American Bell Telephone Co. v. People's Telephone Co.

• Decision Date: 01 January 1884
• Citation: 22 F. 309
• Parties: AMERICAN BELL TELEPHONE CO. and others v. PEOPLE'S TELEPHONE CO. and others.
• Court: U.S. District Court — Southern District of New York

22 F. 309

AMERICAN BELL TELEPHONE CO. and others v. PEOPLE'S TELEPHONE CO. and others.

United States Circuit Court, S.D. New York.

January 01, 1884

Dickerson & Dickerson, for complainants. Edwd. N. Dickerson, Roscoe Conkling, S. J. Storrow, and Chauncey Smith, of counsel.

Lysander Hill, for defendants. Geo. F. Edmunds, Lysander Hill, and Church & Church, of counsel.

WALLACE J.

This suit is brought to enjoin the defendants from using and furnishing to others for use the several inventions described in two patents granted to Alexander Graham Bell, of Salem Massachusetts, being No. 174,465, bearing date March 7, 1876 for 'Improvements in Telegraphy,' and No. 186,787 bearing date January 30, 1877, for 'Improvements in Electric Telephony.' The issues made by the pleadings are practically resolved into the single question, to which the proofs and argument of counsel are mainly addressed, whether the patentee Bell, or Daniel Drawbaugh, of Milltown, in Cumberland county, Pennsylvania, was the first inventor of the electric speaking telephone. Concededly, Bell was an original inventor of the telephone, the principle of which, with the essential means for its application, are described in his first patent, and of the improved apparatus described in his second patent. The fifth claim of the first patent is for '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. ' This patent has been judicially construed in two cases in the Massachusetts circuit; and in both cases it was substantially held that Bell was the discoverer of the new art of transmitting speech by electricity, and that the claim should receive the broadest interpretation to secure to the inventor, not the abstract right of sending sounds by telegraph without regard to means, but all means and processes described which are essential to the application of the principle. American Bell Telephone Co. v. Spencer, 8 F. 509; Same v. Dolbear, 15 F. 448.

In view of the conclusion reached upon the merits of the issue, it is not material whether Bell's inceptive invention did or did not antedate the time of filing his application for the first patent. That application was filed February 14, 1876. It describes apparatus which was an articulating telephone, whether Bell knew it or not. Mr. Cross, an expert, caused apparatus to be made in conformity to the description and to drawings as shown in figure 7 of the patent, which proved itself to be an operative, practical telephone. Probably the date of his inceptive invention might be carried back to July, 1875, but, irrespective of the time of the invention, the justice of his claim to be an original inventor of the telephone must remain unchallenged. It was through him also that the telephone was made known to the scientific public, and thence introduced into commercial use.

The defendants contend that long before Bell had perfected his invention, and long before its mental conception by him, Drawbaugh had not only made the same invention, but had perfected improvements in organization and detail which Bell never reached, and which were only reached years afterwards by the work of many other inventors in the same field of improvement. Their theory of the facts is stated with substantial accuracy in the answer to the bill of complaint. The answer, among other things, avers that Drawbaugh 'was and is the original and first inventor and discoverer of the art of communicating articulate speech between distant places by voltaic and magneto electricity, and of the construction and operation of machines and instruments for carrying such art into practice * * *; that the said electric speaking telephones so constructed and successfully and practically used by him contained all the material and substantial parts and inventions patented' in the two patents granted to Bell, and also contained other important and valuable inventions in electric and magneto telegraphy * * *; 'that some of the original machines and instruments invented, made, used, and exhibited to many others long prior to the alleged inventions of Bell are still in existence and capable of successful practical operation and use, and are identified by a large number of persons who personally tested and used and know of their practical operation and use in the years 1870, 1871, 1872, 1873, 1874 and both subsequently and prior thereto * * *; that said Drawbaugh, for more than 10 years prior to 1880, was miserably poor, in debt, with a large and helpless family dependent upon his daily labor for support, and was from such cause alone utterly unable to patent his said invention or caveat it, or manufacture and introduce it upon the market; and that said Drawbaugh never abandoned nor acknowledge the claims of any other person thereto, but always persisted in his claim to it, and intended to patent it as soon as he could obtain the necessary pecuniary means therefor.'

Drawbaugh, in his testimony, adopts the statements of the answer as true. He also testifies that he commenced his experiments with the electric telephone as early as 1866; that prior to or as early as in 1867 he had made apparatus (in which he employed a tea-cup as the transmitter) through which speech could be transmitted feebly and incoherently; and that as early as the time of the birth of his son Charles he had so progressed that his wife, who was then confined to her bed, could, by listening with one of his instruments, hear the words spoken by him in the other instrument in a distant part of the house. His son Charles was born in 1870, and, if Drawbaugh's narrative is true, he had succeeded at that time in transmitting speech distinctly through the instruments, although whispered words would not be accurately heard. He describes instruments which he says were made by him from time to time as experiments led him from one improvement to another. He testifies that he thinks he made his first telephone apparatus prior to November, 1866, and is positive he had it before he moved his shop to the 'Clover-mill' in 1867. As he describes it the body of the transmitter was a porcelain tea-cup, the diaphragm was of membrane, the electrodes interposed in the circuit were two copper disks, the upper one of which was connected to the diaphragm by a wire so as to vary its pressure upon a low conductor of fine earth or pulverized charcoal interposed between the disks through the action of the sound waves upon the diaphragm, and the receiver was a tin can without a top or bottom, having a membrane diaphragm stretched over one end connected by a tense cord to an armature supported on a spring and arranged close to the poles of an electro-magnet in the electric circuit. He testifies that subsequently he constructed apparatus upon the same general principle, with some change of detail, and he produces Exhibits F and B, the former a transmitter and the latter a receiver, as the remnants of the original instruments. Exhibit F is a glass tumbler; and he states that at first he used a membrane diaphragm over it, and then one of thin metal, and that for the conductor he used pulverized carbon, or carbon mixed with bronze powder, and used various tops or mouth-pieces to speak into it. The Exhibit B, he says, was the receiver, and in this he had discarded the string and the spring of his earlier receiver. He says that experiment led him to improve the transmitter, F, by substituting a metal diaphragm in place of membrane, and he produces a sketch. A reproduction of this instrument has been made by him for use in the proofs which is designated as 'Exhibit F reproduced.' In this the mouth-piece is modified in size and in distance from the diaphragm. He made, according to his testimony, a new receiver of more perfect construction, and produces the remnant of the original, which is designated as 'Exhibit C.' As he describes the instrument it was a decided advance upon the former receiver. In using this he says he tested it also as a transmitter with some success, and then improved it by placing a permanent magnet against the heel of the electro-magnet, and thus made a magneto telephone. A reproduction of such an instrument as he describes is made and referred to in the proofs as 'Exhibit Reproduced C.' After Exhibit C he produces Exhibits I, A, E, and D as likewise original instruments, made respectively in the chronological order of their production as exhibits. He states that I was used by him as a companion instrument to C. Exhibit A discloses a modification of form and a higher degree of mechanical adaptation. The last two, D and E, are concededly perfect, practical instruments, and according to the testimony of Mr. Benjamin, an expert witness for the defendants, would compete successfully for public patronage with any magneto telephone which had been introduced into use in 1882. It is asserted of these instruments by counsel that no higher development of the magneto telephone has been reached at the present time than is indicated by Exhibits E and D. Drawbaugh does not attempt to fix the time at which he made any of these instruments, or even the year. He testifies, however, that he made all of them prior to the time the axle company commenced business, which was in December, 1874, except E and D which were made about that time.

The theory of the defendants is that Exhibits F and B were used by Drawbaugh in 1867, 1868, and 1869, Exhibit C in 1869 and 1870, Exhibit I in 1870 and 1871, Exhibit A in 1873 and 1874, and that Exhibits E and D were made in January or February, 1875, although cruder instruments essentially similar were made...