Henry Billings Brown

“ Indeed, the frequency with which testimony is tortured, or fabricated outright, to build up the defense of a prior use of the thing patented, goes far to justify the popular impression that the inventor may be treated as the lawful prey of the infringer. ”

“ It further appeared that, in 1866, Morley took out a patent for a triangular cattle pen, built of posts and boards supported upon wheels, so constructed that it could be moved by the animal inside of it. Some seven or eight witnesses testified that at different times when they saw this machine it had on it one or more strands of fence-wire with barbs or prickers on them, put on in the same manner as were the barbs on the Delhi fair exhibit, and the whole strung on the top of the posts above the boards. ”

“ Something was needed, not so much to strengthen them, as to deter cattle from encountering them or testing their strength. Natural hedges of thorn, which in effect contain the principle of the barbed wire, have been employed both in this country and in England from time immemorial. Fences of other materials and various forms had been armed with pickets, spurs, iron points, spikes, sharp stones, or bits of broken glass inserted in plaster, but prior to 1867 no one seems to have conceived the idea of arming wire fences with a similar protecting device. ”

“ In one case a flat bit of metal is used, of an elongated diamond shape, through which a hole is pierced, by means of which it is strung upon the wire, requiring something more than the aid of a second wire twisted upon the first to render it immovable; in the other, the barb is a piece of wire coiled about one of the fence-wires, and held rigidly in place by the twisting of another wire about the first. ”

“ This patent contained the first suggestion of a barb proper, though in a very imperfect form; but it embodied an idea of which the public was not slow to avail itself, and gave an impetus to succeeding inventors, which finally resulted in the barbed fence now in use. Though valuable as illustrating the state of the art, it will scarcely be claimed to be an anticipation of the Glidden device. ”

“ The sales of the Kelly patent never seem to have exceeded 3,000 tons per annum, while plaintiff's manufacture and sales of the Glidden device (substituting a sharp barb for a blunt one) rose rapidly from 50 tons in 1874 to 44,000 tons in 1886, while those of its licensees in 1887 reached the enormous amount of 173,000 tons. In deed, one who has traveled upon the western plains of this continent cannot have failed to notice the very large amount of territory inclosed by these fences, which otherwise, owing to the great scarcity of wood, would have to be left unprotected. ”

“ It also appears that after 1861 the county fairs of Delaware county were held in Manchester, so that whatever was exhibited by Morley at Delhi preceded by several years the application for the Glidden patent. The testimony of the defendants tended to show, and we are indebted to the court below for an abstract of it, that, at the time the fair was being held at Delhi in 1858 and 1859, Morley came to the house of one Dubois, a farmer living in Delaware county, having with him a piece of fence-wire, which had short pieces of wire wound around it ”

“ It is very improbable that it could have been invented by a boy in his early teens, such as Beers then was; and it is shown that he subsequently took out a license under the Glidden patent after being defeated in a suit brought against Haish for the infringement of this patent, in which his device was set up as an anticipation. The testimony also indicates that the exhibit is constructed of a variety of steel which did not come into use until after 1870. Upon the whole, the evidence fails to satisfy us that this fence was constructed before application was made for the Glidden patent. ”

“ One of his sons testified that he visited Iowa once, in 1858, 1859, or 1860, and that he was at his father's mill for some time, and saw no barbed wire about it, nor did he hear his father say anything about it. It is useless to go further into the detail of this testimony. ”

“ Upon the other hand, plaintiff met this testimony with that of a large number of witnesses who had seen these fences, and also the cattle pen, and who testified that there was no barbed wire connected with them. The members of Morley's family, including his widow and sons, were also sworn, and testified to the effect that he had never said anything about barbed wire or barbed-wire fences, although it is but just to say that they remained in Pennsylvania, and had never resided in Iowa. ”

“ There are many instances in the reported decisions of this court where a monopoly has been sustained in favor of the last of a series of inventors, all of whom were groping to attain a certain result, which only the last one of the number seemed able to grasp. ”

“ Rep. 661, it was held that if this reissued patent were to be considered as covering more than the mode of fastening the plate bars to the wire in the combination stated, i. e., by hammering, and as extending the use of the twisted wire so as to include its use for the distribution locking of all kinds of barbs, the reissue was invalid as to such extension, because it was not included within the scope of the original invention. ”

“ He says of this in his specification: 'I can, where it is desirable to increase the strengh of the wire, lay another wire of the same of a different size along-side of a thorn-wire, and can twist the two together by any suitable mechanism.' No claim was made for this method of construction in the original patent, although it seems to have been made the principal feature of a reissue obtained in 1876, which was not made an exhibit in this case. In this reissue he made a claim for twisting two wires and a series of thorns strung upon one of the wires, and held in position by them. ”

“ They may be so placed that they will all stand in the same plane, or they may stand irregularly in many different planes. I prefer the latter arrangement. The wire thus provided with the sharp points or thorns serves in the ordinary manner, with the addition of possessing an offensive character, which will soon teach cattle to respect it, and not attempt to force it.' Fig. 2 of this patent-a representation of which is here given-undoubtedly contained the idea subsequently developed by Glidden, but there was apparently no method of holding the barb in place, save by a blow of a hammer ”