Valentine’s Day patent war


By David Hejmanowski - Case Study



“Whatever evidence there is, is in favor of the caveat having been filed first.”

— Elisha Gray

“Great discoveries and improvements invariably involve the cooperation of many minds.”

— Alexander Graham Bell

Surely you won’t let Sunday’s historic holiday pass you by. Perhaps you plan to celebrate with a romantic phone call. Or a long-distance call to an old friend. Or a Zoom call. Or, really, any phone call at all. Because, if we’re thinking of the same historic holiday, a phone call of some kind has to be involved.

Oh, yes, I realize that Sunday is Valentine’s Day, but the historic event I’m referring to is the Feb. 14, 1876 race to the patent office between Alexander Graham Bell and Ohio’s own Elisha Gray. Their battle over the invention of the telephone spurred significant litigation that lasted for years.

Bell is well known for his “Watson, come here, I want to see you” moment, for his establishment of the Bell Telephone Company, and for being one of the founders of the National Geographic Society. But in the late 19th century, the battle between Bell and Gray was as well known as the electricity wars between Edison and Tesla.

Neither Bell nor Gray were the first to conceive of a practical mechanical communication system, and they were not the only ones working on prototypes. But they were the first to achieve the mechanical drawings and prototypes necessary to proceed to patent applications. Gray was born in Barnesville, Ohio, in Belmont County. He attended and taught at Oberlin College and founded the Western Electric Manufacturing Company in Cleveland — a company that became Lucent Technologies, prior to its acquisition by Nokia in 2016. During his lifetime, he accumulated more than 70 patents, including the earliest electronic synthesizer.

Gray’s company manufactured parts for Western Telegraph. Early telephone inventors considered their work as an extension of telegraph technology and, in fact, referred to the devices they were developing as “harmonic telegraphs.” There were technical differences in their inventions, but the filings of the two men arrived at the U.S. patent office in Washington within hours of one another on Valentine’s Day in 1876.

It is important here to note that, contrary to common belief, the timing of the applications’ arrival in D.C. is not actually important. That is because until the Leahy-Smith America Invents Act of 2011, America was not a “first to file” patent country, but rather a “first to invent” country in which the patent is granted to the person who can prove that they were the first to actually invent the device that is the subject of the patent. When the AIA took effect in 2013, the U.S. became a “first inventor to file” country in which the date of the filing controls but the person filing must still demonstrate that they actually invented (rather than stole) the device for which the patent is to be issued.

Regardless, it appears that Bell’s patent application was stamped immediately upon filing and was marked as the fifth filing of Feb. 14, 1876. Gray did not actually file a patent application, but rather a patent caveat — a sort of notice of the intent to later file a patent application. Gray’s caveat was marked as the 39th filing of the day, though the historical evidence suggests it was filed several hours before Bell’s application. On the advice of his attorneys, Gray eventually withdrew his caveat and U.S. patent number 174,465 was issued to Bell for the telephone.

That was merely the beginning of the dispute. For years, Bell and Gray haggled in court about whether Bell’s original filing had been modified, whether Bell had stolen or copied a portion of Gray’s caveat, and most importantly, whether Bell or his representatives had bribed an alcoholic patent worker who was an old army buddy of one of Bell’s lawyers.

No conspiracy was ever proven, and the patent investigation eventually concluded that the inventions operated on different principles: Gray had withdrawn his caveat and so didn’t have a legal leg to stand on, and, most importantly, Gray had never proceeded to a working model of his invention and so had no claim to priority over Bell’s invention which had, therefore, occurred first. Bell went on to dozens of other inventions, including research into recording devices, medical equipment, flight and alternative energy.

The Valentine’s Day filing battle between Bell and Gray shaped the world that now brings us ubiquitous telephonic communication, texting and wireless data transfer — the technologies that have kept us connected during the pandemic.

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By David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.