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Elisha Gray and Alexander Bell telephone controversy

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The Elisha Gray and Alexander Graham Bell controversy concerns the question of whether Bell or Gray invented the telephone independently and, if not, whether Bell stole the invention from Gray. This controversy is narrower than the broader question of who deserves credit for inventing the telephone, for which there are several claimants.

Background

Alexander Graham Bell was a tutor for the deaf while pursuing his own research into a method of telegraphy that could transmit multiple messages over a single wire simultaneously, a so-called "harmonic telegraph". Bell formed a partnership with two of his students' parents, including prominent Boston lawyer Gardiner Hubbard, to help fund his research in exchange for shares of any future profits.

Elisha Gray was a prominent inventor in Highland Park, Illinois. His Western Electric company was a major supplier to telegraph monopoly Western Union. Bell was in competition with Elisha Gray to be the first to invent a practical harmonic telegraph.

Excerpts from Elisha Gray's patent caveat of February 14 and Alexander Graham Bell's lab notebook entry of March 8, demonstrating similarities.

In the summer of 1874, Gray developed a harmonic telegraph device using vibrating reeds that could transmit musical tones, but not intelligible speech. In December 1874 he demonstrated it to the public at Highland Park First Presbyterian Church. On February 11, 1876, Gray included a diagram for a telephone in his notebook. On February 14, Gray's lawyer filed a patent caveat with a similar diagram. The same day, Bell's lawyer filed (hand-delivered to the U.S. Patent Office) a patent application on the harmonic telegraph, including its use for transmitting vocal sounds. On February 19, the patent office suspended Bell's application for three months to give Gray time to submit a full patent application with claims, after which the patent office would begin interference proceedings to determine whether Bell or Gray were first to invent the claimed subject matter of the telephone.

At the time, the USPTO required the submission of a working patent model for the patent application to be accepted, with the acceptance process often taking years, and with interference proceedings often involved public hearings—although the U.S. Congress had abolished the requirement for patent models in 1870.[1] However, Bell's lawyers argued strenuously for an exception to be made in their case, likely on the basis of the Congressional amendment to the patent law.

On February 24, 1876, Bell traveled to Washington DC. Nothing was entered in his lab notebook until his return to Boston on March 7. Bell's patent was issued on March 7. On March 8, Bell recorded an experiment in his lab notebook, with a diagram similar to that of Gray's patent caveat (see right). Bell finally got his telephone model to work on March 10, when Bell and his assistant Thomas A. Watson both recorded the famous "Watson, come here" story in their notebooks.

In a letter of March 2, 1877, Bell admitted to Gray that he was aware Gray's caveat "had something to do with the vibration of a wire in water [the variable resistance breakthrough that made the telephone practical] — and therefore conflicted with my patent." At this time, Gray's caveat was still confidential. In 1879, Bell testified under oath that he discussed "in a general way" Gray's caveat with patent examiner Zenas Fisk Wilber.

In a sworn affidavit from April 6, 1886, Wilber admitted that he was an alcoholic who owed money to his longtime friend and Civil War Army companion Marcellus Bailey, Bell's lawyer. Wilber says that after he issued the suspension on Bell's patent application, Bailey came to visit. In violation of Patent Office rules, he told Bailey about Gray's caveat and told his superiors that Bell's patent application had arrived first. During Bell's visit to Washington, "Prof. Bell was with me an hour when I showed him the drawing [of Gray's caveat] and explained Gray's methods to him." He says Bell returned at 2pm to give him a hundred-dollar bill.[2]

Wilber's other sworn affidavits leave out these details. Only his October 21, 1885 affidavit directly contradicts this story and Wilber claims it was "given at the request of the Bell company by Mr. Swan, of its counsel" and he was "duped to sign it" while drunk and depressed.[3] However, Wilber's April 6, 1886, affidavit was also sworn to and subscribed to Thomas W. Swan.[4] These conflicting affidavits discredited Wilber.

The April 6 affidavit was published in the Washington Post on May 22, 1886. Three days later, they published a sworn denial from Bell.

Conflicting theories

Bell supporters cite numerous lawsuits in which the courts decided in favor of Bell and the telephone company he founded. Gray supporters cite the fact that Bell's first successful experiment in transmitting clear speech over a wire was on March 10, 1876 using the same water transmitter design described in Gray's caveat but not described in Bell's patent.[5] There is a third side to this controversy, expressed in detail in a book by Evenson,[6] which concludes that it was Bell's lawyers, not Bell, who misappropriated Gray's water transmitter (variable resistance) invention.

Who got to the patent office first

Bell's lawyer filed Bell's patent application for the telephone in the US patent office on February 14, 1876. Gray's lawyer filed Gray's caveat the same day. Under US patent laws in 1876, a patent would be granted to the first to invent and not the first to file and therefore it should not have made any difference whether Bell or Gray filed first. The usual story says that Bell got to the patent office an hour or two before his rival Elisha Gray, and that Gray lost his rights to the telephone as a result.[7] But that is not what happened according to Evenson.[8]

According to Gray's account, his patent caveat was taken to the US patent office a few hours before Bell's application, shortly after the patent office opened and remained near the bottom of the in-basket until that afternoon. Bell's application was filed shortly before noon on February 14 by Bell's lawyer who requested that the filing fee be entered immediately onto the cash receipts blotter and that Bell's application be taken to the examiner immediately.[9] Late that afternoon, the fee for Gray's caveat was entered on the cash blotter and the caveat was not taken to the examiner until the following day. The fact that Bell's filing fee was recorded earlier than Gray's fee led to the story that Bell had arrived at the patent office earlier. Bell was in Boston on February 14 and did not know this was happening until he arrived in Washington on February 26.

On February 19, Zenas Fisk Wilber, the patent examiner for both Bell's application and Gray's caveat, noticed that Bell's application claimed the same variable resistance feature described in Gray's caveat and both described an invention for "transmitting vocal sounds". Wilber suspended Bell's application for 3 months to allow Gray to file a full patent application with claims. If Gray's claims claimed the same subject matter as Bell's claims, the examiner would begin "interference" proceedings to determine which inventor was the first to invent the variable resistance feature.

Gray's lawyer William D. Baldwin had been told that Bell's application had been notarized on January 20, 1876. Baldwin advised Gray and Gray's sponsor Samuel S. White to abandon the caveat and not to file a patent application for the telephone. Whether Bell's application was filed before or after Gray's caveat no longer mattered, because Gray abandoned his caveat, which opened the door to Bell being granted U.S. patent 174,465 for the telephone on March 7, 1876.

Conspiracy theories

Several conspiracy theories were presented during trials and appeals (1878-1888) in which the Bell Telephone Company sued competitors and later when Bell and his lawyers were accused of patent fraud. These theories were based on alleged corruption of the patent examiner Zenas Wilber who was an alcoholic. Wilber was accused of revealing secret information to Alexander Graham Bell and Bell's patent attorneys Anthony Pollok and Marcellus Bailey from patent applications and caveats of Bell's competitor Elisha Gray. One of the accusers was attorney Lysander Hill who charged that Bell's attorneys, Pollok and Bailey, had received this secret information from Wilber and that Wilber allowed Bell's attorney to insert a paragraph of seven sentences, based on this secret information, into Bell's patent application after both Gray's caveat and Bell's patent application had been filed in the patent office. However, Bell's original patent application shows no sign of alteration and Wilber declared an interference based on those seven sentences. Wilber noticed that the seven sentences contained subject matter very similar to the ideas expressed in Gray's caveat and suspended both Bell's application and Gray's caveat which he would not have done if the seven sentences had not been in Bell's application. The seven sentences were in the original patent application as filed on February 14, 1876. The conspiracy theories were rejected by the courts.[10]

One of the valuable claims in Bell's 1876 US patent 174,465 was Claim 4, a method of producing variable electrical current in a circuit by varying the resistance in the circuit. That feature was not shown in any of Bell's patent drawings, but was shown in Elisha Gray's drawings in his caveat filed the same day. A description of the variable resistance feature, consisting of the seven sentences, was inserted into a draft of Bell's application.[11] That the seven sentences were inserted in Bell's draft is not disputed. Bell testified that he inserted the seven sentences "almost at the last moment before sending it off to Washington to be engrossed." He said the engrossed application (also called the "fair copy") was returned to him from his lawyers on January 18, 1876 and that he signed it and had it notarized in Boston on January 20. But this statement by Bell is disputed by Evenson, [12] who argues that the seven sentences and Claim 4 were inserted into Bell's patent application without Bell's knowledge on February 13 or 14, just before Bell's application was hand carried to the Patent Office by one of Bell's lawyers.

Role of the patent attorneys

Evenson argues that it was not Wilber who leaked Gray's ideas to Bell's attorney after Gray's caveat was filed with the patent office, but somebody in the office of Gray's attorney, William D. Baldwin, and perhaps Baldwin himself, who leaked the variable resistance idea and the water transmitter idea to Bell's attorney before Gray's caveat and Bell's application were filed. It was Baldwin who advised Gray to abandon his caveat and not turn it into a patent application, because, Baldwin said, Bell had invented the telephone before Gray and Bell's application was notarized before Gray began his caveat. Baldwin urged Gray to write a letter to Bell congratulating him on his new telephone invention and "I do not claim even the credit of inventing it...”. Baldwin also failed to represent Gray's interests in the Dowd case. Baldwin was on the payroll of the Bell Telephone Company at the same time he was representing Gray in a patent office action involving the Bell company.[13][14] Gray did not tell anybody about his new invention for transmitting voice sounds until Friday, February 11, 1876 when Gray requested that Baldwin prepare a caveat for filing. Sometime on the weekend of February 12–13, Bell's lawyers learned of Gray's caveat. They then rushed to get Bell's application filed on Monday before Gray's caveat, or to make it appear that Bell's application was filed first.[15]

There were several versions of Bell's application:[16]

  • version E: draft consisting of 10 pages that Bell gave to George Brown for filing in England.[17]
  • version F: draft consisting of 10 pages sent by Bell to Pollok & Bailey in early January 1876.[18]
  • version X: engrossed "fair copy" signed by Bell and notarized on January 20, 1876 (presumably 14 pages)[19]
  • version G: final application consisting of 15 pages filed in the US Patent Office on February 14, 1876. After minor amendments were made, this version G was issued as a patent on March 7, 1876. [20]

Versions E and F are almost identical except for minor changes and the seven sentence insertion that now appears in the margin of version F, page 6. The question is when was this insertion made. Evenson argues that the seven sentences were not in version E or F when Bell sent version F to Pollok in early January 1876.[21] Pollok rewrote the claims on page 10 of version F and his clerk copied version F into an engrossed "fair copy" (version X) which Pollok sent to Bell. On January 20, Bell signed the last page of version X, had it notarized on the last page, and returned it to Pollok with instructions to hold it until Bell received a message from George Brown. There was probably no page number on the notarized page when it was notarized. Both the draft version F and the notarized version X remained in Pollok's file box.

Valentine's Day

According to Evenson, early on Monday, February 14, after learning of the variable resistance feature from Gray's lawyer, Pollok or Bailey inserted the seven sentences into version X, revised the claims, made other minor revisions, and had the clerk prepare a new engrossed fair copy, version G which consists of 14 pages, not including a signature page. Pollok or Bailey removed the unnumbered notarized signature page from version X and attached it to version G, wrote page number "15" at the bottom of the notarized page, and hand carried the application to the patent office before noon on February 14. The page number 15 on the notarized page is more than twice as large as page numbers on pages 10 through 14.[22] The inserted seven sentences are at the top of page 9 and the page number 9 is twice as large as page numbers on pages 10 through 14. Evenson does not speculate about what Pollok did with the pages of version X that were replaced by version G. Version F still lacked the seven sentence insertion. When Bell arrived in Washington on February 26, 1876, Pollok apparently requested that Bell write the seven sentences and other changes onto version F in Bell's handwriting, thereby creating a draft containing the variable resistance feature that Bell could later testify was made before January 18, 1876 "almost at the last moment" before sending version F to his lawyers.

Questions of theft

There was no "smoking gun" that proved that Bell had illegally acquired knowledge of Gray's invention from examiner Wilber prior to filing of Bell's patent application, but the paper trail left by various drafts of Bell's patent application is evidence that his lawyers may have acquired the basic ideas of Gray's liquid transmitter which Bell then used successfully to transmit "Mr. Watson, come here, I want to see you" on March 10, 1876.

Gray wrote to Bell saying: "I was unfortunate in being an hour or two behind you."[23] Gray changed his opinion after learning facts from the trials. Gray wrote that his caveat was filed first: "Whatever evidence there is, is in favor of the caveat having been filed first."[24]

In commenting on letters Gray and Bell wrote to each other before the trials, Gray wrote "Two or three letters passed and in one of them I told him of the caveat. In his [Bell's] answer he said: 'I do not know about your caveat, except that it had something to do with a wire vibrating in water', or words to that effect. "Vibrating in water" was the whole thing. How would he know that much?"[25] About his caveat, Gray wrote "I showed Bell how to make the telephone. He could not mistake it, because the drawings were explicit, as well as the specifications."[24]

Ten years after Bell's patent was issued, patent examiner Zenas Wilber admitted in a sworn affidavit that he had taken a $100 bribe from Bell, had taken a "loan" from Bell's patent attorney, and showed Bell the drawings in Gray's caveat.[26][27] Bell responded with his own sworn affidavit that he had never paid any money to Wilber and Wilber did not show the drawings or any part of Gray's caveat to Bell.[28] Bell testified that he visited Wilber before the patent was granted and asked Wilber what part of his application conflicted with Gray's caveat. Wilber told Bell that the conflict was with his use of variable resistance to cause undulating current and pointed to those words in Bell's application. Wilber suggested that Bell make several amendments to his application that eliminated the conflict and Bell complied.[29] Examiner Wilber then approved Bell's patent which was issued on March 3, 1876.

One week later, Bell built and successfully tested Gray's liquid transmitter which transmitted "Mr. Watson, come here, I want to see you" on March 10, 1876.

Although Bell was accused, and is still accused, of stealing the telephone from Gray,[30] Bell tested Gray's water transmitter design only after Bell's patent was granted and only as a proof of concept scientific experiment[31] to prove to his own satisfaction that intelligible "articulate speech" (Bell's words) could be electrically transmitted.[32] After March 1876, Bell focused on improving the electromagnetic telephone and never used Gray's liquid transmitter in public demonstrations or commercial use.[33]

When Gray applied for a patent for the variable resistance telephone transmitter, the Patent Office determined "while Gray was undoubtedly the first to conceive of and disclose the [variable resistance] invention, as in his caveat of 14 February 1876, his failure to take any action amounting to completion until others had demonstrated the utility of the invention deprives him of the right to have it considered."[34]

See also

References

Notes

  1. ^ A Simple Fix for the US Patent System: The Legal Requirement For Working Models, KeelyNet website. Retrieved September 12, 2010.
  2. ^ Zenas Fisk Wilber, Mr. Wilber "Confesses", Washington Post, May 22, 1886, pg. 1
  3. ^ Evenson, page 168
  4. ^ Evenson, page 171
  5. ^ The Telephone Gambit by Seth Shulman
  6. ^ The Telephone Patent Conspiracy of 1876 by A. Edward Evenson
  7. ^ Rothman, page 144
  8. ^ Evenson, pages 68-69, 75
  9. ^ Evenson, pages 68-69
  10. ^ Evenson, pages 182-185
  11. ^ This draft with the insertion can be seen on pages 70 and A76 in The Gray Matter
  12. ^ Evenson, pages 64-69, 86-87, 110, 194-196
  13. ^ Evenson, page 86
  14. ^ The Gray Matter, page 49
  15. ^ Evenson, pages 77-78
  16. ^ The Gray Matter, page 117
  17. ^ The Gray Matter, pages A60-A63
  18. ^ The Gray Matter, pages A71-A81
  19. ^ The Gray Matter, "a third version that was never located ... conforming to version F had vanished" (and was not filed in the Patent Office), page 120
  20. ^ The Gray Matter, pages A100-A114
  21. ^ Evenson, page 195
  22. ^ The Gray Matter, page A114
  23. ^ Evenson, page 105
  24. ^ a b Evenson, page 218
  25. ^ Evenson, page 219
  26. ^ Evenson, pages 167-171, full text of affidavit
  27. ^ Inventor's Digest, July/August 1998, p. 26-28
  28. ^ Evenson, pages 173-174, full text
  29. ^ Evenson, page 95
  30. ^ The telephone Gambit, by Seth Shulman (2008), page 211.
  31. ^ Evenson, page 99.
  32. ^ Evenson, page 98.
  33. ^ Evenson, page 100.
  34. ^ Burton Baker, pages 90-91

Bibliography

  • Evenson, A. Edward (2000), The Telephone Patent Conspiracy of 1876: The Elisha Gray - Alexander Bell Controversy, McFarland, North Carolina, 2000. ISBN 0-7864-0883-9
  • Baker, Burton H. (2000), The Gray Matter: The Forgotten Story of the Telephone, Telepress, St. Joseph, MI, 2000. ISBN 0-615-11329-X
  • Shulman, Seth (2008), The Telephone Gambit, W. W. Norton & Company, New York, 2008. ISBN 978-0-393-06206-9
  • Rothman, Tony (2003), Everything's Relative, Wiley, 2003. ISBN 0-471-20257-6

Further reading

  • Meyer, Ralph & Carlson, Bernard (2008) "The Bell-Gray Controversy" (alternate title of "Controversy over the World's Most Lucrative Patent" on the contents page), American Heritage's Invention & Technology ; Fall 2008 edition, Vol.23 Iss.3, Pg. 14.
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