The Valentine’s Day patent war

“What­ever evi­dence there is, is in favor of the caveat hav­ing been filed first.”

— Elisha Gray

“Great dis­cov­er­ies and improve­ments invari­ably involve the coop­er­a­tion of many minds.”

— Alexan­der Gra­ham Bell

Surely you didn’t let yesterday’s his­toric hol­i­day pass you by. Per­haps you cel­e­brated with a roman­tic phone call. Or a long-distance call to an old friend. Or a call to make a din­ner reser­va­tion. Or, really, any phone call at all. Because, if we’re think­ing of the same his­toric hol­i­day, a phone call of some kind had to be involved.

Oh, yes, I real­ize that yes­ter­day was Valentine’s Day, but the his­toric event I’m refer­ring to is the Feb. 14, 1876 race to the patent office between Alexan­der Gra­ham Bell and Ohio’s own Elisha Gray. Their bat­tle over the inven­tion of the tele­phone spurred sig­nif­i­cant lit­i­ga­tion that lasted for years.

Bell is well known for his “Wat­son, come here, I want to see you” moment, for his estab­lish­ment of the Bell Tele­phone Com­pany and for being one of the founders of the National Geo­graphic Soci­ety. But in the late 19th Cen­tury the bat­tle between Bell and Gray was as well known as the elec­tric­ity wars between Edi­son and Tesla.

Nei­ther Bell nor Gray were the first to con­ceive of a prac­ti­cal mechan­i­cal com­mu­ni­ca­tion sys­tem and they were not the only ones work­ing on pro­to­types. But they were the first to achieve the mechan­i­cal draw­ings and pro­to­types nec­es­sary to pro­ceed to patent appli­ca­tions. Gray was born in Bar­nesville, Ohio in Bel­mont County. He attended and taught at Ober­lin Col­lege and founded the West­ern Elec­tric Man­u­fac­tur­ing Com­pany in Cleve­land — a com­pany that today is known as Lucent Tech­nolo­gies. Dur­ing his life­time he accu­mu­lated more than 70 patents includ­ing the ear­li­est elec­tronic synthesizer.

Gray’s com­pany man­u­fac­tured parts for West­ern Tele­graph. Early tele­phone inven­tors con­sid­ered their work as an exten­sion of tele­graph tech­nol­ogy and, in fact, referred to the devices they were devel­op­ing as “har­monic telegraphs.” There were tech­ni­cal dif­fer­ences in their inven­tions but the fil­ings of the two men arrived at the U.S. patent office in Wash­ing­ton within hours of one another on Valentine’s Day in 1876.

It is impor­tant here to note that, con­trary to com­mon belief, the tim­ing of the appli­ca­tions’ arrival in D.C. is not actu­ally impor­tant. That is because until the Leahy-Smith Amer­ica Invents Act of 2011 (which takes effect one month from tomor­row) Amer­ica was not a ‘first to file’ patent coun­try, but rather a ‘first to invent’ coun­try, in which the patent is granted to the per­son who can prove that they were the first to actu­ally invent the device that is the sub­ject of the patent. When the AIA takes effect next month the U.S. will become a ‘first inven­tor to file’ coun­try in which the date of the fil­ing con­trols but the per­son fil­ing must still demon­strate that they actu­ally invented (rather than steal­ing) the device for which the patent is to be issued.

Regard­less, it appears that Bell’s patent appli­ca­tion was stamped imme­di­ately upon fil­ing and was marked as the fifth fil­ing of Feb. 14, 1876. Gray did not actu­ally file a patent appli­ca­tion, but rather a patent caveat — a sort of notice of the intent to later file a patent appli­ca­tion. Gray’s caveat was marked as the 39th fil­ing of the day, though the his­tor­i­cal evi­dence sug­gests it was filed sev­eral hours before Bell’s appli­ca­tion. On the advice of his attor­neys, Gray even­tu­ally with­drew his caveat and U.S. patent num­ber 174,465 was issued to Bell for the telephone.

That was merely the begin­ning of the dis­pute. For years Bell and Gray hag­gled in court about whether Bell’s orig­i­nal fil­ing had been mod­i­fied, whether Bell had stolen or copied a por­tion of Gray’s caveat and most impor­tantly, whether Bell or his rep­re­sen­ta­tives had bribed an alco­holic patent worker who was an old army buddy of one of Bell’s lawyers.

No con­spir­acy was ever proven and the patent inves­ti­ga­tion even­tu­ally con­cluded that the inven­tions oper­ated on dif­fer­ent prin­ci­ples, Gray had with­drawn his caveat and so didn’t have a legal leg to stand on and, most impor­tantly, Gray had never pro­ceeded to a work­ing model of his inven­tion and so had no claim to pri­or­ity over Bell’s inven­tion which had, there­fore, occurred first. Bell went on to dozens of other inven­tions, includ­ing research into record­ing devices, med­ical equip­ment, flight and alter­na­tive energy.

The Valentine’s Day fil­ing bat­tle between Bell and Gray shaped the world that now brings us ubiq­ui­tous tele­phonic com­mu­ni­ca­tion, tex­ting and wire­less data trans­fer. But it also serves notice of a sea change com­ing to U.S. patent law next month.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Feb 14 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.