Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 124

Alexander Graham Bell is credited with inventing the practical telephone, which can be defined as a device for transmitting human speech by electricity. The history of the development of the telephone shows that there were several others working on similar projects at the same time, such as Elisha Gray and Thomas Edison. For example, in the United Kingdom, some consider Gray as the telephone’s inventor. As a result, the U.S. patent that was ultimately issued on Bell’s telephone, and his ensuing telephone patents, were the subject of 600 patent infringement lawsuits, all won by Bell, and all upholding his patents.

Alexander Graham Bell was born in Edinburgh, Scotland, on March 3, 1847. His father, Alexander Melville Bell, was a teacher who taught deaf and mute students how to speak. Bell’s father also created a code of symbols, indicating positions of the lips, tongue, and throat in making sounds, helping the deaf learn to speak. This was known as “visible speech.”

Alexander’s mother, Eliza Bell, was practically totally deaf, and by pressing his lips against his mother’s forehead, Bell discovered that he could make the bones in her head resonate to his voice. Bell was also a talented pianist who learned early on to define and discriminate pitch. He noticed that a chord struck on one piano would be echoed by a piano in another room, and that entire chords could be transmitted through the air, vibrating at the receiving end at the same pitch as transmitted. This observation eventually was involved in the development of the telephone.

After Bell’s oldest and youngest brothers died of tuberculosis in Scotland, the family moved to Tutelo Heights, near Brantford, Ontario, Canada. Bell’s father subsequently took a position in Boston, Massachusetts, teaching deaf children to speak, and his son began a successful teaching career in Boston. His students included George Sanders, the son of a successful leather merchant, and Mabel Hubbard, the daughter of a successful lawyer. Later in life, Mr. Hubbard and Mr. Sanders were to become Bell’s chief financial backers, and Mabel Hubbard became his wife.

The early experiments of Bell that eventually led to the invention of the telephone did not even involve thinking about a telephone. Bell was trying to develop a multiple telegraph, one that could be used to convey several messages simultaneously, each at a different pitch. Telegraphy at that time involved transmission of an electrical current that was interrupted in a pattern known as the Morse Code. In the 1870s, Bell, Edison, and Elishia Gray were all seeking a telegraph device that could send upward of four messages simultaneously. Bell’s work on his multiple telegraph stemmed from Helmholtz’s device, which used a single tuning fork that continually interrupted the circuit and a resonator that kept the other tuning forks in the system in constant vibration. The Helmholtz device was used to produce vowel sounds using electromechanical means, and Bell assumed that if the vowels could be transmitted over wires, so could other sounds, including the consonants and musical tones.

Bell found it difficult to determine how to make and break the current at the precise pitch required as the pitch was conveyed along a telegraph wire. While on vacation in 1874, he constructed an “ear phonoautograph” using a hay reed and the ear bones from a dead man mounted on a wooden frame. Sounds delivered to the ear bones caused the hay reed to trace the shape of the sound waves on a smoked glass. Using his previous knowledge of electricity, speaking machines, and pitch, Bell was inspired to conclude that the smoked glass could be rolled back and forth beneath the hay reed. This also led Bell to conclude that sound could be translated into visible waves, from which he theorized that vibrations of a reed could be transformed into an undulating electrical current and reproduced as sound. The undulating current concept was crucial to his later development of the telephone.

Bell initially conceived of a device made of a plurality of reeds extending over a magnet. As the reeds responded to one’s voice, they would ultimately vibrate in the direction of and then away from the magnet, creating the undulating current. This “harp apparatus,” as Bell himself called it, did not resemble the telephone that he ultimately developed.

In 1874, Bell sketched, but never built, his “harp apparatus,” showing how undulating sound waves could be translated into electric currents of the same form. This sketched apparatus included two permanent horseshoe magnets with two steel reeds on each. Bell conceived that this would serve as a transceiver for two separate signals, the signals corresponding to each of the reeds. Bell used permanent magnets in his harp apparatus rather than the electromagnets he had previously used in his multiple telegraph experiments. He reasoned that if a magnet is moving away from a coil half of the time and moving toward the coil the other half of the time, the induced current should imitate the vibrating magnet, since the flux would be increasing half of the time when the magnet moves toward the coil, and decreasing the remaining half of the time when the magnet moves away from the coil. This periodic increasing and decreasing of the flux at discrete intervals would produce the same periodic induced current in the coil.

Bell postulated a device with a first steel reed having a specific harmonic mounted on a horseshoe‐shaped permanent magnet, and a second reed having a different harmonic on the same magnet (a transceiver). He then thought of placing a third reed having the same harmonic as the first reed, and a fourth reed having the same harmonic as the second reed on a duplicate transceiver. When the first reed was vibrated, the third reed on the transceiver would also vibrate. Likewise, when the second reed was vibrated, the fourth reed on the transceiver also vibrated.

When the first reed vibrated toward the coil, the current became more positive or negative, depending upon which pole of the magnet the first reed was on and the winding pattern of the underlying coil. When the first reed vibrated away from the coil, an opposite current was induced. The signal was sent across as a sinusoidal wave, which was precisely the same waveform produced by the phonautograph on smoked glass.

This is what Bell referred to as his “undulating current,” which became the primary feature of his first telephone patent, issued in 1876. This wave expressed in a graphical manner the vibratory movement of the air while the reeds were producing their musical tones, and the vibrations of the individual reeds attached to the permanent magnet resulted in a single undulating current waveform. Bell determined that if the waves from the two reeds could be combined to produce a more intricate wave, the proper combination of waves could be used to produce all sounds.

Bell used this mental model to develop the postulate that undulating waves traced into the smoked glass in his phonautograph could be transformed into undulating electric current, and then be reproduced as sound. This use of undulating current was different from the intermittent current used in telegraphy to produce dots and dashes. Bell also discovered that by combining undulating currents, the result would be a different sine curve produced for every combination of sounds, allowing discrimination among different messages. His future father‐in‐law, Gardiner Hubbard, who was his primary backer, urged Bell to direct his efforts toward the multiple telegraph, and forget trying to produce a “speaking” telegraph.

Bell’s initial multiple transmitter and receiver (transceiver) made and broke contact with a dish of mercury that ultimately completed an interrupted circuit. At the receiving end, electromagnets attracted the tuning fork each time the circuit was completed, thus causing the fork to vibrate. Bell had thought through a complete system for his multiple telegraphy device, and had succeeded in patenting different parts of it by the spring of 1875. A key part of his thinking was that the multiple telegraphy system would transmit an undulatory current, as opposed to the intermittent or make‐or‐break current used in single‐transmission telegraphy.

By June 2, 1875, Bell had constructed three multiple telegraph stations, each with three tuned relays. When Bell caused one of the reeds at the first station to vibrate, the corresponding reed at the second station also vibrated. His assistant, Mr. Watson, who was in another room with the third corresponding reed, advised Bell that the reed was stuck. To release the stuck reed, Watson vibrated it with his finger, and Bell noticed that the corresponding reed at Station II vibrated violently. Bell then placed his ear next to each of the other reeds at the second station in succession, and heard both the overtones and the pitch of the tuned reeds. He concluded from this incident that magneto‐electric undulating currents generated by the vibration of an armature in front of an electromagnet could produce audible effects that could be utilized for multiple telegraphy and speech transmission. Later, Mr. Watson was to comment that the speaking telephone was born as a result of this experiment.

However, extensive work did remain before a workable electric telephone was developed. As a result of the stuck reed, Bell learned that a single reed, when dampened or stuck, could also induce a current that was capable of transmitting complex vibrations or sounds over a distance, and the multiple reeds of the harp structure were not necessary. Bell then asked Mr. Watson to construct a device in which a reed relay was attached to a membrane or diaphragm having a speaking cavity. As one spoke into the cavity, the membrane vibrated, and these vibrations were translated into electric current by the dampened reed. The current thus generated was received by a similar device at the end of an electrical wire. The receiving device produced mumbling, rather than intelligible speech. However, Bell and Watson considered that they were heading in the right direction.

On January 20, 1876, Bell signed a patent application directed to his use of electrical undulations induced by the vibration of a body capable of inductive action to transmit sound. This was before speech had been transmitted electrically. Bell’s patent application was submitted to the United States Patent Office on February 14, 1876, four days after his 29th birthday, and merely a few hours before Elisha Gray submitted a caveat for a speaking telegraph. (A caveat was a document submitted by a potential inventor with the U.S. Patent Office, setting forth a broad outline of an invention they intended to make, but which was not complete. The use of caveats in the United States terminated circa 1909.)

When the Bell patent application was filed, he and Watson had still not developed a working device. On March 10, 1876, Bell removed the electromagnet from the device he and Watson had constructed that produced the mumbling transmission, and substituted a dish of water that was used as a spark arrester; i.e., the water acted as a resistance that prevented sparks in the telegraph relay. These liquid experiments led to the famous quote, “Watson, come here. I want you,” which occurred on March 10, 1876. Thus, when Bell obtained his U.S. Patent No. 174,465 on March 7, 1876, it was three days before he finally achieved a working telephone.

Claim 5 of Bell’s patent was rather broad, and reads as follows:

5. The method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sound, substantially as set forth.

Subsequently, the basic Bell telephone patent was subject to 600 lawsuits of various kinds, mainly suits filed by Bell to prevent others from infringing on his patent.

The first lawsuit filed under the Bell patents was the so‐called Dowd case, in which Western Union was the alleged primary infringing defendant. This lawsuit was filed on September 12, 1878, in the Circuit Court of the United States for the District of Massachusetts, and there is no published court decision because the case was settled after trial while the judge had the case under advisement. This first lawsuit turned out to be the heart of the ensuing litigation that took place over the next 20 years.

Bell had very little in the way of documents, correspondence, sketches, or drawings to help his memory regarding his work in developing the telephone. In his search for such documentation, Bell even asked his wife, Mabel, for the keys to a bureau where she kept his love letters written to her before they were married, in an attempt to find any statement that he might have made in those letters that would help fix the dates of his telephone experiments. Bell told Mabel that he did not have the remotest intention of publishing any of his love letters.

In the litigation against Western Union, Bell’s attorney did not base his strategy on the concept of undulatory current as something that was new, but on the use of electricity in general for transmitting speech, as exemplified by the instruments described in the Bell patents. This strategy worked, because the Western Union lawyers had built their case around showing that undulatory currents were not new with Bell. Bell’s case, however was predicated on the application of undulatory currents. This led to the Bell Company winning control, with their patents, of the basic principle of telephony, not merely the particular devices used in telephony.

However, Bell still needed to present documentary evidence showing that he had worked on the telephone. During the spring and summer of 1879, Mabel Bell, his wife, and her cousin Mary Bletchford, went through all the old correspondence between Bell and his then fiancé, and also the notebooks that Bell was able to maintain, and found nothing. In the movie The Story of Alexander Graham Bell (1939), the Hollywood version of the story shows that the entire lawsuit depended upon one love letter submitted to the court by Mabel Bell. Thus, Hollywood used poetic license to turn a patent litigation matter into an interesting love story.

The lawsuit against Western Union was eventually settled before decision, when Western Union assigned its telephone patents to the Bell Company in exchange for Western Union being awarded 20% of rental receipts by Bell for the next 17 years. The Edison carbon transmitter patent, along with additional improvement patents, were obtained by the Bell Company as a result of the settlement, along with the network of agencies and customers of Western Union. Thus, after the settlement, the stock of American Bell Telephone Company nearly doubled in a few days.

The Bell Company’s decision to settle the case was predicated not on the theory that there was any weakness in Bell’s patents, but upon the fact that Western Union had brought other lawsuits against the Bell Company for infringement of later improvement patents, such as the Edison transmitter. As in any litigation, the parties considered that victory by either side is not a certainty, but distraction and the expense of resources are certain. Therefore, Bell and his advisors felt that the settlement was the best business choice.

Two other Bell patent‐related lawsuits are worthy of mention in this treatise. The first is the case of American Bell Telephone Company v. Globe Telephone Company, Antonio Meucci, and others, 31 Fed. 728 (SDNY, 1887). In this case, the defendants were attempting to invalidate broad Claim 5 of the basic telephone patent No. 174,465 obtained by Bell on March 7, 1876. The primary evidence offered in the defendant’s attempt to invalidate the Bell patent was Meucci’s allegation that he had developed a speaking telephone for domestic use as early as 1871, and since he was too poor to obtain a patent, his invention was made public by being published in Eco D’Italia, a local newspaper for Italian immigrants in New York in the latter half of the 19th century. Meucci had filed a caveat in the United States Patent Office on December 28, 1871, describing his device. The Globe Company, at the time of the suit, had never constructed any telephones, but was obtaining money from investors, after telling the investors that Globe had acquired patents that would be used to defeat the Bell patents, and that Globe’s patents would protect the purchasers or licensees against the Bell Company patents. The Globe Company realized that its own patents were worthless unless the Bell patent could be invalidated, and thus did not manufacture any telephones, so that the Bell Company could not accuse them of infringement. At the time of the trial, Mr. Meucci did not have any of his original devices to offer in evidence to show what it was he had developed, since his wife had sold them at a “garage sale” to raise money. The Meucci caveat was originally filed in 1871; it was renewed in December 1882, and again in December 1883. During that time, Mr. Meucci did not make any improvements on the device that was disclosed in his 1871 caveat.

Upon reviewing the evidence, the court in the Globe case held that the Meucci device resulted in nothing beyond conveying speech mechanically by means of a wire telephone. His caveat disclosed a metallic conductor as a sound conveying medium, and he merely supposed that by electrifying the apparatus or the operator, he could obtain a better result. He did not communicate his invention to anyone else who could appreciate it or assist him in perfecting and introducing his invention to the public, but between 1859 and 1871, he did file several patent applications for other inventions. Meucci was also in close association with one William E. Rider, who paid the expenses of his experiments. Therefore, the court in the Bell v. Globe case disregarded Mr. Meucci’s claims of poverty. The relation with Rider continued until 1867, when Mr. Rider became convinced that Meucci’s inventions were not sufficiently practical or profitable.

The court further held that the caveat of Meucci did not describe any elements of an electric speaking telephone, but that Meucci employed the then well‐known physical conducting effect of metallic conductors to convey sound, and enhanced the results by electrically insulating both the conductor and the communicating parties. The caveat filed by Meucci consisted of isolating two persons by placing them upon glass insulators, and putting them in communication by means of a telegraph wire. He then amended this statement by stating that the person sending the message was insulated, with the person receiving the signal in free electrical communication with the ground. These conditions could also be reversed.

The court held that Meucci’s device consisted of a mechanical telephone comprising a mouthpiece and an earpiece connected by a wire, and that beyond this the invention of Meucci was only imagination. The patent attorney who prepared the caveat for Mr. Meucci told Meucci that his idea gave promises of usefulness, but would require many experiments to prove the reality of his concept. This case, as were all of the other cases in which the validity of the original Bell telephone patent was in dispute, was resolved by upholding the validity of the Bell patent.

Despite this court decision, over 100 years later, on June 11, 2002, the United States House of Representatives in Washington, D.C. passed a resolution honoring the achievements of Antonio Meucci. This resolution briefly sets forth the fact that Meucci developed his speaking device in 1871 so he could communicate with his ailing wife on a different floor of his house, that he published a description of his invention in New York’s Italian language newspaper at the time, and that he was too poor to obtain patent protection or commercialization of his invention. The resolution also implies that Meucci submitted his earlier models to Western Union, who then lost them, but that before they were lost, Alexander Graham Bell conducted experiments in the same laboratory at Western Union where Meucci’s earlier materials were stored. The resolution also refers to a lawsuit filed by the United States Government on January 13, 1887, to annul the Bell patent on the grounds of fraud, which lawsuit is discussed a few paragraphs below. The resolution concludes that if Meucci had been able to pay the $10 fee to maintain his caveat after 1874, no patent on the telephone would have been issued to Alexander Graham Bell.

My continuing research led me to the rebuttal comments of Edwin S. Grosvenor, published at http://www.alecbell.org/meuccimemo.html. In his memo, Mr. Grosvenor refers back to the case of American Bell Telephone Company v. Globe and Meucci, and points to those facts in the court’s decision that would completely repudiate the grounds set forth in the 2002 resolution of the U.S. House of Representatives. The Grosvenor article points out that the Meucci caveat disclosed a mouthpiece and an earpiece connected by a taut wire that transmitted vibrations of sounds mechanically (not electrically) over the wire. The Grosvenor article also states that Meucci had financial help and he was not destitute, and could have commercialized his invention had it been worth anything. Grosvenor thus concludes that the Meucci caveat, and indeed his “invention,” does not describe or suggest any of the elements of electrical communication of voice, or the principle of undulating current that is set forth in the broadest claim of the Bell patent.

Upon my review of the American Bell Telephone Company v. Globe and Meucci court decision of July 19, 1887, I conclude that the comments of Mr. Grosvenor are more likely correct in comparison to the statements by the United States House of Representatives. I draw this conclusion knowing full well that Mr. Grosvenor is the great‐grandson of Alexander Graham Bell.

Another incident that is of interest is the lawsuit filed by the United States Government, referred to in the House of Representatives resolution discussed above, attempting to invalidate the Bell telephone patents on the grounds that they were obtained by fraud. One Dr. James Rogers of Tennessee conceived that a legal challenge to the Bell patents, having merit or not, would protect infringers for a period of time, even if the challenge was not legitimate. The purpose was to delay the American Bell Telephone Company from successfully suing infringers until the Bell patents expired. Rogers’ son, an electrician, came up with a series of inventions, which apparently were primarily a figment of his imagination. Casey Young, a former member of the U.S. Congress from Tennessee, and several associates incorporated the Pan‐Electric Company, and 10% of the stock was given to Augustus H. Garland, a former governor of Arkansas, and at that time a Senator from Arkansas. Garland was also appointed as the attorney for Pan‐Electric Company. Garland assured investors that the Rogers patents covered devices that did not infringe on the Bell patents, and thus was able to raise substantial investment capital for Pan‐Electric.

In 1884, the Pan‐Electric organizers convinced the United States House of Representatives to enact a bill granting authorization to the federal government to file lawsuits to invalidate patents under a listing of potential circumstances. The Senate failed to pass the act, but Grover Cleveland was elected President later that year, and he appointed none other than Augustus H. Garland, attorney for Pan‐Electric, as United States Attorney General. The Pan‐Electric principals asked Garland to file a lawsuit in the name of the United States seeking annulment of Bell’s patents on the grounds that Bell had obtained his patents by fraud, and that Bell was not the first inventor of the telephone. Garland then left on a hunting trip in Arkansas, and the Solicitor General, one of the Attorney General’s staff members, hastily granted the request while the Attorney General was away. The Secretary of the Interior upheld the decision to file the lawsuit, applying the reason that charges of fraud were being made against federal officials in the Patent Office, and the truth of these charges should be tested by the filing of a lawsuit at government expense against the American Bell Telephone Company.

The government lawsuit was filed in January 1887, and the initial government effort in the litigation to enjoin Bell from filing further lawsuits against infringers did not succeed. Previously, in 1885, the New York newspapers had exposed the intricate stock holdings of Pan‐Electric by the United States Attorney General, members of Congress, and past and present members of the Federal Executive Branch. A congressional committee investigated the matter and concluded that Garland was not guilty of any misdeeds. Grover Cleveland retained Garland as Attorney General.

The government case lumbered through the litigation process, without ever reaching a result. The lawyer in charge of the government’s case passed away in 1896, and the government let the case drop. During 1892, Bell spent a total of nine weeks, at intervals, testifying in the government lawsuit and providing a complete account of the development work that led to the invention of the telephone. In 1908, the American Bell Telephone Company printed the complete testimony of Alexander Graham Bell, both direct and cross‐examination, in a 445‐page document.

The government case at an interim point reached the United States Supreme Court on Bell’s motion to dismiss the lawsuit. The government case against Bell was decided by the Supreme Court on November 12, 1888, which remanded the case to the lower court for further litigation. See United States v. The American Bell Telephone Company, 128 U.S. 315 (1888). The Court held that if Bell was aware when he filed his patent applications that the same subject matter had been previously discovered and put in operation by other persons, he was guilty of a fraud upon the public, and that the monopoly that the patents granted to him ought to be revoked and annulled. The Supreme Court held that the federal courts do have the power to grant such relief when it is proven that patents were obtained by fraud. The rationale of the Court’s decision is that to obtain a patent, the inventor must know that he or she was the original inventor. However, the case never reached the point where the fraud allegations in the complaint were proven to be true or false.

The United States House of Representatives in its resolution of June 11, 2002, states merely that the government of the United States filed the lawsuit, and that the Supreme Court found the complaint viable and remanded the case for trial. The House of Representatives resolution, in my opinion, leaves out many of the salient details, and presents a disjointed and incorrect view of the invention of the telephone.

Bell subsequently worked on transmitting sounds on a beam of light, a precursor of today’s fiber optic systems. He also did work on techniques for teaching speech to the deaf, and was instrumental in 1888 in founding the National Geographic Society. The entire story of Alexander Graham Bell, including his involvement in other inventions such as aircraft, would unduly lengthen this chapter. Therefore, the reader is directed to the resources listed in the Bibliography to gain a further understanding of the genius and works of Alexander Graham Bell.

Bell eventually obtained 18 patents in his own name, and 12 additional patents in which he was a joint inventor. Alexander Graham Bell died on August 2, 1922, near his home in Nova Scotia, Canada.