, and that statement of the question answered it.
The argument of the value of a cloud of witnesses, which is the whole reliance of the other said, is all against Drawbaugh.
It is a well recognized fact that the illusions of memory are more common than the omissions of memory. That the partners and others -- that these seventy-five men -- would have known of and used the telephone if it had publicly existed, is certain. That such a cloud of intimates could have known of it, and forgotten it, is impossible. But that an unobservant set of men who have always seen and heard of much at his shop they did not understand or take interest in, and had seen and heard of telephones at his shop for five or six years before they testified, should now think they remember what in fact they did not then, but have seen and heard much of since, and should confuse their memories as to the subject they did see, and the time when they saw it, is consonant to daily experience, and to the observations of writers on the subject. The courts know this. "The confidence of the attacking witnesses is often in proportion to the distance in time that the one is removed from the other. Their imagination is wrought upon by the influences to which their minds are subjected, and beguiles their memory." Swayne, J., in Wood v. Cleveland Rolling Mill Co., 4 Fish. Pat. Cas. 550. Of all causes for delusion in dates, none is so potent as the contrivance which Drawbaugh had generally induced his witnesses to resort to -- the arbitrary association, by mere memory, of events which have no necessary relation to each other; as the attempt to fix the date of a particular visit to the shop by pretending to remember that it was while the witness lived in one house rather than another, and then casting a glamor of authenticity over the whole by producing a dated deed of the house selected. See U.S. Stamping Co. v. Jewett, 18 Blatch. 469.
The magneto instruments D and E. -- Of all the instruments alleged to have been made before the Bell patent, the tests of the so-called reproductions show that none would physically suffice to overturn the patent except the magneto instruments D and E. The defence cannot be supported, therefore, except upon proof of the date of these two instruments. From the tests made at a comparatively early period in the case it was evident that it must turn on the dates of these. The defendants took four hundred depositions. Yet, out of this vast number, and from four years scouring of the whole country, they were able to find only seven men who even pretended to have heard a word through D and E before the Bell patent. The story is that these instruments existed a whole year before the Bell patent. Their perfection and clearness, in spite of some weakness, must have been such as to satisfy the most incredulous that when they were made the problem had been solved, and that whoever had them had instruments fit for commercial use. If they were made before telephones were in use in the world, they must have produced an enormous effect on Drawbaugh, on all his family and friends, and upon all of the many hundred people who are alleged to have known of his telephone. The fact that under these circumstances his utmost research can find only seven men who pretended to have got speech through them, is of itself decisive.These seven men, however, sift down upon the first critical examination of their testimony into almost nothing. They are as follows:
Decker swears that he heard speech through them in the fall of 1874. The claim made by Drawbaugh's counsel and sought to be supported by their proofs is that they first existed in the spring of 1875. Decker is the man who talked through a telephone about his neighbor's bady several years before it was born.
Jerry Fry was the storekeeper in the village from the spring of 1875 to the spring of 1880. At some time, which he says he fixes by mere memory as April, 1875, he heard singing, but no speech, through something which he thinks was D and E, and thereupon he told one of his neighbors, he says, that "it would be a very good thing if Drawbaugh gets it accomplished." Real speaking telephones like D and E never would produce that effect; nor has he any way of fixing a date.
Isaac Millard testified that he heard through them in 1874, which is before Drawbaugh pretends they were made; he afterwards was brought by leading questions to say he thought it was in 1874; but he had already sworn that in 1869 he plainly heard speech through the tumbler and tin can which we know cannot talk, and he also swore that in 1869 he heard speech over a certain out-door line which Drawbaugh himself testifies did not exist until 1878.
Fettrow, the blacksmith of the town, who hired half of Drawbaugh's house and lived under the same roof with him from 1868 to April, 1876, and has lived in the same house ever since, says that it was in 1875, according to his recollection, that Drawbaugh for the first time alluded to the subject to him. At some time, which he thinks was in 1875, he talked through something which he thinks was D and E. He has been at the shop from once a week to once a month ever since. He says that he has continually seen talking machines, but never trief to talk through one at any other time, and has no other definite recollection about them.
Holsinger is the witness who swore that Drawbaugh's whole heart and soul were on the telephone from the time he, the witness, first moved to Eberly's Mills in 1873 until he left in 1876, and that he hardly knew of Drawbaugh ever working on anything else, unless it might be his magneto telegraph key. Yet during that time Drawbaugh was absorbed in the various pieces of experimental work that have been mentioned. Holsinger was the printer who, in 1874 and again in 1786, printed the card enumerating eighteen other inventions but not the telephone; and Holsinger was the newspaper writer who in the fall of 1875, and again in the fall of 1876, wrote newspaper articles speaking of the clock as Drawbaugh's real work, and making no allusion to the telephone.
Harmon K. Drawbaugh is the claimant's nephew, and says that he did substantially all the work of making the instruments D and E, under his uncle's direction. Holsinger swears that with his own eyes, day after day, he saw Drawbaugh himself making them.
These six men were all the witnesses who pretended to have heard speech through D and E during the first taking of testimony for the defence.In the fourth year of the case, when they were completing their four hundred witnesses (called mostly to the most remote, trivial, and incompetent collateral matters), and after the incapacity of the instruments preceding D and E had been proved, Drawbaugh made great efforts to get some more witnesses to swear to this pair. He succeeded in getting only two, and they were such as would destroy any case for which they might be called.
John Simmons, an old inhabitant of the village, testified that he has worked in Drawbaugh's shop most of the time since 1880, and was in his employ at the time he testified; that during the taking of the testimony, and a few months before he himself testified, he stated to the complainant's representative that he knew nothing about the telephone. Afterwards, in 1884, he went on the witness stand and testified that it had suddenly come to him that he remembered all about it, and had talked through D and E, in November, 1875, but that he never mentioned that circumstance to any one until he told it to the defendants' counsel the day he testified. Yet during the whole of the time of taking testimony, and for three years preceding his deposition, he was employed by Drawbaugh as a workman in his shop, and talked with him about the case.
George May lived in Drawbaugh's village from 1874 to the day the testified in 1884. He is a farm laborer, and perhaps the stupidest among all the witnesses. He says that when testimony was first being taken in 1881-2 Drawbaugh asked him "whether I didn't mind the time he showed it to me in 1875." He had no recollection then, and was not called. But just at the end of the case, and after he had heard the matter talked over for four years in the little village, he suddenly remembered all about it, and testified in 1884 that Drawbaugh talked through D and E with him in March, 1875, and he knew that was the time because Drawbaugh sharpened a razor for him that year. When asked what else he saw and did on that occasion, he describes seeing the instrument H with as much certainty as D and E. Drawbaugh's own story is that the instrument H did not exist until the fall of 1876.
This testimony about D and E is the whole proof on which Drawbaugh's case must depend.
Drawbaugh himself is not among those who swear to the existence or use of those instruments before the Bell patent. After the first six enumerated witnesses had testified, Drawbaugh was called. His counsel did not dare to ask him when he made the instruments D and E, nor even if he made them before the Bell patent. They were put into his hands, and he was told, by a question objected to as leading and incompetent, that his nephew Harmon had testified that they were made in January or February, 1875, and he was asked by his own counsel, "Have you any recollection of the fact or not?" and he answered, "I have no recollection of the time, but I recollect of Harmon working on the machine. One of them was made before that time. What I mean is, that there was one of them made, and Ilarmon made, or helped to make, the other. I cannot remember the year or the date of it."
Afterwards he was again asked which instruments he had made prior to the time when the Axle Company carried on business in the shop; their business began March, 1875, and ended in the fall of 1876. He says: "I won't positively say that D and E were prior to the Axle Company, but I know that at the time the Axle Company was running I had them there. It may have been prior to the starting of the Axle Company. It may be, but I do not want to be too positive."
The claimant himself, therefore, will not swear that those instruments were made before the Bell patent. The court must tell him, for he cannot tell the court. If he had had these perfect instruments eighteen months when he heard of Bell's invention and Centennial exhibition in the summer of 1876, as he said he did, he could not have forgotten that fact. He knows that they did not then exist, and he does not dare to run the risk of a prosecution for perjury on that specific fact. When he will not swear that these instruments were made before the Bell patent, the court in such a case cannot, as matter of law, find that they were. Certainly it will not on such meagre testimony as he has produced, and in the face of the facts of history. But though Drawbaugh did not even know in what year they were made, he personally tried to get May to swear to so definite a date as March, 1875, and persisted until he succeeded.
The defendant's witnesses who swear to D and E -- both those who say they heard speech and those who say they casually saw them but never tried them -- invariably profess to recognize them by the "curled" or snail-shaped steel magnet at the back of D (vide p. 400, supra).It is certain that they never saw it. This magnet in exhibit D is fastened very loosely by one end to one end of the sliding core of the electro-magnet. The rest of this curled magnet is entirely unsupported, and its mode of attachment is such that the least handling breaks it away and throws it out of place; so that as soon as the exhibit came to be used in evidence, a block of wood and a screw which are now present were put in after it had been filed, in order to preserve it from destruction. When the instrument was first made, the magnet was enclosed by a wooden cover, a duplicate of which now exists in E. Drawbaugh says that this cover became broken and lost off, and was not replaced. It is certain from the condition of the magnet and the mode of its attachment that the instrument never was used for many days without the cover, because it would have fallen to pieces. The loss of the cover, therefore, must have been, not at the very beginning of the life of the instrument, but at about the time when it ceased to be used and became superseded by later instruments. With that cover on, the curled magnet cannot be seen, and the arrangement of the adjusting screw is such that the cover, once put on, could not be taken off without breaking it to pieces or taking the instrument apart. Yet every one of the witnesses who testify to this instrument, including those who profess to have seen it before it was a month old, swear that they recognized it by "the curled magnet." It is obvious that they never could have seen that magnet, and that, as it is now a striking feature, their professed memory is the result of recent observation, and not of recollection.
Again, Drawbaugh's nephew, Harmon Drawbaugh, says that he finished and put together the metal work of these instruments. He swears that when they were first made, two sets of curled magnets were forged, and that one set was then made by Fettrow, the village blacksmith. The date when Fettrow made these magnets would therefore settle the date of the instruments. Now Fettrow produced at Drawbaugh's call all the accounts between himself and Drawbaugh from 1869 to April, 1876. He testified that they contained every item between himself and Drawbaugh; and in fact they did contain many items as low as ten cents for little pieces of iron and steel and forgings. Yet during the two years prior to April, 1876, there is no charge for magnets, and no charge for any piece of steel or metal whatever out of which those magnets could possibly have been made. It is certain from these accounts, therefore, that they were not made before April, 1876. All these pieces of testimony were commented upon at the first hearing before Judge Wallace, in October, 1884. The defendants afterwards took an additional volume of testimony, but made no attempt to meet these fatal pieces of proof then upon the record.
A number of witnesses called by Drawbaugh testify that the instruments which Drawbaugh showed as his best, at some time after the Bell patent, were the tumbler and tin can. Urias Nichols, for example, who went there at a date which we now have proved was in January, 1878 swears that the instruments he talked through were the tumbler and tin can, and he did not see D and E. So with Samuel Nichols, Springer testifies that he moved to the village in April, 1876, which was after the Bell patent, and lived there for nine months, and experimented with Drawbaugh almost every day. He says that for several months when he first went there they used the tumbler and tin can exclusively, and that, after that, Drawbaugh said to him that he had now got some instruments which would talk both ways, and produced D and E as novelties, and the witness had never seen them before.
Testimony about 1875 and 1876, and later. -- A number of witnesses called by us, personal friends of Drawbaugh, first heard of his having any telephone in October, 1876, and were then shown by Drawbaugh the tin can as all he had. The testimony of one set of these witnesses, Shapley and his brothers-in-law, is very convincing. Mr. Shapley was a jeweller and watchmaker at Mechanicsburg, a few miles from Drawbaugh's village. Indeed, Drawbaugh lived in Mechanicsburg from April, 1876, to April, 1877, while the Bell patent became famous. Mr. Shapley is a well-to-do, intelligent man, and he and Drawbaugh had been acquainted for many years. In 1876, Shapley had two thousand dollars lying idle which he was seeking employment for, and Drawbaugh, knowing of that, went to thim to absorb the money. He offered to Shapley an interest in his electric clock invention, not then patented, and Shapley made with him a written conditional contract, dated November 8, 1878, to take it if on examination he liked it, and paid him $20 on account. In October, 1876, Shapley went to Drawbaugh's shop with his brother-in-law Landis, another watchmaker, and they examined the clock. A few weeks afterwards, Drawbaugh brought the clock to Shapley's store, set it up, arranged his earth batteries, and had it running: and Shapley paid about $20 more for the expenses of this. Then Shapley made another electric clock like it with his own hands, in order to better test the invention. Finally, discovering that that clock, like all others of its kind, could not possibly be a good timekeeper, owing to the variations in the strength of the electric current, he gave up the bargain.
Drawbaugh's story is that his utmost endeavors were directed to getting somebody to advance money enough to patent his telephones and manufacture them. Between June and October, 1876, Mr. Bell's Centennial exhibition had attracted the attention of every one to the telephone. Drawbaugh had read the accounts of it, and they had been published in the local papers. If he then had, not Bell's feeble membrane diaphragm instruments of the Centennial, but the excellent magnetos D and E, and the Blake transmitter H, it is not in human nature that, coming into contact with his friend Mr. Shapley, who was ready to invest several thousand dollars in his inventions, he would not have asked him to invest it in the telephone. It is not in human nature that he should not have told Shapley that he had these wonderful instruments if he had them, and shown them to Shapley when Shapley was at his shop in October, 1876. And when he wanted to create a sensation in the town by an exhibition in Shapley's shop, in November, 1876, after the newspaper accounts of Bell had excited the whole world about the electrical transmission of speech, it is impossible to believe that he would have got Shapley to spend $20 in carrying his clock there and setting it up, when the little magnetos which could be used without a battery or a moment's preparation would have far surpassed any possible clock in novelty and in interest. Yet it is the concurrent testimony of Mr. Shapley, of his brother-in-law Mr. Landis, and of Drawbaugh himself, that Drawbaugh never asked Shapley to invest any money in the telephone, nor pretended to them for one moment that he was the first inventor of it, nor made any reference to it beyond what Shapley testified as follows:
Mr. Shapley took the Scientific American, and Drawbaugh was in the habit of reading it at his shop and borrowing the papers. In September, 1876, the Scientific American described Bell's Centennial telephone as consisting of a tin can with a bladder across one end, carrying an iron armature, and an electro-magnet in front of that armature; and Drawbaugh testifies that about this time he read somewhere a description of Bell's instruments. In October, 1876, (the date is positively fixed,) Shapley and Landis were at Drawbaugh's shop. They both agree, and Drawbaugh does not contradict it, that he showed them the tin can instrument which corresponds to that description of Bell's apparatus, (and no other instrument,) and told them that that was an invention which was going to make a great stir in the world. Yet he did not hint to them that he was the originator of it; that he had had it for nine years; and that in that very room, twelve feet square, where they were, he had instruments -- the magnetos D and E, the carbon microphones G, O, and the blake transmitter H -- which far surpassed anything that anybody dreamed of at that time. That was the time when he was first trying to interest Shapley in some invention, -- he did not care what.And his story is that he thought the telephone the greatest thing ever made, and that he knew that $50 for a patent would insure fame and fortune, and he was in search of a partner.
A few days afterwards Drawbaugh was at Shapley's shop, and Shapley produced a copy of the Scientific American with a description of the Reis telephone, (issue of March 4, 1876,) and said to Drawbaugh that that was the kind of thing that he appeared to be working on, and gave him the paper.Drawbaugh agrees to all this. He kept the paper, and produced it on his cross-examination. But Drawbaugh never suggested to Shapley to join him in a telephone; never said that he invented it nine years before. He has never offered any explanation of how his story could be reconciled with these facts.
The evidence in his own record relating to 1875 and 1876 makes an equally strong case against him. The Axle Company, so-called, a partnership of four persons, employed Drawbaugh as their foreman, to make at his machine shop their patented axle. Their business began in March, 1875, and was not finally terminated until November, 1876 -- eight months after the Bell patent. Drawbaugh called Bear and Grove, two of the four partners composing the Axle Company, and they, with an exhibition of great dulness and worthless memories, say that they think they probably saw telephones while they were there; Bear's chief reason for thinking so being, as he expresses it, "I have no doubt, as Mr. Drawbaugh explained to me often about his inventions, that he spoke of his talking machine." That is a good sample of the condition of mind of his neighbors who testified for him. They assume that he had them, and, ashamed to confess that they do not remember them, vie with each other in "recollection." Neither of these men pretend to any distinct recollection, and neither of them pretend ever to have talked through the instruments. Kline, the inventor of that patent axle, was at the shop a great deal, and must have known all about the telephones if they were there. The defendants drew from one of our witnesses on cross-examination the fact that while the taking of testimony was going on, Kline declared that he never knew of any telephone there; and in spite of that the defendants did not call him. The remaining member of the Axle Company was Captain Moore, a man of means, intelligence, and education; one of the three or four men of intelligence and education among all the defendants' witnesses. He says that during the time of his axle business, -- which was until eight months after the Bell patent, -- Drawbaugh spoke to him about his talking machine, and asked him to advance money to patent it, and that he (Moore) felt a good deal of interest in it. He was asked by Drawbaugh's counsel whether during that time Drawbaugh did not show him the tumbler F and tin can B, and he assented, and says that they then had the bladders on. He thinks that he also casually saw Drawbaugh at some time working on something which he says may or may not have been talking machines, but that is all. The inquiry thus put to him by Drawbaugh on the witness stand and his answer amount to a statement by Drawbaugh as well as by himself that the tumbler and tin can with the bladders on -- that is not superseded -- were the only telephone instruments specifically shown him during all the time he was there, down to the fall of 1876. If that be true, it is certain that the story that D and E were made before Captain Moore ever went there, and had long superseded F and B, which had consequently become dismantled, is false. Captain Moore thinks that this exhibition of F and B was in the early summer of 1875, but he has no possible way of fixing the date. There is no trace of the enthusiasm Drawbaugh would have shown if his story of eight years' anticipation of Bell were true. It is impossible, if D, E, and H existed, that Captain Moore could have been asked such questions by Drawbaugh or could have disclosed such a history.
Captain Moore's testimony shows that he has confused the tin can telephone B, which we have no doubt he saw in the fall of 1876, or later (after Drawbaugh had read of Bell's), with Drawbaugh's magneto key, which he undoubtedly saw in the early part of 1875 (p. 439, supra).
Summary. -- In short, Drawbaugh's history is this. All his life he has been a professional inventor and patentee, and has made his living chiefly by selling his inventions. He was always able to find partners to join his enterprises. During the ten years before the Bell patent he himself received in actual cash $10,000; his friends and neighbors embarked $30,000 on his inventions, and offered to exploit other inventions if he had any to present. His story is that during all those years he had practical speaking telephones, fully realized that a fortune awaited him if he could patent them or make them for sale, and failed to do it solely from abject poverty himself and inability to obtain aid from others. Yet he spent more time and money experimenting on various gimcracks of no value than would have sufficed to make a hundred telephones and patent them a dozen times over, and not one of his partners or the intelligent men around him, or the telegraph superintendents to whom he showed his other electrical contrivances, ever heard that he had a telephone.
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