by Seth Shulman
Meanwhile, though, patent lawyers often note that the heart of any patent filing lies in its claims. The two claims sections from Bell and Gray—normally listed at the end of the patent document—bear close comparison as well. Gray’s filing contains a single claim. He states:
I claim as my invention the art of transmitting vocal sounds or conversations telegraphically through an electric circuit.
Bell’s patent, by contrast, has five claims. The first four claim the use of “undulations in a continuous voltaic circuit”—the invention Bell hoped would give him exclusive rights to a multiple-messaging telegraph. The fifth—and most famous—claim reads like an afterthought. Here, in the final sentence of the patent document, Bell makes his first and only mention of the transmission of vocal sounds by telegraph. The fifth claim asserts Bell’s invention of
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.
Bell’s patent set my historical intuition on alert, especially given what I already knew. Even if Hubbard had encouraged Bell to focus on the multiple-messaging telegraph, something seemed strikingly awry. The most casual reader could see that one document describes an instrument to transmit speech, while the other describes the use of “an undulating current” to make a multiple-messaging telegraph work. I wondered why Bell’s first explicit mention of anything akin to a telephone comes only in the final sentence of his claims section. Why wouldn’t Bell have elaborated on the possibility of transmitting speech in the body of his patent? Was it possible that Bell tagged on the fifth claim only after he learned of the information contained in Gray’s caveat? If that were the case, there may have been far more underhanded dealings than I had yet imagined.
THE OFFICIAL U.S. Patent Office filings themselves shed little light on the origin of the Bell patent’s jarring fifth claim. However, I was able to find a good deal of information about the relative timing of Bell’s and Gray’s filings at the office. As I soon learned, controversy had raged over this matter practically from the start. With Bell’s attorneys employing a highly questionable legal technicality, the timing turned out to be a key to Bell’s legal victory over Elisha Gray. The issue of whose claim first reached the U.S. Patent Office figured prominently in court and even in a full-blown congressional investigation launched in 1886 to determine whether the U.S. government should annul the patent awarded to Bell. I was definitely not the first to suspect that there was something strange about the Patent Office’s handling of these filings.
Mysteriously, to this day, the standard historical tale asserts that Gray’s patent claim arrived at the Patent Office hours later than Bell’s did. Almost all the major biographies of Bell offer a variant of this story. In 2006, for example, Charlotte Gray writes in her book Reluctant Genius: Alexander Graham Bell and the Passion for Invention that Gardiner Hubbard
dropped off at the U.S. Patent Office in Washington the application with its descriptions of Alec’s [sic] electrical theories and of the crude apparatus that Alec and Watson had built. At first, Alec was furious with Hubbard for taking matters into his own hands. But Hubbard’s action was crucial. Two hours after Hubbard’s call on the U.S. Patent Office, Elisha Gray filed a caveat there [emphasis added].
Despite the widespread repetition of versions of this tale, it is not grounded in fact. There is no evidence that Hubbard himself hand-delivered the patent that day; more important, there is no solid evidence to establish what time either document was filed on February 14, 1876. The simple reason for this is that the U.S. Patent Office officially noted only the date upon which documents arrived at its offices, not the time of day.
Much later, when Gray himself finally spoke out on the matter, he recalled having submitted his patent on the morning of February 14, 1876. As Gray explained:
The caveat was prepared deliberately, and completed the day before it was filed; and my recollection was that it was filed in the morning of Feb. 14. There was no reason for haste; I did not know or suspect that Bell was working on anything of the kind at that time….
A. Edward Evenson, an engineer in Illinois who has made a close study of this controversy, contends that, in fact, the evidence suggests Gray’s caveat did arrive at the Patent Office first. Drawing upon the results of an investigation by the Department of the Interior in 1886, Evenson explains that, at the time, the procedure in the Patent Office was unvarying: all hand-delivered filings were placed in a large basket in the clerk’s office over the course of the day. Each morning and afternoon, patent examiners would receive batches of patent applications in the mail. They would log them in a so-called cash blotter that served as the office’s official log book, along with a record that the filing fee had been paid. After examiners had dispatched the applications that had arrived in the batches of mail, they would reach into the basket of hand-delivered applications and log these too, one by one, into the cash blotter. The fact that Gray’s caveat is listed toward the end of that day’s entries (the thirty-ninth entry) in the log book, while Bell’s is listed as the fifth entry, means that Gray’s filing was drawn from the bottom of the basket, thereby likely having arrived early in the day.
Piecing together the story from internal memos and the facts that surfaced in the ensuing legal case between Bell and Gray, Evenson presents his information in a fascinating book, The Telephone Patent Conspiracy of 1876. Evenson infers that the confusion over this issue stems from the fact that whoever delivered Bell’s patent apparently insisted that it be immediately logged into the cash blotter and hand-delivered directly to the patent examiner in his office. We know this from correspondence between Bell’s lawyers and Ellis Spear, who was the acting commissioner of the Patent Office at the time. The unusual hand delivery within the office accounts for the fact that, even though the documents were technically filed on the same day, the patent examiner in the case—a man named Zenas Wilber—received Bell’s patent personally in his office on February 14 but did not receive Gray’s caveat until the following day. But the available facts indicate strongly that Gray’s claim arrived at the Patent Office several hours before Bell’s, despite the oft-repeated story to the contrary.
The most important thing to note about the entire issue is this: normally, it would make no difference whose claim was filed first. At the time, the U.S. patent system was legally bound to issue patents to those who were the first to invent, not the first to file. Accordingly, after reading Bell’s and Gray’s filings, patent examiner Wilber properly ruled that, because of the overlapping claims of the two filings, Bell’s application would be suspended for three months, allowing Gray time to formally file a full patent application, as the rules of the day stipulated. The Patent Office would wait until it had Gray’s patent in hand before formally deciding whether to declare interference between the claims. Following this standard procedure, Wilber mailed notice of the temporary suspension (and likely interference) to Bell, Gray, and each of their attorneys on February 19, 1876.
This is the point in the story, however, where the contention over the time of day became vital to the telephone’s future. Bell’s attorneys, Anthony Pollok and Marcellus Bailey, immediately responded to Wilber’s letter by arguing that if Bell’s patent had been filed before Gray’s caveat (which was not, after all, a full patent application), then no such suspension or declaration of interference should be allowed. It was a brash and highly questionable argument. As Pollok and Bailey no doubt knew, the Patent Office kept no official track of the time when applications arrived. In fact, just three weeks earlier, on February 3, in an almost identical case, Acting Patent Commissioner Ellis Spear had ruled against such an interpretation of U.S. patent law.
In that prior incident, known as the Essex case, Spear upheld the suspension of a patent application when an overlapping caveat was filed for a similar invention the same day. L
ike Wilber, the patent examiner in the Essex case—which dealt with an improved spinning machine invented by Jeremiah Essex—had made the standard office decision to call for a suspension in anticipation of formal interference hearings. As Spear wrote in that case:
There is nothing in the records of the Office to show which, if either, was, in point of fact, filed first.
Therefore, Spear ruled that
I cannot take into consideration any representation of special hardship in this case, because it would be manifestly improper to consider any ex parte statement whatever…. I do not see why the law should not be strictly applied and the caveator notified and direct that it be done.
Despite this clear and recent precedent, Pollok and Bailey made precisely the same plea in their own ex parte, or one-sided, case. In a letter to Spear received at the Patent Office on February 24, 1876, Pollok and Bailey wrote:
We respectfully request, before it is concluded to suspend our application for 3 months, that you determine whether or not our application was not filed prior to the caveat in question.
Setting aside all other circumstances, the letter from Bell’s attorneys seems suspicious to begin with. Pollok and Bailey would have been unlikely to go to the trouble of making this plea to Spear unless they felt confident that Bell’s patent had, in fact, arrived first. Technically speaking, they should have had no way of knowing such a thing. And yet, as we know from the proceedings that followed, whoever delivered Bell’s patent application had specifically bypassed normal procedure, insisting that it be hand-delivered to Zenas Wilber immediately. Could this have been part of a hastily made plan that could explain Hubbard’s rush to file that day? It certainly seemed plausible.
In response to the letter from Pollok and Bailey, Acting Patent Commissioner Spear contacted Wilber about the matter. Wilber responded with the following memo:
The regular practice in the office has been to determine dates of filing by days alone, and in accordance with such practice I suspended the application herein referred to on a/c [account] of the caveat, the application and caveat being filed upon the same day, viz. Feby 14’—1876. In view of the practice above noted, I have paid no attention to the alleged differences between the times of the filings on the same day.
Somehow, despite Wilber’s explanation, and despite Spear’s recent ruling in the virtually identical Essex case, Pollok and Bailey managed to prevail. They argued that Spear should disallow Gray’s claim because Bell’s patent application was logged into the cash blotter before Gray’s caveat and because Wilber admitted receiving Bell’s filing before Gray’s.
In virtually all patent matters before and since, when two or more competing claims have arrived on the same day, the U.S. Patent Office has undertaken steps toward interference proceedings to determine which inventor conceived of the idea first. But on February 25, 1876, Acting Commissioner of Patents Ellis Spear made U.S. Patent Office history. At the written urging of Bell’s lawyers, Spear overturned the initial judgment of the assigned patent examiner, ordering that only Bell’s claim be considered because it had allegedly reached the Patent Office earlier in the day than Gray’s caveat had.
Pollok and Bailey were clearly prominent and powerful players on the patent scene in this period, but it remains a mystery why Spear was swayed by their highly questionable argument. Even Spear’s rationale is obscure. He specifically notes in his ruling that
Ordinarily the day of filing is not computed, and is considered punctum temporis.
In Gray’s case, however, Spear says it is within his right to consider “the exact time of day when an act was done,” and, accordingly, he ruled that Gray’s caveat “should be disregarded.” Spear’s reasoning may remain a mystery. But there is nothing unclear about its consequences for Elisha Gray: Spear’s ruling drastically undermined his chances for legal recourse in the case.
The entire episode seemed extraordinary, even brazen in its irregularity, dovetailing with much else I had learned about the opening moves of the Bell team to assert their patent rights. I was relieved to find the work of Evenson and several others who shared my view that something was highly suspect in the patenting of the telephone. But I marveled that the controversy surrounding the telephone’s origins was not more widely remembered today.
Along these lines, perhaps the best source of both information and outrage over the case occurred ten years after the fact, in an unusual governmental report. Dated December 22, 1885, the report was part of the congressional investigation into the anomalies in the case. At the time, enough controversy surrounded Bell’s patent rights to the telephone that the government was considering annulling them. Because the U.S. Patent Office was then under the purview of the Department of the Interior, Assistant Secretary of the Interior George A. Jenks conducted an investigation of the matter for Congress. As it turned out, the investigation was politically tainted by the fact that some of the congressmembers who called for it stood to gain financially if the Bell telephone monopoly were dismantled. Nevertheless, the investigation makes for fascinating reading: it brings to light many of the particulars that the courts had previously ignored and stands as a thorough look at the entire patenting process in the case.
Jenks’s report singles out Spear’s decision in the Bell-Gray matter for particular attack, calling Spear’s ruling “exceptional” and “contrary to the former practice of the office.” Jenks notes too that Spear contradicted his own ruling on the same subject made on February 3, 1876, in the Essex case. Citing these and other disturbing irregularities, Jenks ends with this unequivocal assessment:
If in passing through a forest the woodsman should come upon the course of a tornado, and finds the tops of the trees all pointing in one direction he would be as firmly convinced of the direction the wind had blown as though he had been an eye witness to the storm. In this one-sided contest between the Bell application and the Gray caveat the tree tops all point one way.
10
CALLER I.D.
ASIDE FROM THE wrangling at the Patent Office, I was curious about how Bell’s work fit into the broader intellectual history of the telephone. For instance, even if he figured out how to make a working transmitter only after seeing Gray’s caveat, I thought Bell might perhaps deserve credit as the first to have actively pursued the idea of a telephone.
I quickly realized, however, that such a notion was badly mistaken.
Efforts to trace the intellectual history of an idea or artifact almost always result in a complex tale with many disparate players. Surprisingly, though, unlike the patent question, most of those who have looked closely at the origins of the telephone agree about the key milestones that paved the way for its development. And almost all of them occurred well before Gray or Bell’s time.
Over the course of more than a century, a number of people have carefully traced the telephone’s conceptual development. George Prescott, a leading electrical researcher and contemporary of Bell’s, did so in his 1878 book, The Speaking Telegraph, Talking Phonograph and Other Novelties. The British electrical engineer William Aitken reexamined the history in 1939 in a detailed work entitled Who Invented the Telephone? And more recently, in 1995, Lewis Coe revisited the topic in The Telephone and Its Several Inventors.
Many of these experts contend, for instance, that much credit is due to Charles Grafton Page, an accomplished physicist and physician in Salem (the Massachusetts town where, coincidentally, Bell later lived with the Sanders family). In 1837, ten years before Bell was born, Page made a seminal breakthrough when he observed that an electromagnet emits a sound when the current flowing to it is interrupted rapidly. He called the effect “galvanic music” and found he could vary the sound by changing how fast the interruptions in current flow occurred. Most historians agree that Page was the first to use electricity to directly produce musical tones. His discovery opened the door to the prospect that electrical current could create sounds—and that the current could carry those sounds along a telegraph wire. This line
of thinking would lead a diverse assortment of researchers on a direct path toward the telephone.
On numerous occasions, Bell referenced Page’s discovery as a key influence on his work. He also frequently cited the importance of the electrical devices Helmholtz built to test his acoustical theories, especially the tuning fork sounder. In fact, in Bell’s first public talk about the telephone at the American Academy of Arts and Sciences, he cites more than a dozen researchers who influenced his work in addition to Page and Helmholtz. As Bell himself notes, by the time he began his research, the acoustic effects related to Page’s mysterious galvanic music had been
carefully studied by Marrian, Beatson, Gassiot, De la Rive, Matteucci, Guillemin, Wertheim, Wartmann, Janniar, Joule, Laborde, Legat, Reis, Poggendorf, Du Moncel, Delezenne, and others.
The list may sound like an imposing historical tangle, but it offers some noteworthy context. Quite simply, by Bell’s day many people, in many countries, were actively researching the intriguing, emerging nexus of acoustics and electricity.
Years later, in response to questioning in the lawsuits over patent rights to the telephone, Bell disavowed much knowledge of the work of any of the researchers listed above, at least so far as it might have helped him to invent a telephone; he claimed disingenuously that he didn’t follow the literature in the field very closely. But Bell’s later comments can to some extent be understood in the context of the adversarial tug and pull in the courtroom. The list Bell offered when he first publicly spoke about the telephone, on May 22, 1876, speaks for itself: Bell was at least to some degree familiar with the early telephonic research that preceded him.
