Six Score and Ten Years Ago This Week

130 years ago this week, something happened that impacted the world in general, the direction of an important area of U.S. law, and the immediate temporal well-being of my family today.

Care to hazard a guess? (Hint: you’re probably going to be wrong.)

During this week, 130 years ago, on March 7, 1876, a U.S. patent issued disclosing a "system of telegraphy in which the receiver is set in vibration by the employment of undulatory currents of electricity. . ." Patent No. 174,465, Claim 1.  In other words- the patent claimed the first telephone!  Three days later, as Bell was testing out his invention with Thomas Watson, his assistant, next door, he shouted something into the telephone (he is alleged to have shouted "Watson, come here. I want you!" after spilling battery acid, which he was using as a transmitting liquid in experimenting with the newly disclosed invention).  Whatever he shouted, Watson heard it on the phone, and for the first time a human voice was transmitted by electricity.

1876tele

The ’465 Patent Has Changed The World:

The world has come a long way in telecommunications since this first telephone, pictured off the the left, was disclosed in Patent No. 174,465.  We now have cell phones that act as mini-computers.  The telephone and the resulting innovations from that one invention over the last 130 years have played a major role in making the world the small place that it is today.  Not too long ago, I was videoconferencing via the Internet with my brother who lives in Japan, completely free of charge! We could see and chat with each other in real time.  It was amazing to consider how far we have come, and how much instant communication has changed the world.

And such communications have largely changed the world for the better.  I probably would not be typing on this blog right now had the telephone not been invented (OK- that may actually be a way in which the world is worse).  Telephones have facilitated life-saving medical care in a quick way (people dialing 911; doctors having video conferences, during surgery, with leading surgeons for a consult), increased world security (instant knowledge in generally every country about any threat to world security), and better family relationships (ability to keep in touch better and more quickly with family, for one thing) to name a few.  Indeed, the "electrical speech machine" claimed by the ’465 patent paved the way for the information superhighway we have today

The telephone has also caused some disadvantages in my opinion, such as: being an unnecessary distraction if not controlled (for example, when the cell phone rings during an important family event with an important crisis at work); facilitating complicated terrorist attacks; and allowing for quick and easy distribution of a plethora of morally harmful stuff, like prngrphy, explicit conversations, etc.

Whether for good or bad, to our advantage or disadvantage, the advent of the telephone has changed the world we live in.

The ’465 Patent Has Shaped U.S. Patent Laws:

The fact that Bell only spoke those famous (though disputed) words into the telephone three days after his patent issued proved significant for the development of the key term "invention" as it is understood in the U.S. patent statutes today.  Indeed, beginning in 1883 Bell faced over 600 patent lawsuits, which culminated in the single largest Supreme Court decision ever written: it is the only Supreme Court opinion filling an entire volume of U.S. reports.  See The Telephone Cases, 126 U.S. 1 (1888). 

These cases carved indelibly into the American patent jurisprudence the notion that the notion of "invention," for purposes of its use in U.S. Patent Act, need not include an actual finished product in order to qualify for a patent.  As held in that case:

The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection. It is enough if he describes his method with sufficient clearness and precision to enable those skilled in the matter to understand what the process is, and if he points out some practicable way of putting it into operation.

The Telephone Cases, 126 U.S. at 535-36.  Thus, the patent issued 130 years ago this week, as well as Bell’s other patents, were appropriately issued, and not invalid, despite that fact that Bell had not spoken those famous words to Watson until three days after the patent issued.

This holding has since been quoted numerous times in nearly all of the seminal patent cases over the last 120 years dealing with what constitutes patentable subject matter.  This holding has had implications in all aspects of patent law.  For example, the Supreme Court in Pfaff v. Wells Electronics, Inc. affirmed the lower court’s invalidation of a patent where, more than one year prior to the date of filing the patent application, an inventor "provided [a] manufacturer with a description and drawings that had ‘sufficient clearness and precision to enable those skilled in the matter’ to produce the device."’  525 U.S. 55, 62-63 (1998).  This behavior, engaged in more than a year prior to the filing of a patent application, thus constituted the so-called "on-sale" "statutory bar" to receiving a patent as defined under 35 U.S.C. 102(b), and thanks to the definition of "invention" chiseled into the U.S. patent laws by the Telephone Cases, the thing being marketed or sold need not even have been made to prevent an inventor from getting a patent! 

This is just one of the many examples regarding the impact of the ’465 patent, through the Telephone Cases, on our U.S. patent system.

The ’465 Patent Has Had A Direct Impact On The Temporal Well-being Of My Family:

Going from broad (the impact on the world) to very narrow (the impact on my family), the ’465 patent has affected the financial well-being of my family in a very direct way.  It’s not just because we use a telephone to aide in our business endeavors.  And no, we are not telemarketers.  Rather, the ’465 patent has directly affected my family’s financial well-being because I work for the law firm which litigated the 600 patents culminating in Supreme Court decision in the Telephone Cases.  Indeed, my firm built its business around that high stakes patent litigation, and has now been protecting the intellectual property rights of its clients for over 125 years. 

Were it not for the ’465 Patent issued 130 years ago this week, I would probably not be doing patent litigation as a career at what has become one of the top intellectual property firms in the country.

Conclusion:

All in all, but for the fact that a patent issued this week 130 years ago which disclosed an apparatus for transmitting sound with electricity, the world might have looked different (although admittedly there were other innovators discovering the same or similar technology- Elisha Gray comes to mind), patent law may not have had such a stark development when it did, and I would probably work elsewhere.

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3 Responses to Six Score and Ten Years Ago This Week

  1. Guess it slipped my mind that you do IP work. Do you have an undergraduate in engineering? Have you met Mark Perdue? He’s a member of the local IP bar and used to do (may still do) the lead edits on the UT law review issue every year on IP.

    He was a partner of mine when I was a partner downtown, before I changed jobs and he did too.

  2. Jordan says:

    I do not have a technical background- I am in litigation. As you probably know, one only needs a technical background in the IP world in order to prosecute patents and practice in from of the patent office. But a technical degree is not required to litigate over patents in the United States District Courts.

    I have not met that attorney yet, though I did just return from an annual meeting of the Texas State Bar IP Section (in San Antonio).

  3. john f. says:

    Great post and interesting history.

    As to your firm, that’s pretty cool and all, but I’ll raise you one Colorado River Compact!

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