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TELEPHONE CASES. DOLBEAR v. AMERICAN BELL TELEPHONE COMPANY. MOLECULAR TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. AMERICAN BELL TELEPHONE COMPANY V. MOLECULAR TELEPHONE COMPANY. CLAY COMMERCIAL TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. PEOPLE'S TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. OVERLAND TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. (PART ONE THREE)

decided: March 19, 1888.

THE TELEPHONE CASES.

DOLBEAR
v.
AMERICAN BELL TELEPHONE COMPANY.

MOLECULAR TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

AMERICAN BELL TELEPHONE COMPANY
v.
MOLECULAR TELEPHONE COMPANY.

CLAY COMMERCIAL TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

PEOPLE'S TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

OVERLAND TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY. (PART ONE OF THREE)



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

llpadding="8"> SUPREME COURT OF THE UNITED STATES

Nos. 10, 361, 362, 709, 770, 771

8 S. Ct. 778, 126 U.S. 1, 31 L. Ed. 863, 1888.SCT.40082 <http://www.versuslaw.com>

decided: March 19, 1888.

THE TELEPHONE CASES.

DOLBEAR
v.
AMERICAN BELL TELEPHONE COMPANY.

MOLECULAR TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

AMERICAN BELL TELEPHONE COMPANY
v.
MOLECULAR TELEPHONE COMPANY.

CLAY COMMERCIAL TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

PEOPLE'S TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY.

OVERLAND TELEPHONE COMPANY
v.
AMERICAN BELL TELEPHONE COMPANY. (PART ONE OF THREE)

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

Mr. J. E. Maynadier for Dolbear. Mr. Causten Browne was with Mr. Maynadier on the brief.*fn1

I. The Bell Patent of 1876 describes and claims but one method of transmitting vocal and other sounds, which method is: (1) convert the energy of sound-waves into (2) magnetic energy; convert that into (3) vibratory currents of electricity; convert those into (4) magnetic energy; and with that cause sound-waves; or, briefly (1) sound; (2) magnet; (3) currents; (4) magnet; (5) sound.

The undisputed prior methods are (a) The Speaking Tube; (1) sound; (2) vibrating in column; (3) sound. (b) The Mechanical Telephone; (1) sound; (2) vibration of line; (3) sound.

Bell carefully limits himself in his fifth claim to the described apparatus; that is, "to the apparatus for transmitting vocal or other sounds telegraphically, as herein described [that is to say] 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 to the described method; that is, to the method of "transmitting vocal or other sounds telegraphically as herein described, [that is to say] by causing electrical undulations, similar in form, &c., substantially as set forth.

[]

Bell's counsel, however, set up as the patented invention of Bell the transmission of speech by means of "electrical undulations similar in form to the vibrations of the air accompanying the said vocal or other sounds," or, as they otherwise express it, "electrical changes which correspond to the sonorous motions of the air," rejecting one or both of the limiting clauses used by Bell, and contending that the patent should be construed broadly for the use of electricity for the purpose of transmitting articulate speech. No other construction than this will suffice to suppress the practice of the Dolbear method; but such a construction must be based upon a dangerously broad theory of invention, and their claim for the use of electricity to transmit speech cannot stand. O'Reilly v. Morse, 15 How. 62.

II. Bell never invented, so far as appears from the record, any other method of transmitting vocal or like sounds.

III.Bell in his 1876 patent takes the utmost pains to teach (what he, in fact, discovered) that, in order to produce currents in a closed circuit, like in form to sound-waves, the currents must be alternately negative and positive; that is, to and fro currents, so as thereby to copy the to and fro motions of the air particles constituting the sound-waves.

IV. Bell's apparatus is, in essence, (1) magnet; (2) coil; (3) closed circuit; (4) coil; (5) magnet, one magnet being supplied with the proper devices for causing the energy of sound-waves to vary the energy of the magnet, and the other magnet being supplied with the proper devices to cause it s varying energy to produce sound-waves.

The characteristic of Bell's invention is the ring circuit, and is not, as Bell's counsel now contend, "form, not mere continuity." Before Dolbear's patent was granted, Bell's leading expert testified: "The electrical circuit of the instrument must always present an uninterrupted path by which the continually varying current may travel from the transmitter to the receiver, that is, the circuit containing the battery or source of electrical power, the transmitter, line wire, receiver, and earth or return wire, must always be closed." Bell's specification describes no circuit but the ring circuit running from the positive pole around to the negative pole, and at the receiving station traversing the coils of an electromagnet. Throughout his specification there is one constant and sole agent employed for transmitting the air vibrations and reproducing them to the ear, viz.: a closed circuit with a current converted into magnetism whose variations vibrate correspondingly the receiving armature. Strip away as immaterial everything which can, by the most liberal interpretation, be so regarded, and then, if anything in the description of the method of and apparatus for transmitting speech is characteristic of and essential to Bell's invention, it is this, that the current from transmitting station to receiving station on which the required electrical changes are to be impressed, is a current traversing the coils of an electromagnet and that the operative power for vibrating the receiving diaphragm is the varying magnetism so produced in the electromagnet.

V. Bell's patent of 1876 does not cover either the Reis method or the Reis apparatus, but the Reis method -- that is, (1) sound; (2) current; (3) magnet; (4) sound -- and the Reis apparatus -- that is, (1) a battery; (2) its circuit; (3) a transmitter diaphragm, and the electrodes governed by it; (4) a coil; (5) its magnet -- are both public property; 1st, because of the printed publications, so fully describing that apparatus, that the Reis method will necessarily become familiar to any skilled person studying the operation of that apparatus; and 2d, because Mr. Bell carefully refrained from putting a single word in the specification of either of his patents which tended to show that the Reis current of unvarying polarity, but varying only in strength, was capable of being made similar in form to airwaves accompanying vocal or like sounds, and, by the very strongest implication, asserted in the 1876 patent that rapidly varying polarity was essential in order that the to and fro motions of the air particles of a sound-wave should be copied.

[]

VI. The battery, primary circuit, transmitter diaphragm, its electrodes, and the coil and magnet in the primary or transmitter circuit of the Dolbear apparatus do not involve the method described and claimed in Bell's 1876 patent, nor is the apparatus substantially the same as any apparatus described and claimed in Bell's 1876 patent, but this transmitted circuit and its parts are copied directly from Reis. Dolbear's apparatus is properly termed the Reis-Dolbear apparatus, and the method used in the Reis portion of the Dolbear apparatus is precisely that method which any skilled person must necessarily have become cognizant of from a study of the Reis apparatus when acted upon by vocal or other sounds not loud enough to break the circuit.

VII. The Dolbear secondary coil, line and receiver is radically unlike anything described or suggested in Bell's 1876 patent, and the Dolbear method involved in its use with the Reis apparatus as a transmitter is radically unlike any method described or suggested in Bell's 1876 patent, and is also radically unlike any method of utilizing electricity ever known before Dolbear discovered his method and apparatus. The primary circuit, the primary coil and its core in the Dolbear apparatus are copied directly from the Reis apparatus, but the variations of magnetic energy induced in the core by the flowing of the varying primary current spirally around the core are converted into electric variations of a kind wholly unknown until discovered by Dolbear. These electric variations of Dolbear are produced by variations of magnetic energy in the core of a secondary coil, and inasmuch as secondary coils containing a core whose magnetism is varied are old and well-known, it is clear that, speaking generally, the Dolbear variations are like the variations in other secondary coils; but there are, nevertheless, such marked and striking differences as make them radically new and entitle them to rank as an invention second to none in question in this case. The electric tension, pressure or head, is necessarily small in all telephones using a closed circuit. The Dolbear secondary coil forms no part of a closed circuit, and, in this particular, is radically unlike Bell's (Fig. 7) and the secondary coil of the commercial telephone. The fact that the Dolber line-wire is always open or broken and never closed, prevents the flow of any current through any part of the receiver, and for this reason the electric tension, pressure or head is at the maximum positive or negative. In the Reis-Dolbear diagram the energy of the air-waves acts upon the diaphragm, which is a facsimile of the Reis diaphragm; the vibrations of the air-waves move that diaphragm just exactly as they do in Reis; the diaphragm controls the voltaic or battery current, just exactly as in Reis; and variations in that current caused by the varying pressure of the electrodes one upon the other vary the magnetic energy of a magnet, just exactly as in the commercial telephone. So that Dolbear's first step is undoubtedly the variation by air-waves of the magnetic energy of a magnet, it being thereby like Bell's. The first step in the Bell method is the varying, by force of the air-waves, or of the sound-waves, of the energy of a magnet. Dolbear's first step is much the same. But, as one of the experts for the defendants states, here the resemblance ends. That is the only likeness, the sole likeness, between the Bell method, as described, and the Dolbear method. That is, the energy of the air-waves in both may properly and fairly be said to vary the energy of the magnet. Now, how to utilize that varying magnetic energy. Inasmuch as the energy of the air-waves varies the magnet, and is the sole cause for the variations in magnetic energy, it follows that the magnetic energy must be similar in form to the energy of the air-waves. Bell utilized it by producing plus and minus currents. How does Dolbear utilize it? Dolbear, in truth and in fact, produces no currents whatever, nor any current, on the line. No currents, nor any current, on the line. He produces simply variations in electric pressure, or in electric tension, or electric condensations and rarefactions; but no currents.

In the Reis-Dolbear diagram, at the end of the very large coil which is on the left there is a wire which goes out through the air, on the poles for instance, and terminates in a plate shown on the right. There is no connection between that plate and the other plate which is opposed to it. The second plate is fastened to the other end of that coil so that no current can flow through the Dolbear line. The Dolbear line is an open circuit of necessity. The Bell line is a closed circuit of necessity. That is a radical difference. There is no magnet, nor anything resembling a magnet, on the right of Dolbear's line; nor any coil, nor anything resembling a coil, on the right of the Dolbear line, and the electric condition of the Dolbear line is radically unlike that of Bell; the Dolbear receiver is radically unlike that of Bell, and is not a known substitute for Bell's receiver, but was wholly unknown, and not in use for any purpose whatever until Dolbear's discovery, after Bell took out his patent, that that contrivance would produce speech. This is well illustrated as follows: Take a cylinder, say three feet long and a foot in diameter, with a piston midway in that cylinder, and a pipe leading from the left of the cylinder (a small pipe), and going out say a mile, and there being connected air-tight with a spiral or helical pipe, and then another pipe at the lower end of that spiral pipe, coming back a mile into the right-hand end of the cylinder: then there will be an air apparatus which is very closely analogous to Bell's apparatus. If the piston which is midway at the start in the cylinder is moved, say from right to left, the air in the left-hand end of that cylinder will be condensed, and the air in the right-hand of the cylinder will be rarefied. But the air will not be either condensed or rarefied to any considerable extent, for the reason that these pipes make a conduit, connecting the right and left hand ends of the cylinder; and whenever the air tries to be condensed in one end, or to be rarefied in the other, the air will flow as a current through the pipe line, and through the helical pipe, and neutralize all condensation and rarefaction. This is also analogous to Bell. If it were true that the flowing of the air through this helical pipe would set up in a rod of some kind in the axis of that helix some form of energy, then it would be exactly analogous. The main point is that there is a conduit connecting the two ends of the generator of pressure, which conduit serves to allow a current to be produced, which current prevents and neutralizes any marked increase or decrease of pressure at the two ends of the generator. And it is by the flow of that current spirally around something that all the work is done.

Now, taking the same cylinder exactly, and the same piston exactly, and the same small pipe going a mile from the left-hand end, and the same small pipe going a mile from the right-hand end, but cutting out the helical pipe which is supposed to be in the Bell analogy, -- cut that out, and screw a cap on the end of the left-hand pipe, and another cap on the end of the right-hand pipe, and have these caps air-tight, and there is something closely analogous to the Dolbear method. Moving the piston as before, all the air in the left-hand end of the cylinder, and all the air in the pipe leading from that end, and all the air in the cap at the end of that pipe is condensed, and all the air in the cap and pipe at the right-hand end of the cylinder is rarefied, and there is no current tending to diminish the condensation or rarefaction.

There can be no current, because the pipes are hermetically closed, and the current cannot flow. There are then, in fact; two pressure chambers, one a high-pressure chamber, and the other a low-pressure chamber; and the maximum high pressure and the maximum low pressure which the motion of the piston will give is obtained. But not so in Bell's. In Bell's nothing like the maximum high or the maximum low pressure can be obtained, because the current flows and prevents it. Stating the same thing exactly in the electrical language: in the Reis-Dolbear diagram the secondary coil is very much larger than it is in the Reis-Bell diagram, which represents the commercial Bell telephone.

The only difference between the coils is, -- one is very much larger than the other. The secondary coil is the generator of the electromotive force. Electro-motive force means electrical pressure, tension, or head. If a high electromotive force be joined to a low one, or to a lower one, by a wire or conduit of any kind, the current will flow from the higher to the lower. Just as if a tank of water ten feet up be joined by a pipe to a tank of water one foot up from a certain level, a current of water will flow. What happens in Dolbear's method is that, whenever the magnet varies in strength, then the big coil, which is the generator, generates an electric pressure at one end, and an electric vacuum at the other. Plenum et vacuum.

[]

Electric plus at one end, and electric minus at the other end of the coil or generator. To the plus end of the coil a wire is attached; to the minus end of the coil a wire is attached. So far it is exactly like Bell's, except as to the size or power of the coil. But those wires are not in electrical contact anywhere. They must be in electrical contact in Bell. In Bell they must be joined by a coil, because the current must flow spirally around a soft iron core. In order to do Bell's work they must flow from left to right, and again from right to left, rapidly alternating. But the whole function of the secondary coil in Dolbear is to make a very large electrical pressure, plus at one end and minus at the other.

Dolbear relies on electrical attraction pure and simple. It appears throughout this case that for no practical purpose whatever was this electrical attraction, this static electricity, this amberism, ever used by anybody, anywhere, until Dolbear first used it in his telephone. It is therefore not a known substitute or anything like a known substitute for Bell's electrical currents.

VIII. In both the commercial telephone and the Dolbear telephone the Reis apparatus is used as a transmitter circuit in connection with a secondary coil which forms part of the line wire.

Although at first sight this fact may seem to make the Dolbear telephone substantially like the Bell commercial telephone in one important particular, yet it cannot have any weight whatever in view of the radical difference between the secondary coil and line of the Dolbear telephone and the secondary coil and line of the Bell commercial telephone, or the transmitting coil and line of Fig. 7 of Bell's patent; that is to say, Dolbear's secondary coil must be a generator of enormous electromotive force, or electric tension, pressure, or head, while the generator of the Bell produces relatively trifling electromotive force or tension, pressure, or head; an electrical conduit joining the positive and negative is essential to Bell and fatal to Dolbear, and Dolbear's line and its connected plate is charged to a very high potential tension, pressure, or head, alternately positive and negative, and there are no currents, properly speaking, in the Dolbear line, but only such flow as is necessary to charge the line and the plate or disc connected with it.

IX. Wholly disregarding Reis, and assuming that Bell is the first in the field, yet the Dolbear method and apparatus is substantially unlike any method or apparatus described or claimed in the Bell patent of 1876, for the reason that Dolbear does not utilize electrical undulations substantially the same as those described and claimed in the Bell patent of 1876, but utilizes electrical undulations radically unlike any other known until Dolbear discovered his method and apparatus, and for the reason that there is nothing in either the Dolbear method or apparatus copied from anything described or suggested in the Bell patent of 1876; and Bell's fifth claim is to be so construed as to enable inventors of substantially different methods of telephony to practise their methods. The problem of telephony was stated in a scientific article published in 1863, in which Reis's work up to that time was discussed. Let all the sonorous air vibrations of speech be electrically represented; let them all be translated into electricity; let there be electrical changes corresponding to the sonorous air vibrations, and let them reproduce sonorous air vibrations like the first; if you can do that, you will transmit speech. In the court below the Bell patent was construed to cover doing that, no matter how, and that construction is contended for in this court. But that construction cannot stand under the law.

The writer of the article published in 1863 as a commentary on Reis's work, says: "If we succeed in transmitting with the galvanic current the oscillations of a sounding body to a distance, so that there another body is put to equally rapid and, in respect to each other, equally strong oscillations, the problem of telephoning is solved, for then exactly the same phenomena of waves are called forth on the distant points as the ear receives at the place of origin; therefore they also must make the same impression. Even speech must be heard in places very distant from each other." Therefore the problem, the statement of which is called Bell's invention to-day, was as well recognized in 1863 as it is now. But Bell's patented invention is not the restatement of this problem, but the solution of it which he invented and patented. Bell undertook to solve and did solve the problem by one method. Dolbear subsequently undertook to solve and did solve the problem by another and substantially different method.

In Tilghman v. Proctor, 102 U.S. 707, which seems to be quite conclusive of this case, and to present a singularly close analogy to it, the patent was for a process of separating neutral fats into glycerine and free fat acids by the use of water -- hot water -- under such pressure as prevented its evaporation into steam. Upon a revision of the judgment of the court rendered in a previous case, it was held that a wide departure as to degree of heat, and a wide departure as to duration of exposure to heat, might well be included within the invention of the patentee, because he was the first man who used water, heat and pressure for the purpose at all, and his invention was of a process, and not of an apparatus. The opinion says, upon page 729: "The claim of the patent is not for a mere principle. The chemical principle or scientific fact upon which it is founded is that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free.

"This chemical fact was not discovered by Tilghman. He only claims to have invented a particular mode of bringing about the desired chemical union between the fatty elements and water. He claims the process of subjecting to a high degree of heat a mixture continually kept up, of nearly equal quantities of fat and water, in a convenient vessel strong enough to resist the effort of the mixture to convert itself into steam. This is most certainly a process."

Now, in the present case also, there is a principle or scientific fact involved. If you would transmit speech, you must have the electrical condition of the wire vary with the varying conditions of the air brought about by speech, and produce again like varying conditions of the air. This is the alternative statement of transmitting speech by electricity. There is the problem. What is the solution? The parallel with the case of Tilghman v. Proctor seems to be perfect. In that case there was a problem. Find a way, if you can, to combine each atom of water with an atom of acid. If you can do that, then you can reach this important result of resolving the neutral fats into glycerine and acids. And Tilghman's solution of it was: Heat the water under such pressure that the water shall not pass into steam. This was his process; and he claimed, and the court justly allowed, great latitude in its application.

Now what was the method invented by Mr. Bell for solving the problem presented to him. The answer is plain.

When he took his patent, there was but one agent that had ever been used for variably attracting any object so as to make it vibrate and beat the air and give out audible sound. That agent was magnetism. There was but one practical use to which electricity had ever been put for the purpose of so causing a body to vibrate and give out audible sounds; and that was as a flowing current making an iron core an electromagnet the variations of current strength causing like magnetic variations. Mr. Bell found a way to get electrical changes, corresponding in form to the sound-waves, in the current traversing the coils of an electromagnet and so to produce corresponding variations in the magnet, and corresponding vibrations of a receiver armature. But under the broadest construction permissible, Bell's patent cannot include something which neither he nor any other man had then done or supposed could be done; that is to say, cause an armature to vibrate and give audible sounds by variations of electrical attraction, with no use of magnetism at all. It cannot include causing an armature to vibrate and give audible sounds by variations of electrical attraction, variations of that electrical charge of tension which is brought about by rubbing a piece of sealing-wax, for example, -- in a word, by amberism, -- which Dolbear has reduced to the service of mankind for the first time. Dolbear's receiver, though properly enough called a "condenser," is radically different from the old "condensers," for in the Dolbear receiver one of the plates is held firmly so that it cannot vibrate, and the other is held so as to be free to vibrate (according to the variations of electrical charge) and beat the air and give audible sound; the two plates being separated by a body of air so that no current can pass.

Here is a change of construction designed to produce a new operation, for a new purpose, without which change that operation could not be performed not that purpose answered. No operation of vibrating either plate by variations of electrical charge was contemplated or performed in the old condensers. The arrangement of the parts or elements of the old condensers did not admit of its being performed.

To hold one element of a condenser still, so that it shall not vibrate, and suspend the other so that it shall virbrate, and then make use of its vibration according to variations of electric charge, was wholly and absolutely new. No such instrument existed. No such use of any instrument had ever been proposed or supposed to be possible. It cannot be said with any show of reason that any equivalent for it was found in any of the old condensers.

Mr. Grosvenor P. Lowrey for the Molecular Telephone Company. Mr. Wheeler H. Peckham and Mr. H. D. Donnelly were with him on the brief.

The judgment appealed from decides that the appellant's transmitter infringes the fifth claim of Bell's patent of 1876, which is for "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 sounds, substantially as set forth:" and also that the receiver infringes the sixth, seventh, and eighth claims of Bell's patent of 1877.

Certain Errors to be corrected in Limine.

Two popular errors which have a tendency to mislead the judgment, should be corrected at the outset, viz.:

(1) That "vocal sounds" and "articulate speech" are convertible terms in acoustics or telegraphy.

"Vocal sound" is an utterance common to all animals possessing the organ of voice. "Articulate speech" is a series of sounds uttered in accordance with the laws of language in arbitrary sequence, to express ideas. At the date of Bell's patent "vocal sounds" was a term used in connection with multiple telegraphy, in which the signals were certain sustained or broken musical notes of a given pitch. The use of that term in the fifth claim does not, therefore, imply that articulate speech was contemplated.

(2) That this controversy relates to a telephonic device -- the invention of Mr. Bell.

No part of the transmitting instrument so familiar to our eyes, in the commercial business of telephony, was invented or is claimed by him. When, therefore, the appellees speak of a Bell telephone, they refer not to any device which they claim was invented by Mr. Bell, but to any and every telephone which transmits speech "by causing electrical undulations similar in form to the vibrations of the air accompanying" the transmitted sound.

No telephone can transmit speech except by producing in the line wire some electrical action equivalent to the exciting cause.

What that action is cannot be known; but Mr. Bell and others have inferred -- perhaps not unreasonably -- that it consists in a series of changes in current strength; and one of them, Mr. Varley, in 1870, gave to these changes the name "undulations."

Bell having adopted the inference and the name, has -- according to his present interpretation of the Patent Office language -- patented the inference.

Points of Difference arising upon the Record.

The differences between the litigants in the Molecular case arise chiefly on the interpretation of the fifth claim. Certain particular facts and ideas affecting, modifying or arising out of these differences need to be indicated at the outset in order to relieve the later discussion from repetition.

Appellants' Construction of the 5th Claim.

The appellants concede the Fifth claim to be a good claim when restricted to a specific apparatus (Fig. 7 of the patent), which includes a closed circuit incapable of being opened, and a continuous current incapable of being intermittent; and the method by which alone that apparatus can be operated.

Any broader interpretation they regard as an unauthorized enlargement of the words of the patent, resulting in a monopoly to (1) some things invented before Bell's time; (2) some other things invented afterwards, and in no sense derived from him; and to (3) scientific facts or laws of nature, the monopolizing of which no statute justifies.

Appellees' Construction.

The appellees regard this claim -- and upon their persuasion the courts below have so interpreted it -- as a "broad claim" to all electrical transmission of speech, which results from "causing electrical undulations similar in form to the vibrations of the air accompanying" the sound; on the ground that Bell first discovered that this is the way in which speech is transmitted electrically. In fact, the words of the claim are a mere formula to express that thing, whatever it may be, which occurs in the line wire when speech is transmitted.

A claim is thus virtually made to speech transmission by the transmitting of it; or, in other words, for all such doing of a thing as is provable by its being done.

The significance and far-reaching effect of such a claim (thus interpreted) needs only to be realized, to be rejected by an application of the Argumentum Ab inconvenient. To test this an analogous claim covering speech transmission by the air, as a medium, may be formulated and compared with Bell's actual claim, as follows:

Claim for AIR Transmission of Speech.

1. A says: "I will speak to C."

2. B says: "I will cause by the action of my vocal organs, &c., an undulation of air particles between C and me, in a form similar to the originating movements in my vocal chords, mouth cavities, &c."

These two propositions are equivalents.

Claim for ELECTRICAL Transmission of Speech.

3. Reis, Bourseul and Bell each say: "We will by means of membranes, conductors and magnets transmit and Reproduce sounds electrically (Bourseul and Reis add "speech," which Bell omits).

4. Reis and Bourseul say: "We will do this by speaking to a membrane connected with a wire and battery, and thus cause the air vibrations accompanying any sound to be taken up by an electrical current, and by means of that current to be reproduced, so as to give to the hearer the same sensation as the original vibrations would have done. To do this, however, the mechanical arrangement must be such as will enable the syllables to reproduce their vibrations -- so that none shall be lost -- throughout all the intervening media" (including of course the wire).

5. Bell says: "I will do this by 'method of and apparatus for causing electrical undulations similar in form to the vibrations of the air accompanying' such sounds."

These three propositions are equivalents.

If we now attempt to frame a patent claim for, say, proposition 2, it will be apparent that such a claim will cover proposition 1 -- and that would be intolerable to common sense. If we attempt to patent proposition 5, which is Bell's precise claim (with its present interpretation understood), we shall find that we have covered proposition 3 -- which is again intolerable as being too broad; and besides was anticipated by proposition 4, which was announced to the world at a much earlier date.

This broad construction has nevertheless been sustained upon an elaborate exposition, by counsel and experts, of the physical laws involved in the operation of telephony; and an assumption that (1) some of these essential laws and conditions were unknown before Bell, and were discovered by him; (2) that Reis failed in 1861 to transmit speech because he was ignorant of them; (3) that his system demands a mode of operation inconsistent with those laws; and that therefore it could never succeed.

Certain General Principles to be read into the Specific Work of Reis and others before 1861 -- as due to a right understanding of them.

During all the period to which it is necessary to refer, a general principle of philosophy has fully possessed the scientific minds of the world, viz., that all forces of nature act and exist under certain laws of correlation which assume that energy is indestructible, and that its forms are capable of mutual conversion. It was not only believed but demonstrated that mechanical action (which is a motion of masses) may be transformed into heat and electricity (which was held to be a motion of the atoms of matter), and vice versa. These mutations were found to be rigidly subject to the laws of quantity, i.e. a given amount of one force was known to produce a definite quantity of another. This implies that where the originating force is variable, the resulting force will be correspondingly variable. These relations of the modes of energy commonly known by the phrase, "correlation of forces," or "persistence of forces," has formed a living element in scientific literature, and occupied the thoughts and guided the investigations of philosophical inquirers since about 1835.

It was also known that sound is a vibratory to and fro motion in ordinary matter; and that different sounds produce different vibrations both as to the number of to and fro motions which an air particle will make in a given time, and also in the extent or amplitude of these vibrations. The rate of the vibration was imputed as the cause of pitch in sounds; and the amplitude of the vibration was imputed as the cause of its loudness. As these varied, the pitch and loudness varied.

But besides pitch and loudness, a characteristic which in acoustics is called "quality" enters into sounds, and enables us to distinguish one voice, instrument or other sound-producing cause from another, while both are giving forth the same pitch and loudness; and this was also known prior to 1861. The physicists inferred that this effect must arise from something in the movement of the air particle besides its rate and amplitude. They concluded that the air-particle journey performed under the impulse of one voice, differed from that which, at the same pitch and loudness, it performed under the impulse of another voice.

Thus in one case the movement might rise to a maximum of speed quickly; and in the other, slowly. In one it might maintain a nearly uniform rate of increase and decrease throughout, while in the other, there would be apparent irregularities.

These variations they called the "form" of the motion; as its results had before been called the "quality" of the resulting sound. Probably the term "form" was adopted from the use of graphical curves, by which the order and succession of motions or events are exhibited in the shape of a curved line.

Particular Application of these Principles to Electric Telephony.

All these things being known prior to 1861, the date to which attention must be called, it results that any physicist engaged at that time upon an effort to transmit and reproduce sounds by electricity must be considered to have known that as the motion of the air particle accompanying the sound may vary in form, violence or amplitude, the electrical changes -- or "undulations" -- into which that motion is to be transformed, must correspondingly vary.

Under the general philosophical principles above stated, and which were universally accepted at the dates of Reis's inventions and publications, it was also clear that nature's way of transforming mechanical energy (such as the to and fro movement of an air particle) with all its variations of force, into electrical energy of similar mutations, was, and necessarily must always be, by successively reducing or increasing in a corresponding manner the strength of an electrical current. The phrase "electrical undulations similar in form," etc., is, therefore, a mere restatement of that universally recognized law, for the purpose of applying it to the specific subject of electrical sound transmission. These things being understood, it remained for the inventor and man of science to devise mechanical means and processes by which to bring about these needed electrical mutations in an order and degree suitable to maintain and reproduce the air vibrations accompanying the particular sound whose reproduction at a distance was desired. The mechanical devices sought for might vary, and the processes which within themselves they were to develop might vary, but it was known that the process of nature -- to wit, the creation of something, in the electrical field (called by Bell, "undulations") equivalent in sequence, power and form to the motion of the air particle accompanying a sound -- was the only process by which those motions could be counterfeited at a distance. This last process being a recognized law of nature, which experimenters and investigators were endeavoring to find means to bring into action, has been in previous adjudications confounded by the courts with those other invented processes or methods which are provided to control the operation of the mechanical devices of man. It will be easy to see, in reading the decisions below, that in using the terms "means," "method," and "process," the courts sometimes intend the means, method, or process of Bell's apparatus for taking up the sound-wave and bringing its energy to bear upon the electrical current; and in other cases they intend the means, method, or process by which the electrical current, acting under a universal law, receives that energy and sustains and finally retransforms it; and these two meanings they confound to the prejudice of a correct intellectual judgment.

The appellants object to nothing in the judgments sustaining the fifth claim except that which grants to Mr. Bell a monopoly of the right to appeal to nature and to solicit her -- acting according to her own laws -- to receive, sustain, and retransform mechanical energy of sound-waves, when brought to the electrical current by an invented method and apparatus different from those of Mr. Bell.

Two different methods and apparatus by which sound-wave energy may be successfully transformed into electrical energy.

There are two mechanical methods by which man's invention is able to invoke and avail of this law of nature.

One was invented by Mr. Bell, and is called the "magneto-electric method." It involves a closed circuit and continuous current, without possibility of change.

The other was not invented by Mr. Bell, and is called the "variable resistance method." It involves a circuit which may be opened and a current which may be made intermittent, automatically and irregularly.

As is apparent from the construction of the Reis instruments, the latter was employed by Reis and he was under the impression that his instruments regularly continued their variation of the degree of resistance to a point at which it became infinite; that is to say, to the point of breaking the current altogether. That his opinions upon this point have no relevancy in this contest will be shown hereafter; as also that his opinion as to the operation of his instrument is probably a mistaken one. The method used by him of placing in his transmitting instrument two electrodes in normal contact which could be separated so that no current could pass, (but which under the impulse of air-waves were really intended to vary their degree of pressure and the consequent degree of resistance only so far as was necessary to accomplish the intended work), is now in universal use in telephony. There are numerous devices for operating by this principle. The Molecular Company's transmitter is one; and the Blake transmitter, used by the appellees, is another. Neither of these instruments could be used in the "closed circuit" method described by Bell in his patent, and by which method alone can the apparatus described in his patent (the magneto-electric telephone) be used.

1. Bell's Magneto-Telephone and its Methods.

"The method of, and apparatus form transmitting vocal or other sounds telegraphically, as herein described," and "substantially as set forth," etc. 5th claim of Bell's patent of 1876.

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The above drawing is copied from the patent, and together with the text of the patent, it clearly shows what "method" is applicable to what "apparatus."

The method may now be defined as follows: A method of transforming the mechanical energy of air-waves into electrical energy, by moving a piece of inductive material (diaphragm) in front of the poles of an electromagnet by which movement new electrical currents are set up in the coils of the electromagnet which, passing over a connected line in degrees of strength constantly varied by the movement of the inductive material, vary the magnetic power of a second electromagnet causing it to exercise a variable attraction on another diaphragm in its neighborhood; which second diaphragm is thus made to copy the movements of the first diaphragm and reproduce in the adjacent air-particles, vibrations similar to those which accompanied the original sound.

The novelty in all this consisted not in the idea of transmitting sounds; not in the use of a movable membrane, disc, or diaphragm, for that purpose; not in the use of the energy of air-waves to act upon the membrane, etc., and thus to reproduce sounds; not in the employment of electromagnets conductors, or other electrical means -- for all these were old; but -- simply -- in using the energy of air-waves to actuate mechanically a little dynamo machine and to cause it -- not to mould an existing current -- but to create new currents.

The essential characteristic of operation which distinguishes this method, more abstractly stated, is: A magnetic field, disturbed by the shifting presence of an inducing body, which thereby creates electricity of varying direction and electromotive force, in the wire. The efficient is the magnetic force; its source is the magnetic field; and the battery current -- where a battery is used (as shown in the drawing above), -- is not in any sense the cause of work, being used merely to magnetize the cores of the electromagnets. The current constantly varies in its direction as the diaphragm advances or recedes, and the circuit is never and can never be broken -- there being one complete metallic or earth connection from the transmitter to the receiver and back again.

2. The Variable Resistance Method used by Appellees.

In the variable resistance method the operative current has its source in a battery without which it would have no life. The current flows from the battery with a constant energy and direction, and the needed changes in it are caused by a variation of the resistance to its flow.

This is known in the arts as the "loose contact," "variable contact" or "variable resistance" method. In every apparatus devised to work by this method -- beginning with that of Reis, in 1861 -- the necessity to keep the contact loose and variable introduces the possibility that the variation may be carried to the extent of breaking it altogether, by exceeding a certain degree of loudness in the tones which it is called on to take up and transmit. With this mechanical element in its construction, by which when apparatus, working automatically, constantly varies the connection of its parts -- sometimes separating them entirely -- the circuit cannot properly be spoken of as a "closed circuit" within the sense of this patent, because it may be broken.

In the variable resistance method the energy of sound-waves is taken up by a movable diaphragm, which being acted upon by the impact of the air particles, moves to and fro in such a way as to produce a constant variation of pressure between the electrodes, from one to the other of which a current must pass (in conventional phrase) from its source in the battery to the receiver. By a well-known law this variation of pressure results in a constantly changing degree of resistance to the passage of the current, which has the effect to weaken or strengthen the current momentarily throughout the entire line, whereby the magnetic attraction of the electromagnet in the receiver is varied and its related diaphragm is moved accordingly. All this being done under the influence of the movements of the first diaphragm, the result is that the second diaphragm copies the movements of the first and thereby causes air vibrations at the receiving station similar to those accompanying the original sound.

These two ways of producing current changes by the energy of sound-waves are two different methods in the arts and the law; and would be proper subjects of separate patents. The magneto method, invented by Bell, as appellants insist, is what is referred to by him in the fifth claim as "The method of . . . transmitting," etc. Such a reading satisfies the facts, the context of the specification and every other demand except the cupidity of his assignees.

The essential characteristics -- more abstractly stated -- which distinguish the variable resistance method are: That the current originates in a battery; that the cause of work is a disturbance of the flow of that current by a variation of resistance in the conductor, thus creating undulations or vicissitudes of strength in the current; and that the working of the method depends on the circuit being capable of being open or closed -- with a capacity for all degrees of pressure between the surfaces of the electrodes, from utmost contact to no contact.

In order that the apparatus capable of use in this may be contrasted with that capable of use in the other method, we exhibit an outline drawing of the Blake transmitter, a variable resistance instrument now in universal use by the Bill Company, and which is as incapable of being used by Bell's method, as Bell's apparatus is of being used by the Blake, or variable resistance, method.

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[At this point Mr. Lowrey explained the principles and modes of operation of different telephonic apparatus, illustrating by large models of Bell's Fig. 7, as a pure example of the magneto telephone; and of the Blake and molecular transmitters, as examples of the variable resistance telephones, of which, as he stated, there are numerous forms. He contrasted the Blake transmitter with the Reis-Legat, deducing from the fact that both were provided with springs and adjusting screws by which to control the degree of pressure between the electrodes, that they are alike variable resistance instruments; and that the sole and entire effect of appellees' argument was to allow the Reis-Legat screw to be turned (say) twice -- at which adjustment perhaps the transmitter would not transmit -- and to prevent it being turned three times, at which adjustment speech could certainly be heard.]

The early judgments sustaining Bell's claim were founded on "concessions" which were not true -- and were not conceded.

The claim of Bell to every transmission of sound "by causing electrical undulations similar in form to the vibrations of the air" (that being only another way of claiming the transmission of sound by transmitting it), needed a broad base to support it. This was supplied by the astounding concession made to him (by the court) in the Spencer case, that he is "admitted . . . to be the original first inventor of any mode of transmitting speech," and by the further statement, "but Bell discovered a new art, -- that of transmitting speech by electricity, -- and has a right to hold the broadest claim for it which can be permitted in any case; not to the abstract right of sending sounds by telegraph without any regard to means, but to all means and processes which he has both invented and claimed;" and that "the invention is nothing less than the transfer to a wire of electrical vibrations like those which a sound has produced in the air." 8 Fed. Rep. 511.

If these concessions had been true, the consequences inferred would be fairly disputable; but they are not true.

This Court must consider:

(1) Of what does this "art" consist?

(2) Had it not, as a generic art, been discovered and announced to the world prior to the date of Mr. Bell's investigations?

(3) Does not the state of the art at the date of Bell's invention necessarily limit his fifth claim to that natural interpretation which covers whatever is accomplished by uttering a sound before the transmitter of a magneto telephone connected in an hermetically closed circuit -- that being his only invention.

The operating of such an apparatus, by the energy of air waves, is a method of setting on foot the transmission of sounds.

It is the method, and the only method described in the specification of the patent in connection with the transmitting of sounds; and it is the only method capable of use by the apparatus delineated and described in the same connection.

A claim for "the method of and apparatus for" doing any particular thing must mean a method by which the designated apparatus can work; and an apparatus by which the described method can be employed.

It is an axiom of patent law that an inventor ay claim a NEW ART by pointing out an old apparatus; but can he claim an OLD art by pointing out a NEW APPARATUS?

Reis's "Telephone."

In 1861, Philipp Reis, of Germany, made an instrument intended for the electrical transmission of "all sounds capable of being perceived by the human ear," and publicly described it in an article entitled, "On Telephony by Means of the Galvanic Current." This instrument was called a telephone. The means of using it, and the details of its action (both those which were observed and known, and those which were beyond the inventor's means for observation, and could therefore be spoken of speculatively only), were set forth. The acoustical and electrical principles which were then and are now supposed to underlie the operation of every telephone were explained in this paper. The sworn evidence of numerous witnesses is that the apparatus succeeded well in transmitting the tones of various instruments, and the tones of the human voice in the singing of words, and that it did also, on numerous occasions, transmit and reproduce the tones of the human voice in speaking. To this there is the testimony of Professor Quincke, at present vice-rector and actual head of the Heidelberg University;*fn1a Dr. Rudolph Messel, a well-known chemist of London; Johann Philipp Schmidt, paymaster in the Imperial German Navy; Heinrich Hold, of Friedrichsdorf; Johann Hausser, music teacher, in Wasselheim; and others.

From time to time other instruments similar in mechanical action were constructed by Reis for the same purpose. One of them was publicly explained by V. Legat, Royal Prussian Telegraph Inspector, in 1862. Concerning these different instruments, the evidence is now that without material change of any of their parts, they will, with care and proper adjustment, all transmit speech, though imperfectly. This adjustment is, in the case of the Reis-Legat instrument, by means of a set screw and spring by which the contact of the electrodes is controlled; in the case of the cubical box instrument, by proper weighting of the parts with the same object; and by similar means in the case of the bored block instrument. The witnesses to this are Professors Brackett and Young, of Princeton College; Prof. A. E. Dolbear, of Tufts College, Boston; Prof. Charles R. Cross (appellees' expert); Messrs. Channing, Waite, Green, Paddock, and others. There is proof by several witnesses that in 1869, in the City of New York, at a public exhibition, they heard such instruments -- made by Prof. Van der Weyde -- transmit and reproduce the tones of the human voice in singing, and were able to distinguish words, which they now repeat.

With what has been said it will now be convenient to consider various facts and arguments as to their bearing on the subject stated, and which may for convenience be restated as follows:

(1) The general history of the art of sound transmission, -- which is to be examined with a view to determine whether the principles of that art were not known before Bell's investigations.

(2) The general language and true scope and meaning of the patent of 1876, -- which is to be examined with a view to determine whether it has been unwarrantably expanded by construction; and

(3) Whether under any circumstances so broad an interpretation as that adopted in the courts below can be sustained.

The Principles of Sound Transmission.

Electric telephony rests upon the sciences of acoustics and electricity, or magnetism.

Acoustics is that branch of natural philosophy which treats of the physical nature of sound, and the laws of its origin, propagation and effects.

Sound may be considered as a physical, or as a physiological phenomenon.

Physically, it is a particular vibratory motion in ordinary matter. Its existence implies that the sound-producing body has been thrown by some means into a state of agitation or tremor, which motion has been communicated to the neighboring air particles.

Considered in the physiological sense, sound is a sensation of the organ of hearing and of the brain. In order that the ear may be affected and the sensation of tone evoked, it is necessary that there should be interposed between the sounding body and the ear, one or more intermediate bodies (media) capable of molecular vibration. The air forms the most important medium for this purpose, but all matter may serve to transmit motion; that is to say, one particle or one mass of matter being by motion brought in contact with another, causes the other to move similarly, and in that way motion is said to be transmitted. The approximate cause of the sensation of sound is the condensation and rarefaction of the air lying against the ear drum. Thus sound begins in the motion of matter and results in the production of a physiological effect. In that effect the ear recognizes the character of the motion. It recognizes (1) pitch -- that is, that the sounds are high or low; (2) intensity -- that is, that the sounds are loud or soft; (3) quality -- that is, they are distinguishable as emanating from one or another instrument, from the human voice, or from one or many of countless causes.

These effects arise from differences in (1) the extent, (2) the number and (3) the character of the vibrations made by an air particle in obedience to some motion of the sound-producing cause

Simple and Compound Sounds.

All sounds capable of being appreciated by the ear are simple or compound; and among compound sounds, the most complex are the sounds of articulate speech.

A simple sound is one which causes the air particles to move in a straight line to and fro with a velocity of uniform increase and decrease; and is called pendular, because in this respect it is like the motion of a pendulum. That motion is represented by a curve called "sinusoidal," as follows:

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A compound sound is one which is composed of several tones each of which, if sounded alone, would give to the air particle a pendular motion, but which, when sounded together, give it an irregular motion, compounded of all the forces of the different sounds. Compound sounds are variously represented, and are for illustration represented by the following plate, which shows by different lines from a to b all the motions of six different tones; while the line from c to d represents the actual motion which the air particle takes on in obedience to the simultaneous sounding of all these different tones. In this case it appears that the air particle sprang at once to a maximum of speed, which it reached -- speaking ...


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