The Black Flag - 6

The Black Flag - 6

The first trial was had before Judge Wallace in the United States Circuit Court for the

Southern District of New York, and the appeal was heard by Judges Lacombe and

Shipman, of the United States Circuit Court of Appeals. Before both tribunals the cause

had been fully represented by counsel chosen from among the most eminent

representatives of the bar at that time, those representing the Edison interests being the

late Clarence A. Seward and Grosvenor P. Lowrey, together with Sherburne Blake Eaton,

Albert H. Walker, and Richard N. Dyer. The presentation of the case to the courts had in

both instances been marked by masterly and able arguments, elucidated by experiments

and demonstrations to educate the judges on technical points. Some appreciation of the

magnitude of this case may be gained from the fact that the argument on its first trial

employed a great many days, and the minutes covered hundreds of pages of closely

typewritten matter, while the argument on appeal required eight days, and was set forth in

eight hundred and fifty pages of typewriting. Eliminating all purely forensic eloquence

and exparte statements, the addresses of counsel in this celebrated suit are worthy of deep

study by an earnest student, for, taken together, they comprise the most concise,

authentic, and complete history of the prior state of the art and the development of the

incandescent lamp that had been made up to that time.[22]

[22] The argument on appeal was conducted with the dignity and decorum that

characterize such a proceeding in that court. There is usually little that savors of humor in

the ordinary conduct of a case of this kind, but in the present instance a pertinent story

was related by Mr. Lowrey, and it is now reproduced. In the course of his address to the

court, Mr. Lowrey said:

"I have to mention the name of one expert whose testimony will, I believe, be found as

accurate, as sincere, as straightforward as if it were the preaching of the gospel. I do it

with great pleasure, and I ask you to read the testimony of Charles L. Clarke along with

that of Thomas A. Edison. He had rather a hard row to hoe. He is a young gentleman; he

is a very well-instructed man in his profession; he is not what I have called in the

argument below an expert in the art of testifying, like some of the others, he has not yet

become expert; what he may descend to later cannot be known; he entered upon his first

experience, I think, with my brother Duncan, who is no trifler when he comes to deal

with these questions, and for several months Mr. Clarke was pursued up and down, over a

range of suggestions of what he would have thought if he had thought something else had

been said at some time when something else was not said."

Mr. Duncan--"I got three pages a day out of him, too."

Mr. Lowrey--"Well, it was a good result. It always recalled to me what I venture now,

since my friend breaks in upon me in this rude manner, to tell the court as well illustrative

of what happened there. It is the story of the pickerel and the roach. My friend, Professor

Von Reisenberg, of the University of Ghent, pursued a series of investigations into the

capacity of various animals to receive ideas. Among the rest he put a pickerel into a tank

containing water, and separated across its middle by a transparent glass plate, and on the

other side he put a red roach. Now your Honors both know how a pickerel loves a red

roach, and I have no doubt you will remember that he is a fish of a very low forehead and

an unlimited appetite. When this pickerel saw the red roach through the glass, he made

one of those awful dashes which is usually the ruin of whatever stands in its-way; but he

didn't reach the red roach. He received an impression, doubtless. It was not sufficient,

however, to discourage him, and he immediately tried again, and he continued to try for

three- quarters of an hour. At the end of three-quarters of an hour he seemed a little

shaken and discouraged, and stopped, and the red roach was taken out for that day and

the pickerel left. On the succeeding day the red roach was restored, and the pickerel had

forgotten the impressions of the first day, and he repeated this again. At the end of the

second day the roach was taken out. This was continued, not through so long a period as

the effort to take my friend Clarke and devour him, but for a period of about three weeks.

At the end of the three weeks, the time during which the pickerel persisted each day had

been shortened and shortened, until it was at last discovered that he didn't try at all. The

plate glass was then removed, and the pickerel and the red roach sailed around together in

perfect peace ever afterward. The pickerel doubtless attributed to the roach all this

shaking, the rebuff which he had received. And that is about the condition in which my

brother Duncan and my friend Clarke were at the end of this examination."

Mr. Duncan--"I notice on the redirect that Mr. Clarke changed his color."

Mr. Lowrey--"Well, perhaps he was a different kind of a roach then; but you didn't

succeed in taking him.

"I beg your Honors to read the testimony of Mr. Clarke in the light of the anecdote of the

pickerel and the roach."

Owing to long-protracted delays incident to the taking of testimony and preparation for

trial, the argument before the United States Circuit Court of Appeals was not had until the

late spring of 1892, and its decision in favor of the Edison Lamp patent was filed on

October 4, 1892, MORE THAN TWELVE YEARS AFTER THE ISSUANCE OF THE

PATENT ITSELF.

As the term of the patent had been limited under the law, because certain foreign patents

had been issued to Edison before that in this country, there was now but a short time left

for enjoyment of the exclusive rights contemplated by the statute and granted to Edison

and his assigns by the terms of the patent itself. A vigorous and aggressive legal

campaign was therefore inaugurated by the Edison Electric Light Company against the

numerous infringing companies and individuals that had sprung up while the main suit

was pending. Old suits were revived and new ones instituted. Injunctions were obtained

against many old offenders, and it seemed as though the Edison interests were about to

come into their own for the brief unexpired term of the fundamental patent, when a new

bombshell was dropped into the Edison camp in the shape of an alleged anticipation of

the invention forty years previously by one Henry Goebel. Thus, in 1893, the litigation

was reopened, and a protracted series of stubbornly contested conflicts was fought in the

courts.