The Telephone, Motograph, And Microphone - 5

The Telephone, Motograph, And Microphone - 5

"Acting as judges, inventors would not be very apt to correctly decide a complicated law

point; and on the other hand, it is hard to see how a lawyer can decide a complicated

scientific point rightly. Some inventors complain of our Patent Office, but my own

experience with the Patent Office is that the examiners are fair-minded and intelligent,

and when they refuse a patent they are generally right; but I think the whole trouble lies

with the system in vogue in the Federal courts for trying patent suits, and in the fact,

which cannot be disputed, that the Federal judges, with but few exceptions, do not

comprehend complicated scientific questions. To secure uniformity in the several Federal

circuits and correct errors, it has been proposed to establish a central court of patent

appeals in Washington. This I believe in; but this court should also contain at least two

scientific men, who would not be blind to the sophistry of paid experts.[7] Men whose

inventions would have created wealth of millions have been ruined and prevented from

making any money whereby they could continue their careers as creators of wealth for

the general good, just because the experts befuddled the judge by their misleading

statements."

[7] As an illustration of the perplexing nature of expert evidence in patent cases, the

reader will probably be interested in perusing the following extracts from the opinion of

Judge Dayton, in the suit of Bryce Bros. Co. vs. Seneca Glass Co., tried in the United

States Circuit Court, Northern District of West Virginia, reported in The Federal

Reporter, 140, page 161:

"On this subject of the validity of this patent, a vast amount of conflicting, technical,

perplexing, and almost hypercritical discussion and opinion has been indulged, both in

the testimony and in the able and exhaustive arguments and briefs of counsel. Expert

Osborn for defendant, after setting forth minutely his superior qualifications mechanical

education, and great experience, takes up in detail the patent claims, and shows to his

own entire satisfaction that none of them are new; that all of them have been applied,

under one form or another, in some twenty- two previous patents, and in two other

machines, not patented, to-wit, the Central Glass and Kuny Kahbel ones; that the whole

machine is only `an aggregation of well-known mechanical elements that any skilled

designer would bring to his use in the construction of such a machine.' This certainly,

under ordinary conditions, would settle the matter beyond peradventure; for this witness

is a very wise and learned man in these things, and very positive. But expert Clarke

appears for the plaintiff, and after setting forth just as minutely his superior

qualifications, mechanical education, and great experience, which appear fully equal in

all respects to those of expert Osborn, proceeds to take up in detail the patent claims, and

shows to his entire satisfaction that all, with possibly one exception, are new, show

inventive genius, and distinct advances upon the prior art. In the most lucid, and even

fascinating, way he discusses all the parts of this machine, compares it with the others,

draws distinctions, points out the merits of the one in controversy and the defects of all

the others, considers the twenty-odd patents referred to by Osborn, and in the politest, but

neatest, manner imaginable shows that expert Osborn did not know what he was talking

about, and sums the whole matter up by declaring this `invention of Mr. Schrader's, as

embodied in the patent in suit, a radical and wide departure, from the Kahbel machine'

(admitted on all sides to be nearest prior approach to it), `a distinct and important advance

in the art of engraving glassware, and generally a machine for this purpose which has

involved the exercise of the inventive faculty in the highest degree.'

"Thus a more radical and irreconcilable disagreement between experts touching the same

thing could hardly be found. So it is with the testimony. If we take that for the defendant,

the Central Glass Company machine, and especially the Kuny Kahbel machine, built and

operated years before this patent issued, and not patented, are just as good, just as

effective and practical, as this one, and capable of turning out just as perfect work and as

great a variety of it. On the other hand, if we take that produced by the plaintiff, we are

driven to the conclusion that these prior machines, the product of the same mind, were

only progressive steps forward from utter darkness, so to speak, into full inventive

sunlight, which made clear to him the solution of the problem in this patented machine.

The shortcomings of the earlier machines are minutely set forth, and the witnesses for the

plaintiff are clear that they are neither practical nor profitable.

"But this is not all of the trouble that confronts us in this case. Counsel of both sides, with

an indomitable courage that must command admiration, a courage that has led them to a

vast amount of study, investigation, and thought, that in fact has made them all experts,

have dissected this record of 356 closely printed pages, applied all mechanical principles

and laws to the facts as they see them, and, besides, have ransacked the law- books and

cited an enormous number of cases, more or less in point, as illustration of their

respective contentions. The courts find nothing more difficult than to apply an abstract

principle to all classes of cases that may arise. The facts in each case so frequently create

an exception to the general rule that such rule must be honored rather in its breach than in

its observance. Therefore, after a careful examination of these cases, it is no criticism of

the courts to say that both sides have found abundant and about an equal amount of

authority to sustain their respective contentions, and, as a result, counsel have submitted,

in briefs, a sum total of 225 closely printed pages, in which they have clearly, yet, almost

to a mathematical certainty, demonstrated on the one side that this Schrader machine is

new and patentable, and on the other that it is old and not so. Under these circumstances,

it would be unnecessary labor and a fruitless task for me to enter into any further

technical discussion of the mechanical problems involved, for the purpose of seeking to

convince either side of its error. In cases of such perplexity as this generally some

incidents appear that speak more unerringly than do the tongues of the witnesses, and to

some of these I purpose to now refer."