CHAPTER XXVIII

THE BLACK FLAG THROUGHOUT the forty-odd years of his creative life, Edison has realized by costly experience the truth of the cynical proverb that "A patent is merely a title to a lawsuit." It is not intended, however, by this statement to lead to any inference on the part of the reader that HE stands peculiarly alone in any such experience, for it has been and still is the common lot of every successful inventor, sooner or later. To attribute dishonesty or cupidity as the root of the defence in all patent litigation would be aiming very wide of the mark, for in no class of suits that come before the courts are there any that present a greater variety of complex, finely shaded questions, or that require more delicacy of interpretation, than those that involve the construction of patents, particularly those relating to electrical devices. Indeed, a careful study of legal procedure of this character could not be carried far without discovery of the fact that in numerous instances the differences of opinion between litigants were marked by the utmost bona fides. On the other hand, such study would reveal many cases of undoubted fraudulent intent, as well as many bold attempts to deprive the inventor of the fruits of his endeavors by those who have sought to evade, through subtle technicalities of the law, the penalty justly due them for trickery, evasion, or open contempt of the rights of others. In the history of science and of the arts to which the world has owed its continued progress from year to year there is disclosed one remarkable fact, and that is, that whenever any important discovery or invention has been made and announced by one man, it has almost always been disclosed later that other men--possibly widely separated and knowing nothing of the other's work--have been following up the same general lines of investigation, independently, with the same object in mind. Their respective methods might be dissimilar while tending to the same end, but it does not necessarily follow that any one of these other experimenters might ever have achieved the result aimed at, although, after the proclamation of success by one, it is easy to believe that each of the other independent investigators might readily persuade himself that he would ultimately have reached the goal in just that same way. This peculiar coincidence of simultaneous but separate work not only comes to light on the bringing out of great and important discoveries or inventions, but becomes more apparent if a new art is disclosed, for then the imagination of previous experimenters is stimulated through wide dissemination of the tidings, sometimes resulting in more or less effort to enter the newly opened field with devices or methods that resemble closely the original and fundamental ones in principle and application. In this and other ways there arises constantly in the United States Patent Office a large number of contested cases, called "Interferences," where applications for patents covering the invention of a similar device have been independently filed by two or even more persons. In such cases only one patent can be issued, and that to the inventor who on the taking of testimony shows priority in date of invention. [20] [Footnote 20: A most remarkable instance of contemporaneous invention and without a parallel in the annals of the United States Patent Office, occurred when, on the same day, February 15, 1876, two separate descriptions were filed in that office, one a complete application and the other a caveat, but each covering an invention for "transmitting vocal sounds telegraphically." The application was made by Alexander Graham Bell, of Salem, Massachusetts, and the caveat by Elisha Gray, of Chicago, Illinois. On examination of the two papers it was found that both of them covered practically the same ground, hence, as only one patent could be granted, it became necessary to ascertain the precise hour at which the documents were respectively filed, and put the parties in interference. This was done, with the result that the patent was ultimately awarded to Bell.] In the opening up and development of any new art based upon a fundamental discovery or invention, there ensues naturally an era of supplemental or collateral inventive activity--the legitimate outcome of the basic original ideas. Part of this development may be due to the inventive skill and knowledge of the original inventor and his associates, who, by reason of prior investigation, would be in better position to follow up the art in its earliest details than others, who might be regarded as mere outsiders. Thus a new enterprise may be presented before the world by its promoters in the belief that they are strongly fortified by patent rights which will protect them in a degree commensurate with the risks they have assumed. Supplemental inventions, however, in any art, new or old, are not limited to those which emanate from the original workers, for the ingenuity of man, influenced by the spirit of the times, seizes upon any novel line of action and seeks to improve or enlarge upon it, or, at any rate, to produce more or less variation of its phases. Consequently, there is a constant endeavor on the part of a countless host of men possessing some degree of technical skill and inventive ability, to win fame and money by entering into the already opened fields of endeavor with devices and methods of their own, for which subsidiary patents may be obtainable. Some of such patents may prove to be valuable, while it is quite certain that in the natural order of things others will be commercially worthless, but none may be entirely disregarded in the history and development of the art. It will be quite obvious, therefore, that the advent of any useful invention or discovery, great or small, is followed by a clashing of many interests which become complex in their interpretation by reason of the many conflicting claims that cluster around the main principle. Nor is the confusion less confounded through efforts made on the part of dishonest persons, who, like vultures, follow closely on the trail of successful inventors and (sometimes through information derived by underhand methods) obtain patents on alleged inventions, closely approximating the real ones, solely for the purpose of harassing the original patentee until they are bought up, or else, with the intent of competing boldly in the new business, trust in the delays of legal proceedings to obtain a sure foothold in their questionable enterprise. Then again there are still others who, having no patent rights, but waving aside all compunction and in downright fraud, simply enter the commercial field against the whole world, using ruthlessly whatever inventive skill and knowledge the original patentee may have disclosed, and trusting to the power of money, rapid movement, and mendacious advertising to build up a business which shall presently assume such formidable proportions as to force a compromise, or stave off an injunction until the patent has expired. In nine cases out of ten such a course can be followed with relative impunity; and guided by skilful experts who may suggest really trivial changes here and there over the patented structure, and with the aid of keen and able counsel, hardly a patent exists that could not be invaded by such infringers. Such is the condition of our laws and practice that the patentee in seeking to enforce his rights labors under a terrible handicap. And, finally, in this recital of perplexing conditions confronting the inventor, there must not be forgotten the commercial "shark," whose predatory instincts are ever keenly alert for tender victims. In the wake of every newly developed art of world-wide importance there is sure to follow a number of unscrupulous adventurers, who hasten to take advantage of general public ignorance of the true inwardness of affairs. Basing their operations on this lack of knowledge, and upon the tendency of human nature to give credence to widely advertised and high-sounding descriptions and specious promises of vast profits, these men find little difficulty in conjuring money out of the pockets of the unsophisticated and gullible, who rush to become stockholders in concerns that have "airy nothings" for a foundation, and that collapse quickly when the bubble is pricked. [21] [Footnote 21: A notable instance of the fleecing of unsuspecting and credulous persons occurred in the early eighties, during the furor occasioned by the introduction of Mr. Edison's electric-light system. A corporation claiming to have a self-generating dynamo (practically perpetual motion) advertised its preposterous claims extensively, and actually succeeded in selling a large amount of stock, which, of course, proved to be absolutely worthless.] To one who is unacquainted with the trying circumstances attending the introduction and marketing of patented devices, it might seem unnecessary that an inventor and his business associates should be obliged to take into account the unlawful or ostensible competition of pirates or schemers, who, in the absence of legal decision, may run a free course for a long time. Nevertheless, as public patronage is the element vitally requisite for commercial success, and as the public is not usually in full possession of all the facts and therefore cannot discriminate between the genuine and the false, the legitimate inventor must avail himself of every possible means of proclaiming and asserting his rights if he desires to derive any benefit from the results of his skill and labor. Not only must he be prepared to fight in the Patent Office and pursue a regular course of patent litigation against those who may honestly deem themselves to be protected by other inventions or patents of similar character, and also proceed against more palpable infringers who are openly, defiantly, and illegitimately engaged in competitive business operations, but he must, as well, endeavor to protect himself against the assaults of impudent fraud by educating the public mind to a point of intelligent apprehension of the true status of his invention and the conflicting claims involved. When the nature of a patent right is considered it is difficult to see why this should be so. The inventor creates a new thing--an invention of utility--and the people, represented by the Federal Government, say to him in effect: "Disclose your invention to us in a patent so that we may know how to practice it, and we will agree to give you a monopoly for seventeen years, after which we shall be free to use it. If the right thus granted is invaded, apply to a Federal Court and the infringer will be enjoined and required to settle in damages." Fair and false promise! Is it generally realized that no matter how flagrant the infringement nor how barefaced and impudent the infringer, no Federal Court will grant an injunction UNTIL THE PATENT SHALL HAVE BEEN FIRST LITIGATED TO FINAL HEARING AND SUSTAINED? A procedure, it may be stated, requiring years of time and thousands of dollars, during which other infringers have generally entered the field, and all have grown fat. Thus Edison and his business associates have been forced into a veritable maelstrom of litigation during the major part of the last forty years, in the effort to procure for themselves a small measure of protection for their interests under the numerous inventions of note that he has made at various times in that period. The earlier years of his inventive activity, while productive of many important contributions to electrical industries, such as stock tickers and printers, duplex, quadruplex, and automatic telegraphs, were not marked by the turmoil of interminable legal conflicts that arose after the beginning of the telephone and electric-light epochs. In fact, his inventions; up to and including his telephone improvements (which entered into already existing arts), had been mostly purchased by the Western Union and other companies, and while there was more or less contesting of his claims (especially in respect of the telephone), the extent of such litigation was not so conspicuously great as that which centred subsequently around his patents covering incandescent electric lighting and power systems. Through these inventions there came into being an entirely new art, complete in its practicability evolved by Edison after protracted experiments founded upon most patient, thorough, and original methods of investigation extending over several years. Long before attaining the goal, he had realized with characteristic insight the underlying principles of the great and comprehensive problem he had started out to solve, and plodded steadily along the path that he had marked out, ignoring the almost universal scientific disbelief in his ultimate success. "Dreamer," "fool," "boaster" were among the appellations bestowed upon him by unbelieving critics. Ridicule was heaped upon him in the public prints, and mathematics were called into service by learned men to settle the point forever that he was attempting the utterly impossible. But, presto! no sooner had he accomplished the task and shown concrete results to the world than he found himself in the anomalous position of being at once surrounded by the conditions which inevitably confront every inventor. The path through the trackless forest had been blazed, and now every one could find the way. At the end of the road was a rich prize belonging rightfully to the man who had opened a way to it, but the struggles of others to reach it by more or less honest methods now began and continued for many years. If, as a former commissioner once said, "Edison was the man who kept the path to the Patent Office hot with his footsteps," there were other great inventors abreast or immediately on his heels, some, to be sure, with legitimate, original methods and vital improvements representing independent work; while there were also those who did not trouble to invent, but simply helped themselves to whatever ideas were available, and coming from any source. Possibly events might have happened differently had Edison been able to prevent the announcement of his electric-light inventions until he was entirely prepared to bring out the system as a whole, ready for commercial exploitation, but the news of his production of a practical and successful incandescent lamp became known and spread like wild-fire to all corners of the globe. It took more than a year after the evolution of the lamp for Edison to get into position to do actual business, and during that time his laboratory was the natural Mecca of every inquiring person. Small wonder, then, that when he was prepared to market his invention he should find others entering that market, at home and abroad, at the same time, and with substantially similar merchandise. Edison narrates two incidents that may be taken as characteristic of a good deal that had to be contended with, coming in the shape of nefarious attack. "In the early days of my electric light," he says, "curiosity and interest brought a great many people to Menlo Park to see it. Some of them did not come with the best of intentions. I remember the visit of one expert, a well-known electrician, a graduate of Johns Hopkins University, and who then represented a Baltimore gas company. We had the lamps exhibited in a large room, and so arranged on a table as to illustrate the regular layout of circuits for houses and streets. Sixty of the men employed at the laboratory were used as watchers, each to keep an eye on a certain section of the exhibit, and see there was no monkeying with it. This man had a length of insulated No. 10 wire passing through his sleeves and around his back, so that his hands would conceal the ends and no one would know he had it. His idea, of course, was to put this wire across the ends of the supplying circuits, and short-circuit the whole thing--put it all out of business without being detected. Then he could report how easily the electric light went out, and a false impression would be conveyed to the public. He did not know that we had already worked out the safety-fuse, and that every group of lights was thus protected independently. He put this jumper slyly in contact with the wires--and just four lamps went out on the section he tampered with. The watchers saw him do it, however, and got hold of him and just led him out of the place with language that made the recording angels jump for their typewriters." The other incident is as follows: "Soon after I had got out the incandescent light I had an interference in the Patent Office with a man from Wisconsin. He filed an application for a patent and entered into a conspiracy to 'swear back' of the date of my invention, so as to deprive me of it. Detectives were put on the case, and we found he was a 'faker,' and we took means to break the thing up. Eugene Lewis, of Eaton & Lewis, had this in hand for me. Several years later this same man attempted to defraud a leading firm of manufacturing chemists in New York, and was sent to State prison. A short time after that a syndicate took up a man named Goebel and tried to do the same thing, but again our detective-work was too much for them. This was along the same line as the attempt of Drawbaugh to deprive Bell of his telephone. Whenever an invention of large prospective value comes out, these cases always occur. The lamp patent was sustained in the New York Federal Court. I thought that was final and would end the matter, but another Federal judge out in St. Louis did not sustain it. The result is I have never enjoyed any benefits from my lamp patents, although I fought for many years." The Goebel case will be referred to later in this chapter. The original owner of the patents and inventions covering his electric-lighting system, the Edison Electric Light Company (in which Edison was largely interested as a stockholder), thus found at the outset that its commercial position was imperilled by the activity of competitors who had sprung up like mushrooms. It became necessary to take proper preliminary legal steps to protect the interests which had been acquired at the cost of so much money and such incessant toil and experiment. During the first few years in which the business of the