GOODYEAR SEEKS OUT DANIEL WEBSTER
While Elias Howe was fuming over the physical violence threatened against him by Singer, sixty miles south in Trenton, N.J., Charles Goodyear had also reached his limit. After sweating and toiling for sixteen years over tens of thousands of rubber samples, enduring visits to debtor’s prison, and finally discovering the vulcanization secret almost by accident, success now appeared to be a sure thing—except for Horace Day’s meddling.
With Day’s bold move in stealing Goodyear’s vulcanization process, then attempting to patent it as his own, the normally mild-mannered Goodyear was livid, taking this as a personal affront to his honor. By 1851 Goodyear was in a state of depression—the result of nearly a decade-long battle with Day. The issues between the two men had reached an impasse, and the issues between them were about to be decided in a Trenton, New Jersey courtroom. For both men, the ire between them was all consuming—hotter than fires they used to vulcanize the very rubber they were fighting over.
That same year, Goodyear had ventured to England, intent on breaking into European markets, even without a British patent. His best opportunity was at the Great Exhibition in London’s Hyde Park, which opened on May 1, 1851. Goodyear wasn’t the only American inventor showing off his wares. Sam Colt also had a booth inside the enormous Crystal Palace to tout his 500 revolvers. Cyrus McCormick paid a visit as well, with an array of reapers—as did his main rival Obed Hussey. When the two squared off in a reaper’s duel, thousands of farmers watched McCormick demolish Hussey.
Goodyear’s display outshone those of both Colt and McCormick. Spending $30,000, Goodyear made sure that even the walls of his exhibit space were made out of rubber. Goodyear worked tirelessly for months, suffering through a stint of gout, to make everything perfect, as he always did. Instead of a single room like most of the other exhibits, Goodyear rented three, all filled with an imaginative assortment of rubber goods. It was floor to ceiling rubber. When visitors entered the display, they were greeted by a rubber desk. After that came rubber balloons, canes, doll heads, and ship sails. The Goodyear exhibit was so popular that it was continuously thronged by visitors and praised by the London papers.
Goodyear’s days of glory in England and at the Great Exhibition were short-lived. When he returned home, Goodyear was again out of cash, and now what appeared to be his final battle with Horace Day was imminent. Tense as the days leading up to trial were becoming, having his day in court would at least bring some measure of relief. What Goodyear needed was finality, an end to the years of feuding.
Horace Day had no conscience when it came to selling Goodyear’s rubber. Not only had he failed to pay Goodyear his license fees, Day was now producing all sorts of rubber products. Goodyear desperately needed a victory.
Back in September, 1850, Goodyear had come to the conclusion that more litigation with Day was inevitable. By then, Day was openly hostile toward Goodyear’s patent, claiming it was a fraud and a swindle. He even petitioned Congress to repeal Goodyear’s patent. Day’s petition was simply ignored.
Partly to deal with Day, the Goodyear Shoe Association was formed. This was one of the first trade associations in America and included shoe manufactures who had taken a license to the Goodyear patent. The association collected three cents per shoe to raise money to stop Day. The association took out advertisements warning consumers that any rubber shoes manufactured by Day infringed Goodyear’s patents.
Bolstered by the backing of the trade association, Goodyear instructed his attorney to file suit against Day in Trenton, seeking an injunction. Probably because the case was to be heard on Day’s own turf, in early 1851 Goodyear’s attorney also filed a second suit against Day in Boston, then sought to stall the Trenton case so that Goodyear could get a sympathetic ear in Massachusetts.
But Goodyear needed another lawyer on his team—the best lawyer in America—to argue his case. With the help of the Goodyear Shoe Association, he considered his options. It would have been easier if money wasn’t an issue—but it was. With the large expenditures in London, Goodyear’s financial means were limited. Still, that didn’t stop him when he realized that retaining Daniel Webster, the current Secretary of State to Millard Fillmore, was within the realm of possibility.
Goodyear’s team offered Webster $10,000 to argue his case of patent infringement against Day, with a $5,000 kicker if he won. George Griswold, a New York rubber manufacturer, offered to throw in another $1,000. Even with his government responsibilities, Webster readily accepted.
In some ways, Webster and Goodyear were very similar. They were both passionate and acted on principle. They both were also horrible with their check books. While Goodyear spent his money on rubber, Webster spent his on the fineries of life—an estate in Marshfield, high-priced vintages imbibed while dining the country’s social elite, and plenty of bad investments. They were both heavily in debt, and they both couldn’t stand to see a wrong go unchecked. It was a perfect match.
With his other commitments, it was impossible for Webster to handle all the details of the trial. Instead, Webster was saved for the closing arguments, like a closing pitcher in the ninth inning. Attending to the details were a team of patent lawyers, including Dickerson who had just handled Colt’s case.
Snow came early to Boston in the fall of 1851, essentially shutting down the city on October 28. So too was Goodyear’s Boston case. It now appeared that it might not even come to trial that year. This delay was unusual. That same year, Colt’s case had been filed, tried, and decided in a single summer.
While Daniel Webster was making his way from the nation’s capital to Boston, Day’s counsel, Rufus Choate, moved the Boston court to hold off hearing the case until after Goodyear’s trial in Trenton. According to Day, the previous September Goodyear had forced him to prepare for the Trenton trial, then claimed at the last minute that he wasn’t ready. Day viewed this as nothing more than a ruse to stay the Trenton case so that Goodyear could do battle in Boston, a much more favorable venue for Webster. Webster was now coming to Boston to ask the judge if the court could work around his busy schedule as Secretary of State and try the Boston case the day after Christmas.
Goodyear’s request for a Christmas trial in Boston was denied on October 25, 1851, when Judge Sprague agreed with Day and stayed the Boston case. For Sprague, the decision was easy. It saved his Christmas holiday and let the media circus have their day in New Jersey. When the news reached New Brunswick, papers reported that the night air rang with celebration as Day’s supporters cheered in the streets, waving banners and torches. They’d regained their home court advantage.
On March 23, 1852, Daniel Webster made his grandiose appearance in Trenton for Goodyear’s long-awaited battle with Day. The case was reported by journalists all along the East coast. The initial problem facing the judges was the limited number of seats in the federal courthouse. There were so many who were unable to find seats that they simply milled about the courthouse, attracting food vendors hoping to cash in on the circus. Even the state legislature adjourned for those who wanted to attend.
Of itself, having Daniel Webster on his team didn’t make a win for Goodyear a forgone conclusion. Goodyear’s legal team still had to deal with Rufus Choate, who after the Colt cases fully appreciated what fabricated evidence would succeed and what wouldn’t.
Famous as Choate was, the truth was that nobody really cared about what Day’s attorney would say in his arguments. They were all waiting to hear from the last of America’s greatest orators. In the days before football, baseball, rock concerts, and movies, the celebrities of the mid-nineteenth century were statesmen, explorers, orators, and inventors. In 1852, the greatest of these was Daniel Webster, and his agreement to try a patent case for Goodyear while still in office was front page news across the country. It was Webster who had eulogized Jefferson and Adams in 1826 with a two-hour oration in Boston. It was Webster who had negotiated the border treaty between Canada and the United States, and who had served as a U.S. Senator from Massachusetts, working beside Henry Clay and John C. Calhoun as a supporter of the Union cause. Webster’s accomplishments also included arguing 223 cases before the Supreme Court, and three times running for the Presidency. And it was Webster who coined the phrase that America’s government was “made for the people, made by the people, and answerable to the people” in perhaps the most eloquent speech ever delivered to Congress in his debate with Senator Robert Y. Hayne on protectionist tariffs. Now, at age 70, he had obtained a mythic status, akin to the revered Founding Fathers. Webster had spent time with Jefferson at his Monticello estate and had dined with James Madison. Now, only five months before he would pass away, Webster would give his last great oration.
The first defeat for Day was his request for a jury trial—the main reason he’d fought to have the trial in Trenton. The case was brought in equity, a legal proceeding based on English law that typically involves a remedy other than money damages. Two judges were assigned to hear the case. These judges had the discretion to decide the case on their own—something we desperately need today. Knowing of Choate’s reputation, the judges likely had no desire for weeks of testimony and jury deliberations, particularly if Choate’s was going to attempt to confuse a jury with bogus testimony about prior inventorship—a tactic he’d used several times before in the Colt trials.
After the first day of arguments it was clear that a new, larger venue was in order, so the trial moved to the Mercer County Courthouse with its 700 seats. For the next two days, the sides argued the merits of their cases. Proving infringement was unnecessary. Everyone knew Day infringed—and he essentially conceded this point. Instead, he tried to prove that Goodyear wasn’t the first to invent the vulcanization process, just as he’d tried to argue six years before. Choate presented testimony of other inventors who claimed to have invented the same thing as early as 1833. Choate was audacious enough to suggest that Day himself had invented the process before Goodyear—a risky argument when many knew about Day’s payoff to steal Goodyear’s secret.
Webster remained silent, carefully taking notes as he crafted his closing arguments. He’d leave the mundane details of dismantling Day’s witnesses to others on Goodyear’s legal team. As part of their case, Goodyear’s attorneys told of how Goodyear had invented vulcanization, how Day had paid a bribe to discover the secret, how Goodyear had previously beaten Day in litigation. They also showed how Day had failed to pay Goodyear on their 1846 settlement agreement where Goodyear allowed Day to produce shirred rubber goods, making Day wealthy why Goodyear fell deeper into debt. Goodyear’s team concluded by showing Day’s inconsistent position in arguing that Goodyear’s patent was invalid when Day had previously taken out newspaper advertisements touting its validity.
By day four, the two seasoned lawyers were ready to present their closing arguments. Choate went first, taking a full five hours to wrap up his case. When he was finished, the local papers, clearly on Day’s side, heralded the argument as the finest ever heard. The Day constituents were hopeful fate was on their side.
But Webster was still to come. “Tomorrow Webster commences,” the Times reported, “for which he is fully prepared. The Court Room continues crowded.” While many suppose that the breathtaking legal fee offered to Webster was why this great man, burdened with so many other responsibilities, decided to take on Goodyear’s cause, Webster’s opening statement tells the real reason. On May 14, 1852, the New York Times published Webster’s argument.
“I believe that the man who sits at this table, Charles Goodyear, is to go down to posterity in the history of the arts in this country, in that great class of inventors, at the head of which stands Robert Fulton, in which class stand the names of Whitney, and of Morse, and in which class will stand ‘non post longo intervallo,’ the humble name of Charles Goodyear.” Webster went on, highlighting Goodyear’s travails and the circumstances that brought about his “great invention”:
Notwithstanding all the difficulties he encountered he went on. If there was reproach, he bore it. If poverty, he suffered under it; but he went on, and these people followed him from step to step, from 1834 to 1839, or until a later period, when his invention was completed, and then they opened their eyes with astonishment. They then saw that what they had been treating with ridicule, was sublime; that what they had made the subject of reproach, was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, with indomitable perseverance and intellect and had brought out a wonder as much to their astonishment, as if another sun had risen in the hemisphere above. He says of his cell in the debtor’s jail, that ‘it is as good a lodging as he may expect this side the grave;’ he hopes his friends will come and see him on the subject of India rubber manufacture; and then he speaks of his family and of his wife. He had but two objects, his family and his discovery. In all his distress, and in all his trials, his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his only solace. … Mr. Goodyear survived all this, and I am sure that he would go through the same suffering ten times again for the same consolation. He carried on his experiments perseveringly, and with success, and obtained a patent in 1844 for his great invention.
To add a personal touch, Webster told of his own experience with rubber, beginning with all of the foolish investors in the early 1830s—before Goodyear’s invention. One of Webster’s friends had sent him a coat and hat made of this new magic material. But when he left it on the porch one cold evening, the coat had turned stiff as a board. In the morning, his neighbors thought this was the new manor of the estate.
The crux of Day’s argument had been that either Day himself or somebody other than Goodyear was the first inventor of vulcanized rubber. Webster’s response to this assertion took on a flavor that was different from the moving oration in which he opened. It was one calculated to smoke out the fraud committed by Day when he stole Goodyear’s idea, then claimed it as his own:
There is not a single question of fact in the case we have said, on which the court can feel the least doubt. We assert that Goodyear is the first man upon whose mind the idea ever flashed, or to whose intelligence the fact ever was disclosed, that by carrying heat to a certain height it would cease to render plastic the India rubber, and begin to harden and metallize it. If there is a man in the world who found out that fact before Goodyear, who is he? Where is he? On what continent does he live? Who has heard of him? What books treat of him? What man among all the men on earth has seen him, known him, or named him? Yet it is certain that this discovery has been made. It is certain that it exists. It is certain that it is now a matter of common knowledge all over the civilized world. It is certain that ten or twelve years ago it was not knowledge. It is certain that this curious result has grown into knowledge by somebody’s discovery and invention. And who is that somebody? If Goodyear did not make this discovery, who did make it? Who did make it? If the other side had endeavoured to prove that some one other than Mr. Goodyear had made this discovery, that would have been fair. But they do not meet Goodyear’s claim by setting up a distinct claim of any body else. They attempt to prove that Goodyear was not the inventor, by little shreds and patches of testimony. Here a little bit of sulphur, and there a little parcel of lead; here a little degree of heat, a little hotter than would warm a man’s hands, and in which a man could live for ten minutes or a quarter of an hour; and yet they never came to the point. There are birds which fly in the air, seldom lighting, but often hovering. Now this is a question not to be hovered over, not to be brooded over, and not to be dealt with as an infinitesimal quantity of small things. It is a case calling for a manly admission and a manly defense. I ask again, if there is any body else than Goodyear who made this invention, who is he?
Webster continued, attacking Day as the only person on the earth who denied that Goodyear was the true inventor. Webster closed by reminding the judges that Day had already lost another patent infringement to Goodyear suit six years before, and what right did he now have to reargue the same case? Then he sat down. It would be the last argument the great Daniel Webster would ever make in a court of law.
Needing to conduct some urgent business, Webster left that evening for Washington, missing the celebration banquet thrown by Goodyear, now confident of his victory. The next month Goodyear returned to England to continue his legal battles overseas. Webster didn’t remain in Washington but left for his Marshfield estate, in desperate need for some relaxation. In May 1851 he and a friend ventured off to a local fishing hole. On the way, their carriage axle broke, tossing Webster headlong onto the ground. The resulting injuries to his arms and head were too much for him, already in failing health. By the end of summer, Webster was bedridden, still waiting for the Goodyear decision.
It came on September 28, 1852. Justice Grier rendered his decision in favor of Goodyear:
And yet when genius and patient perseverance have at length succeeded, in spite of sneers and scoffs, in perfecting some valuable invention or discovery, how seldom is it followed by reward! Envy robs him of the honour, while speculators, swindlers, and pirates, rob him of the profits. Every unsuccessful experimenter who did, or did not, come very near making the discovery, now claims it. Every one who can invent an improvement, or vary its form, claims a right to pirate the original discovery. We need not summon Morse, or Blanchard, or Woodworth, to prove that this is the usual history of every great discovery or invention.
Justice Grier’s decision mainly turned on the outcome of the previous lawsuit where Day had wholeheartedly taken a license and acknowledged the validity of Goodyear’s patent. Day’s spurious evidence of other inventors was more than frowned upon by the judges. They understood Day’s motives. Grier concluded his decision by granting Goodyear a perpetual injunction as well as ordering an accounting of all of Day’s infringing sales of shirred goods.
The decision temporarily revived Webster’s spirits and he believed that he would overcome his injuries. He took to his correspondence, paying off old debts and catching up on business matters. His exuberance was short lived. Barely two weeks after the decision, Webster’s health rapidly deteriorated and on October 24, 1852, he silently passed away. His funeral was held at his estate, where 10,000 paid their respects. Five times that number attended a memorial service in Boston. For Webster, the $15,000 fee turned out to be a godsend as it allowed him to pay off his nagging debts before his death.
The Great India Rubber trial is one from a bygone era—a battle between two legends, Choate against Webster. Both presented their arguments, not laced with technical jargon, but in simple layman’s terms. Was Day making vulcanized rubber? Yes. Did Day invent vulcanization before Goodyear? No, because if he did, why would Day have previously taken a license? And the astronomical legal fee paid to Webster? A mere pittance compared to the millions we charge today. Why? Because one didn’t need dozens of experts to opine on infringement—opinions that are never understood by juries, anyway. And, unlike today, there weren’t thousands of possible defenses, or reasons why the infringer could infringe even if he was doing something different. Yet the outcome was as it should have been.
What if Goodyear’s case were retried today? There is a high probability that Goodyear’s patent would have been struck down, or Day could have found a way not to infringe. That seems unbelievable, but it is true. That’s patent litigation in today’s America.