Dolbear v. American Bell Telephone Company

delivered the opinion of the court.

The important question which meets us at the outset in each of these cases is as to the scope of the fifth claim of the patent of March 7, 1876, which is as follows :

“ 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 sounds, substantially-as set forth.”

It is contended that this embraces the art of transferring to or impressing upon a current of electricity the vibrations of air produced by the human voice in articulate speech, in a way that the speech will be carried to and received by a listener at a distance on the line of the current. Articulate speech is not mentioned by name in the patent. The invention, as described, “consists in the employment of a vibratory or undulatory current of electricity, in contradistinction to a merely intermittent or pulsatory current, and of a method of, and apparatus for, producing electrical undulations upon the line wire.” A “ pulsatory current ” is described as one “ caused by sudden or instantaneous changes of intensity,” and ah “ electrical undulation ” as the result of “ gradual changes of intensity exactly analogous to the changes in the density of air occasioned by simple pendulous vibrations.”

. Among the uses to which this art may be put is said to be the “'telegraphic transmission of noises or sounds of any kind," and it is also said that the undulatory current, when created in *532 the way pointed out, will produce through the receiver at the receiving end of the line “ a similar sound to that uttered into ” the transmitter at the transmitting end. One of the means of imparting the necessary vibrations through the transmitter, to produce the undulations, may be the human voice. Articulate speech is certainly included in this description, for it is an “ uttered ” “ sound ” produced by the “ human voice.”

It is contended, however, that “ vocal sounds” and “articulate speech ” are not convertible terms, either in acoustics or in telegraphy. It is unnecessary to determine whether this is so or not. Articulate speech necessarily implies a sound produced by the human voice, and, as the patent on its face is for the art of changing the intensity of a continuous current of electricity by the undulations of the air caused by sonorous vibrations, and speech can only be communicated by such vibrations, the transmission of speech in this way must be included in the art. The question is not whether “ vocal sounds ” and “ articulate speech ” are used synonymously as scientific terms, but whether the sound of articulate speech is one of the “ vocal or other sounds ” referred to in this claim of the patent. We have no hesitation in saying that it is, and that if the patent can be sustained to the full extent of what is now contended for, it gives to Bell, and those who claim under him, the exclusive use of his art for that purpose, until the expiration of the statutory term of his patented rights.

In this art — or, what is the same thing under the patent law, this process, this way of transmitting speech • — • electricity, one of the forces of nature, is employed ; but electricity, left to itself, will not do what is wanted. The art consists in so controlling the force as to make it accomplish the purpose. It had long been believed that if the vibrations of air caused by the voice in speaking could be reproduced at a distance by means of electricity, the speech itself would be reproduced and understood. How to do it was-the question.

Bell discovered that it could be done by gradually changing the intensity of a continuous electric current, so as to make it correspond exactly to the changes in the density of the air caused by the sound of the voice. This was his art. He then *533 devised a way. in which, these changes of intensity conld be made and speech actually transmitted. Thus his art was put in a condition for practical use.

In doing this, both discovery and invention, in the popular sense of those terms, were involved; discovery in finding the art, and invention in devising the means of making it useful. For such discoveries and such inventions the law has given the discoverer and inventor the right to a patent — as discoverer, for the useful art, process, method of doing a thing he has found; and as inventor, for the means he has devised to make his discovery one of actual value. Other inventors may compete with him for the ways of giving effect to the discovery, but the new art he has found will belong to him and those claiming under him during the life of his patent. If another discovers a different art or method of doing the same thing, reduces it to practical use, and gets a patent for his discovery, the new discovery will be the property of the new discoverer, and thereafter the two will be permitted to operate each in his own way without interference by the other. The only question between them will be whether the second discovery is in fact different from the first.

The patent for the art does not necessarily involve a patent for the particular means employed for using it.' Indeed, the mention of any means, in the specification or descriptive portion of the patent, is only necessary to show that the art can be used; for it is only useful arts — arts which may be used to advantage — that can be made the subject of a patent. The language of the statute is, that “ any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter,” may obtain a patent therefor. Eev. Stat. §4886. Thus, an art — a process — which is useful, is as much the subject of a patent, as a machine, manufacture, or composition of matter. Of this there can be no doubt, and it is abundantly supported by authority. Corning v. Burden, 15 How. 252, 267; Cochrane v. Deener, 94 U. S. 780, 787, 788; Tilghman v. Proctor, 102 U. S. 707, 722, 724, 725; Fermentation Co. v. Maus, 122 U. S. 413, 427, 428.

What Bell claims is the a- of creating changes of intensity *534 in a continuous current of electricity, exactly corresponding to the changes of density in the air caused by the vibrations which accompany vocal or other sounds, and of using that electrical condition thus created for sending and receiving articulate speech telegraphically. For that, among other things, his patent of 1876 was in our opinion issued; and the point to be decided is, whether as such a patent it can be sustained.

In O’Reilly v. Morse, 15 How. 62, it was decided that a claim in broad terms (p. 86) for the use of the motive power of the electric or galvanic current called “ electro-magnetism, however developed, for making or printing intelligible- characters, letters, or signs, at any distances,” although “ a new application of that power ” first made by Morse, was void, because (p. 120) it was a claim “ for a patent for an effect produced by the use of electro-magnetism, distinct from the process or machinery necessary to produce it; ” but a claim (p. 86) for “ making use of the motive power of magnetism, when developed by the action of such current or currents, substantially • as set forth in the foregoing description, ... as means of operating or- giving motion to machinery, which may be used to imprint signals upon paper or other suitable material, or to produce sounds in any desired manner, for the purpose of tele- . graphic communication at any distances,” was sustained. The effect of that decision was, therefore, that the use of magnetism as a motive power, without regard to the particular process With which it was connected in the patent, could not be claimed, but that its use in that connection could.

In the present case the claim is not for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current in a closed circuit into a certain specified condition suited to the transmission of vocal and. other sounds, and using it in that condition for that purpose. So far as at present known, without this peculiar change in its condition it will not serve as a medium for ti.e transmission of speech, but with the change it will. Bell was the first to discover this fact, and how to put such a current in such a condition, and what he claims is its use in that condition *535 for that purpose, just as Morse claimed his current in his condition for his purpose. We see nothing in Morse’s case to defeat Bell’s claim; on the contrary, it is in all respects sustained by that authority. It may be that electricity cannot be used at all for the transmission of speech except in the way Bell has discovered, and that therefore, practically, his patent gives him its exclusive use for that purpose, but that does not make his claim one for the use of electricity distinct from the particular, process with which it is connected in his patent. It will, if true, show more clearly the great importance of his discovery, but it will not invalidate his- patent.

But it is insisted that the claim cannot be sustained, because when the patent ivas issued Bell had not in fact completed his discovery. While it is conceded that he was acting on the right principle and had adopted the true theory, it is claimed that the discovery lacked that practical development’ which was necessary to make it patentable. In the language of counsel “there was still work to be done, and work calling for the exercise of the utmost ingenuity, and calling for the very highest degree of practical invention.”

It is quite true that when Bell applied for his patent he had never actually transmitted telegraphically spoken words so that they could be distinctly heard and understood at the receiving end of his line, but in his specification he did describe accurately and with admirable clearness his process, that is to say, the exact electrical condition that must be created to accomplish his purpose, and he also described, with sufficient precision to enable one of ordinary skill in such matters to make it, a form of apparatus which, if used in the way pointed out, would produce the required effect, receive the words, and carry them to and deliver them at the appointed place. The particular instrument-which lie had and which he used in his experiments did not, under the circumstances in which it was tried, reproduce the words spoken, so that they could be clearly understood, but the proof is abundant and of the most convincing character, that other instruménts, carefully constructed and made exactly in accordance with the specification, without any additions whatever, have operated *536 and will operate successfully. A good mechanic of proper skill in matters of the kind can take the patent and, by following the specification strictly, can, without more, construct an apparatus which, when used in the way pointed out, will do all that it is claimed the method or process will do. Some witnesses have testified that they were unable to do it. This shows that they, with the particular apparatus they had and the skill they employed in its use, were not successful; not that others, with another apparatus, perhaps more carefully constructed or more skilfully applied, would necessarily fail. As was said in Loom Co. v. Higgins, 105 U. S. 580, 586, “ when the question is, whether a thing can be done or not, it is always easy to find persons ready to show how not to do it.” If one succéeds, that is enough, no matter how many others fail. The opposite results will show, that in the one case the apparatus used was properly made, carefully adjusted, with a knowledge of what was required, and skilfully used, and that in the others it was not.

The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection. It is enough if he describes his method with sufficient clearness and precision to enable those skilled in the matter to understand what the process is, and if he points out some practicable way of putting it into operation. This Bell did. He described clearly and distinctly his process of transmitting speech telegraphically, by creating changes in the intensity of a continuous current or flow of electricity in a closed circuit, exactly analogous to the changes of density in air occasioned by the undulatory motion given to it by the human voice in speaking. He then pointed out two ways in which this might be done : one by the “vibration or motion of bodies capable of inductive action, or by the vibration of the conducting wire itself in the neighborhood of such bodies; ” and the other “ by alternately increasing and diminishing the resistance of the circuit, •or by alternately increasing and diminishing the power of the battery.” He then said he preferred to employ for his purpose “ an electro-magnet, .' . . having a coil upon only one of *537 its legs,” and he described the construction of the particular apparatus shown in the patent as Fig. 7, in which the electromagnet, or magneto method, was employed. This was the apparatus which he himself used without entirely satisfactory results, but which Prof. Cross, Mr. Watson, Dr. Blake, Prof. Pope, and others testify has done, and will do, what was claimed for it, and transmit speech successfully, but not so well indeed as another constructed upon the principle of the microphone or the variable resistance method.

An effort was made in argument to confine the patent to the magneto instrument, and such modes of creating electrical undulations as could be produced by that form of apparatus, the position being that such an apparatus necessarily implied “ a closed circuit incapable of being opened, and a continuous current incapable of being intermittent.” But this argument ignores the fact that the claim is, first, for the process, and, second, for the apparatus. It is to be read, 1, as a claim for “ the method of 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 sounds, substantially as set forth; ” and, 2, as for “the apparatus for transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, . . . substantially as set forth.” The method, “ as herein described,” is to cause gradual changes in the intensity of the electric current used as the medium of transmission, which shall be exactly analogous to the changes in the density of the air, occasioned by the peculiarities,in the shapes of the undulations produced in speech, in the manner “ substantially as set forth; ” that is to say, “ by the vibration or motion of bodies capable of inductive action, or by the vibration of the conducting wire it'self in the neighborhood of such bodies,” which is the magneto method ; or “ by alternately increasing and diminishing the resistance of the circuit, or by alternately increasing and diminishing the power of the battery,” which is the variable resistance method. This is the process which has ■been patented, and it may be operated in either of the ways set forth. The current must be kept closed to be used success *538 fully, but this does not necessarily imply that it must be so produced or so operated upon, as to be incapable of being; opened. If opened it will fail to act for the time being, ,and the process will be interrupted; but there is nothing in the patent which requires it to be operated by instruments which are incapable of making the break.

' The apparatus, “as herein described,” which is included in the claim; is undoubtedly one in which an electro-magnet is employed, and constructed “substantially as.set forth” in the specification. One acting on the- variable resistance mode is not described, further than to say that the vibration of the conducting wire in mercury or other liquid included in the circuit occasions undulations in the current, and no other special directions are given as td the manner in which it must be constructed. .The patent is both for the magneto and variable resistance methods, and for the particular magneto apparatus which is described, or its equivalent. There is no patent for any variable resistance apparatus. It is-undoubtedly true that when Bell got his patent he thought the magneto method was the best. Indeed, he said, in express terms, he preferred it, but that does not exclude the use of the other if it turns out to be the most desirable way of using the process under any circumstances. Both forms of apparatus operate on a closed circuit by gradual changes of intensity, and not by alternately making and breaking the circuit, or by sudden and instantaneous changes, and they each require to be so adjusted as to prevent interruptions. If they break it is a fault, and the process stops until the connection is restored.

It is again said, that the claim, if given this broad construction, is virtually “ a claim for speech transmission by transmitting it; or, in other words, for all such doing of a thing as is' provable by doing it.” It is true that Bell transmits speech by transmitting it, and that long before he did so it was believed by scientists that it could be done by means of electricity, if the requisite electrical effect could be produced. Precisely how that subtle force operates under Beil’s treatment, or what form it. takes, no one can tell. All we know is that he found out that, by changing the intensity of a contin *539 nous current so as to make it correspond exactly with the changes in the density of air caused by sonorous vibrations, vocal and other sounds could be transmitted and heard at a distance. This was the thing to be done, and Bell discovered the way of doing it. He uses electricity as a medium for that purpose, just as air is used within speaking distance. In effect he prolongs the air vibrations by the use of electricity. No one. before ■ him had found out how to use electricity with the same effect. To use it with success it must be put in a certain condition. What that condition was he was the first to discover, and with his discovery he astonished the scientific world. Prof. Henry, one of the most eminent scientists of the present century, spoke of it as “ the greatest marvel hitherto achieved by the telegraph.” The thing done by Bell was “ transmitting audible speech through long telegraphic lines,” and Sir William Thomson, on returning to his home in England, in August or September, 1876, after seeing at the Centennial Exposition, in Philadelphia, what Bell had done and could do by his process, spoke in this way of it to his countrymen : “ Who can but admire the hardihood of invention which devised such very slight means to realize the mathematical conception, that, if electricity is to convey all the delicacies of quality which distinguish articulate speech, the strength of its current must vary continuously, as nearly as may be, in simple proportion to the velocity of a particle of air engaged in constituting the sounds.” Surely a patent for such a discovery is not to be confined to the mere means he improvised to prove the reality of his conception.

We come now to consider the alleged anticipation of Philipp Peis.' And here it is to be always kept in mind that the question is, not whether the apparatus devised by Peis to give effect to his theory can be made, with our present knowledge, to transmit speech, but whether Eeis had in his time found out the way of using it successfully for that purpose; not as to the character of the apparatus, but as to the mode of treating the current of electricity on which the apparatus is to act, so as to make that current a medium for receiving the vibrations of air created by the human voice in articulate speech at *540 one place, and in effect delivering them at the ear of a listener in another place. Bell’s patent is not alone for the particular apparatus he describes, but for the process that apparatus was designed to bring into use. His patent would be quite as good if he had actually used Reis’s apparatus in developing the process for which it was granted.

That Reis knew what had to be done in order to transmit speech by electricity is very apparent, for in his first paper he said: “As soon as it is possible to produce, any where and in any manner, vibrations whose curves shall be the same as those of any given tone or combination of tones, we shall receive the same impression as that tone or combination of tones would have produced on us.” Bourseul also knew it before Reis, for, in a communication published in a Paris journal in 1854, he said: “ Reproduce precisely these vibrations,” to wit, the vibrations made by the human voice in uttering syllables, “and you will reproduce precisely these syllables.”

Reis discovered how to reproduce musical tones; but he did no more. He could sing through his apparatus, but he could not talk. From the beginning to the end he has conceded this. In his first paoer he said: “ Hitherto it has not been possible to reproduce the tones of human speech with a distinctness sufficient for every one. The consonants are for the most part reproduced pretty distinctly, but the vowels as yet not in an equal degree. The cause of this I will attempt to explain. According to the experiments of Willis, Helmholtz, and others, vowel tones can be produced artificially, if the vibrations of one body are from time to time augmented by those of another, something as follows: An elastic spring is set in vibration by the blow of a tooth on a toothed wheel; the first vibration is the greatest, and each subsequent one is smaller than the preceding. If, after a few vibrations of this kind, (the spring not coming to a rest in the mean time,) the tooth wheel imparts a new stroke, the following vibration will be again a maximum, and so on. The pitch of the tone produced in this way depends upon the number of vibrations in a given time, but the character of the tone upon the number of swellings in the same time. . . . Our organs of speech *541 probably produce the vowels in the, same manner, through, the combined, action of the upper and lower vocal chords, or of these latter and the cavity of the mouth. My apparatus reproduces the number of vibrations, but with an intensity much less than that of the original ones; though, as I have reason to believe, to a certain degree proportional among themselves. But in the case, of these generally small variations, the difference between large and small vibrations is more difficult to perceive than in the case of the original waves, and the vowel is therefore more or less indistinct.” And again: “ I have succeeded in constructing an apparatus with which I am enabled to, reproduce the tones of various instruments, and even to a certain extent the human voice.”

No one of the many writers whose papers are found in the records claim more than this for Beis or his discoveries. Although his first paper was published in 1861, and Bell did not appear as a worker in the same field of scientific research until nearly fifteen years afterwards, no advance had been made, by the use of what he had contrived or of his method, towards the great end to be accomplished. He caused his instruments to be put on the market for sale, and both he and those whom he employed for that purpose took occasion to call attention to them by. prospectus, catalogue, and otherwise, and to describe what they were' and what they would do. In. his own prospectus, which was published in 1865 and attached to the apparatus, he says: “ Every apparatus consists . . . of two parts, the telephone proper and the receiver. . .- . These two parts áre placed at such a distance from each other that singing or toning of a ..musical instrument can be heard in no other way from one station to the other except through the apparatus.” And, “Besides the human voice there can be reproduced (according to my experience) just as well the tones of good organ-pipes from F — c, and those of the piano?’ Albert, the mechanician employed to make the instruments in his catalogue published in 1866,.enumerates among the things he has for sale “ Telephone of Beis for reproduction of tones by electricity.” In a work on electricity by Robert M. Ferguson, published by William and Robert Chambers, London *542 and Edinburgh, in 1867, it is said, in speaking of the telephone : “ This is an instrument for telegraphing notes of the same pitch. Any noise producing á single vibration of the air, when repeated regularly a certain number of times in the second (not less than thirty-two), produces, as is well known, a musical sound. ... A person when singing any note causes the air to vibrate so many times per second, the number varying with the pitch of the note he sings, the higher the note the greater being the number of vibrations. If we then by any means can get these vibrations to break a closed circuit, . . . the note sung at one station can be reproduced, at least so far as pitch is concerned, at another. Reis’s telephone (invented 1861) accomplishes this in the following way,” which is then described.

But it is needless to quote further from the evidence on this branch of the case. It is not contended that Reis had ever succeeded in actually transmitting speech, but only that his instrument was capable of it if he liad known how. He did not know how, and all his experiments in that direction were failures. With the help of Bell’s la' er discoveries in 1875 we now know why he failed.

As early as 1854 Bourseul, in his communication which has already been referred to, had said, substantially, that if the vibrations of air pi-oduced by the human voice in articulate speech could be reproduced by means of electricity at a distance, the speech itself would be reproduced and heard there. As a means of stimulating inquiry to that end he called attention to the principle on which the electric telegraph was based and suggested an application of that principle to such a purpose. lie said : The electric telegraph is based on the following principle: An electric current, passing through a metallic wire, circulates through a coil around a piece of soft iron, which it converts into a magnet. The moment the current stops, the piece of iron ceases to be a magnet. This magnet, which takes the name of electro-magnet, can thus in turn attract and then release a movable plate, which, by its to-and-fro movement, produces the' conventional signals employed in telegraphy.” Then, after referring to the mode in which speech *543 is transmitted by the vibrations of the air, he said: “Suppose that a man speaks near a movable disk, sufficiently flexible to lose none of the vibrations, of the voice; that this disk, alternately makes and breaks the connection with a battery; you may have at a distance another disk which will simultaneously execute the. same vibrations.”

That Eeis was working all the time, from the beginning to the end of his experiments, upon the principle of the telegraph as thus-suggested by Bourseul, is abundantly proven. Thus, in his first paper, after describing his cubical block apparatus,, he says: “ If now tones or combinations of tones- are produced in the neighborhoqd of the block, so that sufficiently powerful waves enter the opening a, then these sounds, cause the membrane l to vibrate. At the first condensation the hammer-like wire d is pushed back; at the rarefaction it cannot follow the retreating membrane, and the current traversing the strips remains broken, until the membrane forced by a new condensation again presses the strip ... against d.' In this way each sound wave causes a breaking and closing of the current. At each closing of the circuit the atoms of the iron wire inside the distant spiral are moved away from each other; on breaking the circuit these atoms seek to regain their position of equilibrium. When this happens, in consequence of the reciprocal actions of elasticity and inertia, a number of vibrations are produced, and they give the longitudinal sound of the rod. This is the case if the making and breaking of the current occur with comparative slowness. If they occur more rapidly than the oscillations of the iron core, due to its elasticity, the atoms cannot complete their course. The paths described become shorter in proportion as the interruptions are more frequent, but then are just as numerous, as these. The iron wire'no longer gives its longitudinal normal tone, but a tone whose pitch corresponds to the number of interruptions in a given time ,- this is- the same as saying that the rod reproduces the tone impressed upon the interrupter.”

Such was the beginning, and it was maintained persistently to the end as well by Eeis as by those who availed themselves of what he was doing. To this the Beis-Legat apparatus *544 forms no exception, for in the paper describing it Legat says : “ The operation of the apparatus described is a.s follows: When at rest the galvanic circuit is closed. When the air which is in the tube a b of the apparatus is alternately condensed and rarefied by speaking into it, (or by singing or introducing the tones of an instrument,) a movement of the membrane closing the smaller opening of the tube is produced, corresponding to such condensation or rarefaction. The lever o d follows the movements of the membrane, and opens and closes the galvanic circuit at d g, so that at each condensation of the air in the tube the circuit is opened, and at each rarefaction the circuit is closed. In consequence of this operation the electromagnet of the apparatus, in accordance with the condensations and rarefactions of the column of air in the tube ... is correspondingly demagnetized and magnetized, and the armature of the magnet is set into vibrations like those of the membrane in the transmitting apparatus.” We have not had our attention called to a single item of evidence which tends in any way to show that Reis or any one who wrote about him had it in his mind that anything else than the intermittent current caused by the opening and closing of the circuit could be used to do what was wanted. No one seems to have thought that there could be another way. All recognized the fact that the “ minor differences in the original vibrations ” had not been satisfactorily reproduced, but they attributed it to the imperfect mechanism of the apparatus used, rather than to any fault in the principle on which the operation was made to depend.

It .was left for Bell to discover that the failure was due not to workmanship but to the principle which was adopted as the basis'of what had to be done. He found that what he called the intermittent current — one caused by alternately opening and-closing the circuit — could not be made under any circumstances to reproduce the delicate forms of the air vibrations caused by the human voice in articulate speech, but that the true w'ay was to operate on an unbroken current by increasing and diminishing its intensity.. This he called a vibratory or undulatory current, not because the current was supposed to actually take that form, but because it expressed with suffi *545 cient accuracy Ms idea of a current wMch was subjected to gradual changes of intensity exactly analogous to the changes of density in the air occasioned by its vibrations. Such was his discovery, and it was new. Beis never thought of it, and he failed to transmit speech telegraphically. Bell did, and he succeeded. Under such circumstances it is impossible to hold that what Beis did was an anticipation of the discovery of Bell. To follow Beis is to fail, but to follow Bell is to succeed. The difference between the two is just the difference between failure and success. If Beis had kept on he might have found out the Avay to succeed, but he stopped and failed. Bell took up his Avorlc and carried it on to a successful result.

As to what is shoAvn to have been written and done by Dr. Yan der Weyde, it is only necessary to say that he copied Beis, and it Avas not until after Bell’s success that he found out how to use a Beis instrument so as to make it transmit speech. Bell taught him what to do to accomplish that purpose.

So as to James W. McDonough. We presume that it Avill not be claimed that he is entitled to more than he asked for in his application for a patent, filed April 10, 1876, and there a “ circuit breaker,” so adjusted as to “ break the connection by the vibrations of the membrane,” is made one of the elements of his invention. The Patent Office was clearly right in holding that he had been anticipated by Beis.

The patents of Cromwell FleetAvood Yarley, of London, England, granted on June 2, 1868, and the other .October 8, 1870, Avere for “improvements in electric telegraphs.” The objects of the invention covered by the first Avere “ to cut off the disturbance arising from earth currents, to obtain a high speed of signalling through long circuits, and, should the conductor become partially exposed, to preserve it from being eaten away by electrolytic action;” and .the object of the second was the “ increase of the transmitting power of telegraph circuits, by enabling more than one operator to signal independent messages at the same time, upon one and the same wire, to and from independent stations.” While this patentee in his specification says, “ by my invention I superpose upon *546 tbe currents used for working the ordinary telegraphs rapid undulations or waves, which do not practically alter the mechanical or chemical power of the ordinary signal currents,” and that “ these undulations are made to produce distinct and independent audible or other signals so long as these undula^ tions are produced, whether ordinary signal currents be flowing or not,” it is apparent that he uses the terms “undulations ” and “ waves ” in an entirely different sense from Bell, for his patent implies operation on the principle of the electric telegraph ; that is to say, by making and breaking the circuit. A Morse key, or something equivalent, is to be used; and besides, in the descriptive portion of the patent, it is. said: “ When the current is flowing through the coils of the electromagnet the horns of the fork h are drawn apart and the spring V loses its contact; then, as the attraction of the magnet ceases, the horns of the fork spring back; this remakes the contact, and so a continual tremor is communicated to the tuning fork.” In short, there is nothing in any part of the specification to indicate that the patentee had in his mind “ undulations ” resulting “ from gradual changes of intensity exactly analogous, to the changes in the density of air occasioned by simple pendulous vibrations,” which wa.s Bell’s discovery, and on which his art rests. Yarley’s purpose was to superpose, that is to-say, place upon the ordinary signal current another, which, by the action of the make and break principle of the telegraph, would do the work he wanted.

. Another alleged anticipation is that of Daniel Drawbaugh.

Bell got his patent March 7, 1876, and the fortunate accident which led to his discovery occurred June 2,1875. Active litigation to enforce his patented rights was begun by his company on the 12th .of September, 1878, with a suit in the Circuit Court of the United States for the District of Massachusetts, against Bichard A. Dowd. This suit was defended by the Western Union Telegraph Company, and vigorously contested.- The answer was filed November 4, 1878, setting up alleged anticipations by Gray, Edison, Dolbear and others. The record fills twelve hundred printed pages, but before a decision was reached the case was compromised and a decree *547 entered by consent. The litigation ended at some time in the latter part of the year 1879. The last deposition was taken on the 19th of' September in that year.

The next contested suit was brought in the same court on the 28th of July, 1880,. against Albert Spencer and others. An answer was filed in this case September 6, 1880, and depositions afterwards taken, some of those in the Dowd suit being used in this by stipulation. On the' 27th of June, 1881, a decision was announced by Judge Lowell sustaining the patent, upon which a decree was entered.

On the 14th of November, 1879, Abner G. Tisdel filed in the Patent Office an application for a patent for' “a new and useful improvement in speaking-telephones,” and ori the 18th of November, 1879, Frank A. Klemm also filed an application for a patent for “ a new and useful improvement in telephone-transmitters.” These inventions were transferred by assignment to Ernest Marx and Frank A. Klemm of New York City, Moritz Loth of Cincinnati, and Simon Wolf of Washington. On the 6th of March, 1880, these parties entered into a mutual agreement to the effect that “ each and all of their interests in said improvements and inventions, and the letters-patent to be issued therefor, shall be merged and consolidated as common stock in a corporate body, under the laws of either of the States of Ohio, New York, or the general laws of the United States, relating to the formation of incorporations in the District of Columbia, or of such other States or Territories as may be loand necessary hereafter.” This agreement was recorded in the Patent Office March 10, 1880.

On the 6th of May, 1880, Edgar W. Chellis, a merchant of Harrisburg, Pennsylvania, M. W. Jacobs, a lawyer at the same place, and Lysander Hill, a lawyer then residing in Washington, in the District of Columbia, made an arrangement with Daniel Drawbaugh by which they were to become jointly interested with him in his alleged telephone inventions, each to have a quarter interest. Nothing was paid for this, but each of the parties was to have one-fourth of anything that should be realized from the enterprise. On the 24th of May, 1880, Simon Wolf, one of the parties interested in the *548 Klemm and Tisdel inventions, visited Harrisburg on business with Chellis in reference to telephone matters. On the 18th of May, four daj^s before this visit, a patent was issued to Wolf and his associates upon the invention of Tisdel. While Wolf was in Harrisburg negotiations were begun with Chellis for a transfer of the Hrawbaugh inventions to the owners of those of Klemm and Tisdel. These negotiations resulted in a conditional contract of the 22d of June, by reason of which Chellis, Jacobs, Hill, and Hrawbaugh went to Washington, and there on the 21st of July, 1880, Hrawbaugh, claiming to ‘‘'have invented certain new and useful improvements in the transmission of vocal speech, and the apparatus to be used for such purpose, for which I am about to make application for letters-patent of the United States,” assigned to Klemm, Marx, Wolf, and Loth “the full and exclusive right to the said invention as fully set forth and described in the specification prepared and executed by me, dated the 21st day of July, 1880, preparatory to obtaining letters-patent of the United States therefor,” and he, at the same time, and by the same instrument, authorized and. requested the Commissioner of Patents to issue the patent to his assignees, “ each 'as assignee of one-fourth part.” ^The specification referred to in the assignment has not been put in evidence in any of the cases. In the course of taking the testimony it was called for by the Bell Company, but the counsel for the opposite party refused to produce either the original or a copy from the Patent Office. The assignment was recorded in the Patent Office July 22, 1880, and in the official digest of assignments the following notation appears: “ About to make appl’n. Spe’n dated July 21, 1880.”

On the morning of July 22, 1880, the following appeared in the Cincinnati Commercial, a newspaper printed at Cincinnati, Ohio:

“ Telephone Combination.

“ Special to Cincinnati Commercial.

“Washington, H. 0,,.July %1. — An application for a patent ¡: was filed to-day that, in consequence of its vastness of interest, *549 as well as wealth of prospect, renders it a subject of national interest. A company of leading business men has been formed, that has -bought up all the telephone patents antedating those now in úse, and known as the Bell, Gray, and Edison patents. The company is composed of leading business men from all parts of the country, Cincinnati being largely represented and interested. The cash capital of the company is $5,000,000, with headquarters in New York, and in about sixty days they will open up the telephone, which will certainly result in the driving out of all telephones in the market, save the ones they hold, or else the compelling the Gray, Bell, and Edison lines to pay the new company a munificent royalty. It appears from the testimony now on file and in the possession of the new company, which is conclusive and exhaustive, that the inventor of the telephone is a poor mechanic, living near Harrisburg, Pa.,, named Daniel Drawbaugh. Owing to his poverty, he ’was unable to push his patent on the market. The new company have secured and are sole possessors of this invention, antedating those now in use. They are also owners of four patents for telephones issued to Mr. Klemm, of New York. A. large number of capitalists were here to-day to see the filing of the application, and they assert, with a ppsitiveness that is almost convincing, that it will not be long till they have entire charge of the telephones, 'not only in this country but in the world, and that they will be able to establish lines by which messages can be transmitted for almost a song.

“Mr. Lipman Levy, of the law firm of Moulton, Johnson & Levy, of Cincinnati, was here to-day, in the interest of the Cincinnati parties, - who, as already stated, are among the most prominent financial men of our city.”

Afterwards, on the 23d of August, 1880, the following appeared in the Journal of Commerce, a newspaper printed in the city of New York:

“A New Telephone Company. — A company has recently been formed in this city Avith a capital of $5,000,000, for the purpose of manufacturing telephones. The company is to be known as The People’s Telephone Company, and a number *550 of leading capitalists in this city and Cincinnati are interested in it. The telephones are to be manufactured .under the patents of Frank A. Klemm and Abner G. Tisdel, and the application for patents of Daniel Drawbaugh, of Eberly’s Mills, Cumberland County, 'Pa., filed July 21, 1880. It is claimed by those interested in the new enterprise that' Drawbaugh is really the inventor of the telephone, and had completed one years before Professor Bell or any one else had manufactured one. He was, however, in very humble circumstances, and his neighbors who knew of bis experiments looked upon him as a harmless lunatic. He continued improving his original telephone, and it is claimed that the one which the new company proposes to furnish is superior to any now in use. The company ha,s fitted up a factory in Brooklyn, and in three months will be prepared to supply 1000 of the new telephones. As soon as operations are actively commenced, it is expected that legal proceedings will be begun against the new company by the Gold and Stock Telegraph Company, which holds most of the existing patents, and a long and interesting legal fight is anticipated.”

On the 30th of August, 1880, the People’s Telephone Company was incorporated under the general laws of New York, with an authorized capital stock of $5,000,000, for “manufacturing, . constructing, owning, furnishing, letting and selling telephones, and the apparatus' used therewith, under the inventions and patents of Abner G. Tisdel, Frank A. Klemm, Daniel Drawbaugh, and other inventions and patents which may hereafter be assigned to said company,” and on the 4th of September, 1880, Klemm, Loth, Marx, and Wolf, in consideration of $4,999,550, represented by 99,991 shares of stock, assigned and transferred to that company all their interest in the Klemm, Tisdel, and Drawbaugh inventions, those of Drawbaugh being described as “ the. inventions in telephones made by Daniel Drawbaugh of Eberly’s Mills, Cumberland County, in the- State of Pennsylvania, for which application for patents was made on or about the 21st day of July, 1880, and which was assigned to us on the [twenty-] first day of July, 1880, as more particularly appears in a deed of assign *551 ment recorded in the United States Patent Office in Liber W. 25, page 85, in the Book of Transfers of Patents.”

Por the assignment from Drawbaugh to Klemm, Marx, Loth, and Wolf $20,000 was paid in money to Chellis, Jacobs, Hill, and Drawbaugh, and they were also to have a certain amount of the stock of the proposed corporation when formed. What amount they actually got Chellis, who was sworn as a witness in the case, declined-to tell, but he admitted it was large.

At this time, and in this way, the attention of the general public was called for the first time to the fact that Drawbaugh claimed to have anticipated Bell in the discovery of the telephone. Bells success had been proclaimed more than four years before at the Centennial Exposition in Philadelphia. In the meantime inventions in aid of his discovery had been multiplied. According to the testimony of Park Benjamin, more than one hundred patents had been issued and indexed under the word “telephone.” Numerous interferences had been declared and considered at the Patent Office. Gray, Edison, Dolbear, and others had either