The Top Ten Patent Wars – Telephones (#4)

While the smartphone patent wars have captivated recent legal news cycles, a much more controversial telephone war occurred in the late 1870s and 1880s based on a strange and curious fact – Alexander Graham Bell, who is now considered the inventor of the telephone, filed his telephone patent on the same day another inventor, Elisha Gray, filed his own patent application for the telephone. Bell’s was the fifth filed that day, February 14, 19876, while Gray’s was the 39th. In this case, Bell was granted U.S. Patent No. 174,465 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.” Gray filed his patent caveat only a few hours after Bell’s patent was filed (at the time a means to reserve a priority date, similar to today’s provisional applications, abolished in 1909). 

There have been various conspiracy theories that Bell knew of Gray’s upcoming filing and beat him to the Patent Office, but that issue was settled at the time by a patent “war” covering that and various other issues spanning an entire volume of the Supreme Court’s caselaw, captioned as Dolbear v. American Bell Telephone Company, et al., 126 U.S. 1, et seq. It was never decided that Bell had prior knowledge of Gray’s caveat, or that Bell took anything from Gray’s innovations (although there is evidence on both sides of these issues). Throughout these years, Bell’s patent was involved over 600 reported cases, but he never lost a judgment on the merits, and thus is remembered to history of the inventor of the telephone.

The Dolbear case was brought by Western Union as it fought Bell for monopoly-power in the telephone industry, but the Supreme Court found that Bell’s patent was valid despite numerous inventors coming before him, thus validating his claim to invention to the public. This included the inventions of Antonio Meucci, an Italian immigrant, who had also filed a caveat on a telephone invention a few years prior to both Bell and Gray, but was so poor at the time that his patent application needed to be filed, he could not afford it. 

The Supreme Court held that “It appears from the proof in these causes that Alexander Graham Bell was the first discoverer of the art or process of transferring to, or impressing upon, a continuous current of electricity in a closed circuit, by gradually changing its intensity, the vibrations of air produced by the human voice in articulate speech, in a way to cause the speech to be carried to and received by a listener at a distance on the line of the current; and this discovery was patentable under the patent laws of the United States.”

From a high level those “telephone wars” of the 19th century were similar to those of recent vintage – Bell prevailed, at the Supreme Court and in the court of public opinion, with Bell’s origin story of calling his assistant only three days after his patent was filed (the famous “Mr. Watson – come here” call, which was recorded in Bell’s notebook as taking place on February 17, 1876, a few days after the patent was filed). While others invented aspects of the telephone that Bell included in his patent, and others later made significant improvements, the device was called a “Bell telephone” as of the time of the Supreme Court opinion in Dolbear because it was Mr. Bell who the Supreme Court decided had patented a device “which transmits speech ‘by causing electrical undulations similar in form to the vibrations of the air accompanying’ the transmitted sound.” 

While the smartphone wars are not over yet, any early inventors in the space who do not have the highly-anticipated product launches or and the extensive R&D budgets have been eclipsed by those who do. By the time it reaches the courts, the public already has idea own thoughts on who deserves the credit. But at the same time, as Bell showed, perhaps that is the right result, as commercialization and invention are often closely related. While Gray, Meucci and others may have had great ideas, Bell is the one who captured them and launched the telephone industry. History is told by the victors.

Jeremy T. Elman

Jeremy T. Elman

Jeremy T. Elman is a trial lawyer who has appeared in over 75 IP matters for Fortune 500 companies and other high-profile technology companies, nearly a third as lead counsel.  He regularly writes about cutting-edge legal issues in the industry, especially in the software space.  Jeremy has been named as one of the Top 20 Cyber / AI Lawyers by the Daily Journal and the Most Effective Lawyer in IP by the Daily Business Review.  Jeremy practices in the areas of patent litigation, trade secret litigation, trademark litigation, copyright litigation, and other technology disputes.

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