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.