David Josiah Brewer

“ The government, therefore, if seeking simply to protect the right of an individual, ought not to be permitted to maintain a suit in equity to cancel that against which the individual has a perfect legal defense available in any action brought by or against him. The query is pressed whether the same rule would not also apply when the government is only seeking to protect the public at large, for the public is but the aggregation of all the individuals, and, if each of them has a perfect defense to the patent, so all together have. ”

“ Suppose that at the expiration of this Berliner patent some new invention shall be made by which, in connection with those already free to the public, an instrument can be manufactured far surpassing in utility that used to day, and the Bell Company shall purchase that invention the public, which always insists on having the best and most serviceable, will undoubtedly take the new instrument, and in that way it may happen that what is called the 'telephone monopoly' is practically still further continued. ”

“ It is not to be admitted that the titles by which so much property in this country and so many rights are held, purporting to emanate from the authoritative action of the officers of the government, and, as in this case, under the seal and signature of the president of the United States himself, shall be dependent upon the hazard of successful resistance to the whims and caprices of every person who chooses to attack them in a court of justice ”

“ Counsel seem to argue that one who has made an invention, and thereupon applies for a patent therefor, occupies, as it were, the position of a quasi trustee for the public; that he is under a sort of moral obligation to see that the public acquires the right to the free use of that invention as soon as is conveniently possible. We dissent entirely from the thought thus urged. The inventor is one who has discovered something of value. ”

“ If the public is interested in prompt action, if the government, which represents the public, thinks that more speed on the part of its tribunals is essential, it is the government which is called upon to act, and the applicant may with propriety wait until either the tribunal has acted, or until the government, having regard for the public interest, has interfered to compel action. Accepting the statement of counsel as to the facts to be correct in all its fullness, consider what would have been the ruling of a court if an application had been made to it based upon those facts. ”

“ Justice Miller for the court in the Maxwell Land Grant Case, that a suit between individuals to set aside an instrument for fraud can only be sustained when the testimony in respect to the fraud is clear, unequivocal, and convincing, and cannot be done upon a bare preponderance of evidence which leaves the issue in doubt, and that, if this be the settled rule in respect to suits between individuals, it is much more so when the government attempts to set aside its solemn patent. ”

“ Counsel do not put the finger on a single fact tending to show that any money was ever paid to any official of the patent office, or that any undue influence was ever attempted to be exerted upon or improper suggestion made to any one. So far as the record discloses, there never was an intimation made to a single official that he could profit in any way by a moment's delay. All thought of wrong in this respect may, therefore, be put aside. ”

“ A party seeking a right under the patent statutes may avail himself of all their provisions, and the courts may not deny him the benefit of a single one. These are questions not of natural, but of purely statutory, right. Congress, instead of fixing seventeen, had the power to fix thirty, years as the life of a patent. No court can disregard any statutory provisions in respect to these matters on the ground that in its judgment they are unwise or prejudicial to the interests of the public. ”

“ One of the familiar rules of equity, reinforced by statute (section 723, Rev. St.) , is that 'suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law.' The objection to the validity of this patent on the ground that it was already covered by the patent of 1880 is a defense which, under the statutes (section 4920, Rev. St.) , is open to every individual charged by the patentee with infringement, whether the proceeding against him be an action at law or a suit in equity. ”

“ But while he invented the telephone, the apparatus he devised was inefficient for public uses. Berliner invented something by which, taken in connection with Edison's and Blake's inventions, Bell's undulatory current could be made practically available for carrying on conversation at long distances. In other words, the telephone, as we use it, that which has become such an important factor in the commercial and social life of to-day,-does not embody simply the invention of Bell, but also those of Edison, Blake, and Berliner. ”

“ Suits may be maintained by the government in its own courts to set aside one of its patents, not only when it has a proprietary and pecuniary interest in the result, but also when it is necessary in order to enable it to discharge its obligations to the public, and sometimes when the purpose and effect are simply to enforce the rights of an individual. In the former cases it has all the privileges and rights of a sovereign. The statutes of limitation do not run against it. The laches of its own officials does not debar its right. ”

“ Every right-minded man will feel it instinctively. Would it be a legal wrong?'
After discussing the injury to the public which results from the conduct described, they add:
'Hence a man who is enjoying a monopoly of a thing under one patent, and is at the same time prosecuting an application for another patent which will give him a monopoly of the same thing for a further period, is bound to speed his application.'
It will be perceived that it is conceded that some delay is unavoidable. In the very nature of things that is so. ”

“ If the Bell-Drawbaugh litigation had terminated the other way, and a different opinion on the part of a single member of this court would have changed this result, or if when the time came the commissioner of the patent office had decided against the Berliner application, and his decision been sustained on appeal to the supreme court of the District of Columbia, then all this brilliant scheme of realizing millions would have vanished into thin air. ”

“ It will not do to say that, because congress has declared that seventeen years is the life of a patent, seventeen years is the limit of the possible monopoly; for the same legislation that gives seventeen years as the life of a patent gives two years within which an application for a patent may be made, and during that time, as well as while the application is pending in the department, the applicant has practically, if not legally, an exclusive use. ”

“ It must keep coming before the commissioner, like the widow before the unjust judge in the parable, until it compels the declaration, 'though I fear not God nor regard man, yet, because this widow troubleth me, I will avenge her, lest by her continual coming she weary me.' But is this the rule to measure the conduct of those who apply for official action? ”

“ Patents issued as the result of long-pending interferences are always looked upon as odious monopolies, because of the manner in which they are enforced at the time when the public were already possessed of the invention. ”

“ Again, and as an illustration, perhaps, of the extent of the rule referred to, it has often been held that while one having the title to and possession of a tract of land can maintain a suit in equity to cancel a deed or other instrument which is a cloud upon the title, such suit cannot be sustained if the deed or instrument is void upon its face, its invalidity resting upon matters of record, and not affected by any lapse of time or statute of limitations. ”

“ Nowhere does it appear that the defendant urged, or even suggested, the propriety of such a delay. For the present we do not consider the wisdom or the rightfulness of the course pursued. All that we desire to notice is that it was not at the instance of the defendant.
It is further said that, even if there were at first any excuse for such 'tacit understanding,' and the patent office properly delayed action on this application until after the litigation between Drawbaugh and Bell had ended, a judgment therein was rendered in the circuit court in 1884 ”

“ It is, of course, easy to say that these applications, plications, these suggestions and requests, meant nothing; that they were a mere blind. But something more than assertion of counsel is necessary to destroy their significance, or to establish collusion between the applicant and the officials of the department. But the case does not stand upon the fact that the formal communications from the solicitor in charge of this application were few in number. While in every one in which the matter was referred to there was a request for action, it also appears from the testimony of Messrs. ”

“ St., an inventor has two years from the time his invention is disclosed to the public within which to make his application, and unless an abandonment is shown during that time he is entitled to a patent, and the patent runs, as any other patent, for seventeen years from its date. ”

“ Every communication that it made during those years carried with it a request for action, yet because the delay has resulted in enlarged profits to the applicant, and the fact that it would so result ought to have been known to it, it must be assumed that in some way it did cause the delay, and, having so caused the delay, ought to suffer therefor. There is seldom presented a case in which there is such an absolute and total failure of proof of wrong. ”

“ Popularly speaking, it may be said that the transmitter takes the varying sounds of the human voice, and passes them on to the telephone wire, to be borne along thereon by the undulatory electric current until they reach the receiver, which takes and passes them to the human ear. ”

“ The examiner's letters indicate an obstacle in the way; some portending interference or interferences, always coming, yet never arriving. But the supine submission of the company to such extraordinary dealy, for such a cause, is the first item of the proof. ”

“ St., requires an inventor to make application in writing to the commissioner of patents. That and the two or three succeeding sections prescribe what the application shall state, and by what it shall be accompanied. Section 4893 provides that on the filing of the application and the payment of fees 'the commissioner of patents shall cause an examination to be made of the alleged new invention or discovery ”

“ Bell's invention, it follows that the instrument was subject to two independent monopolies.
'Later, we will say, Mr. Edison discovered that the use of carbon as the material for the construction of the electrodes of the Berliner transmitter gave to that instrument a greatly increased power and reach of operation. Later still Mr. Blake devised a particular combination of carbon and metallic electrodes, with mechanism for their mounting, which secured an improved ease and permanence of adjustment and superior adaptation to common use. Mr. ”