THE PATENT OFFICE CONFRONTS THE ETHER
For more than fifty years, Ellsworth’s patent system had been meeting the needs of the nation’s inventors, issuing more than 200,000 patents. With the exception of the eradicated model requirement, the process was mostly intact. And the best news was that patents were still issuing in a matter of months.
Then technology began to change, and the patent office had to come to grips with how it would handle scientific challenges, especially with no more patent models to help explain obscure ideas. Nowhere was that more evident than with the ether.
The concept of the ether had been around since Aristotle. It was the hypothetical substance through which electromagnetic waves, such as light, traveled. How could somebody patent a device that claimed to transmit signals through this mysterious medium?
The issue came up with Marconi’s patent application for the world’s first wireless device, the precursor to the radio and today’s cell phones. Although today we think nothing of picking up a cell phone and calling a friend half way around the world, at the turn of the nineteenth century, if you wanted to communicate long distance, you had to do so over a wire, using Morse’s dashes and dots. European and American cities were cluttered with miles and miles of unsightly telegraph wires, begging for someone to invent a more efficient way to communicate. Marconi was the person who sought to change that, making it possible to send a signal using Morse code, not over a wire, but through the “ether.”
What Marconi claimed as his idea wasn’t a way to transmit radio waves—that had already been demonstrated by Heinrich Hertz and James Maxwell. The real question was how to collect them. Marconi’s patent claim was to a receiver that could take the radio signals and convert them to electrical pulses. He did this by putting metal shavings inside a tube and when the radio waves entered the tube, they oscillated the metal shavings, closing an electrical circuit. This Marconi did by developing a “coherer,” a tube filled with iron shavings that conducted the radio waves. Marconi used the invention as a “wireless” substitute for the telegraph. For the first time, written messages could be transmitted through the air, eliminating the need to lay cables. His famous test case was the sending of the letter “s” from Poldhu, Cornwall, to St. John’s, Newfoundland, in 1901, a distance of 2,000 miles.
One of the most practical uses of Marconi’s wireless invention was on ships, previously out of communication with the shore as soon as they left it, with the British navy being the first to jump at the opportunity. These wireless devices became famous when used to capture the famous murderer, Hawley H. Crippen, and his mistress after the captain received a radio message apprising him of Crippen’s crime. Then in 1912 his radio was used in the rescue efforts for the Titanic.
Marconi filed his patent application on December 7, 1896. His patent application consisted of 27 pages of description—all in cursive writing—with eight figures showing both mechanical drawings and electrical schematics of his receiver. By January 12, 1897—a mere month later—the examiner had reviewed Marconi’s application and provided Marconi with his comments in a communication called an “office action.” The comments mailed from the examiner reveal that the application was thoroughly examined. For example, the examiner agreed that the idea was new, but had several concerns about how Marconi had described his idea and, more importantly, about how it worked. The examiner’s concerns were based on the prevailing belief that sending long distance signals through the ether was impossible.
Before granting the patent, the examiner wanted some clarification about how Marconi’s radio worked. The examiner stated that, “On page 14 it should be explained how the receiver and transmitter can co-operate unless the two instruments are in view of each other.” From this, it appears that the examiner believed that wireless communication was impossible unless the transmitter and the receiver were within eye sight of each other. If otherwise, the examiner wanted an explanation. The concept of transmitting through the “ether,” although widely discussed, was thought to be an impossibility.
By May of that same year, Marconi filed his response—bold and straight to the point. “In reference to the Examiner’s statement that the operation of the receiver and transmitter as contained on page 14 of the specification should be explained, it is submitted that this would involve a knowledge of the form and method of transmission of electric waves and appears to be beyond present scientific knowledge. The fact is known that in such a combination as disclosed by the applicant, the receiver is affected by the transmitter and signals can be sent from the one station to the other. We submit that it is immaterial, whether the path of the waves is in a straight line from transmitter to receiver through intervening objects, or whether the path is otherwise.”
If a model was still required, the examiner could have asked Marconi to prove that the receiver really did receive a signal. Instead, the examiner took Marconi at his word. The examiner’s actions are similar to what happens in today’s patent office where a mere statement by the inventor’s attorney is usually enough to have a patent granted. In Marconi’s case, he really did have a functioning device and rightly deserved the patent. But that is not always the case, especially with many of today’s patent applicants.
With Marconi’s additional changes to the description to correct some clerical errors, the examiner allowed the case. In July 1897, a mere seven months after filing, Marconi had his patent in hand. Life could have been much easier for both Marconi and the examiner if Marconi had submitted a model, or some kind of demonstration proving how his idea worked. If Marconi had submitted a patent model, the examiner would probably have allowed the application without making any rejections. He would not have had to question Marconi about how it worked, thereby lopping months off the time his application sat in the patent office.
The seven months that it took to examine and approve Marconi’s application, even when claiming a significant, ground-breaking invention, was not unusual. Although examiners wanted proof that an idea actually worked, they were still able to move the applications through the patent office with a rapidity that today is impossible.
Two decades before Marconi, Thomas Edison’s patent application on the phonograph followed a similar path. It too relied on transmitting signals through air. But unlike Marconi’s radio, it was the human ear that did the receiving.
Edison filed for patent protection on his “Phonograph or Speaking Machine” on Christmas Eve, 1877. The basic idea behind Edison’s phonograph was to allow a person to speak into a mouthpiece and then record the sound waves on a cylindrical drum covered with tin foil. Although others had recorded sound decades earlier, like Leon Scott de Martinville’s phonauthograph of 1855, Edison claimed to be the first person to play back the recorded sound. Edison stumbled onto the idea while attempting to record readable traces of a Morse code signal onto a disk. Edison proved his technology worked by singing “Mary had a little lamb” into the mouthpiece.
As with Marconi, the patent examiner took up Edison’s case a mere month after filing, rendering his initial opinion on patentability. In the office action, the examiner was concerned that Edison had failed to sufficiently describe parts of his invention, stating that “the means for reproducing the recorded sound vibrations referred to on page 21 should be fully described and shown in the drawing in order that no question may arise in the treatment of any future application as to the sufficiency of such bare description unaccompanied with drawing.” Another issue was that some of the material in the application overlapped with some of Edison’s other applications, and the examiner asked for that description be stricken. The final issue was that, “No model has been filed showing the features covered by claims 5 and 6.” The good news for Edison was the examiner’s conclusion: “Upon suitable amendment the application will be allowed.”
Even though Edison had established himself as one of America’s greatest inventors, the examiner insisted that Edison clarify how he made his invention work. But as soon as that was done, the examiner was willing to allow the patent. It was that simple.
Edison readily complied with the bulk of the examiner’s requests. A month later, on February 4, 1878, Edison’s New York attorney, Lemuel Serrell, filed a reply with the patent office where he clarified the materials he used for recording sound, stating that: “The material employed for this purpose may be soft paper saturated or coated with paraffine or similar material with a sheet of metal-foil on the surface thereof to receive the impression from the indenting joint.” He also erased any description of concepts covered in other Edison applications and canceled several claims because no model was submitted in connection with those claims. But Serrell didn’t give in on every point. Serrell disagreed with the examiner about the insufficient description of how the device recorded the vibrations. “It is believed that the reference in the official letter of 26th Jan., to the insufficiency of the description in paragraph 21, is an error as the devices referred to are shown in Figs. 3 and 4.” This argument was persuasive and by February 19, 1878, a little over a year after filing his application, Edison had patent number 200,521 in hand.
Patents in less than a year—all without computers, electronic filings, or the Internet. And, all while struggling with significant advances in technology. Back then, the patent office was willing to grant patents on leading edge technologies, even if the advances were small. Today, all this is impossible. Besides the lack of efficiency in today’s patent office, the patent system has layered on thousands of additional requirements over the years, making the patenting process onerous at best. In large part, this has not been due to overly complex technologies, but from a fear that patents are too powerful. The result is that it now takes three to five years to get a patent application through the patent office, even on the most simple of technologies. Even then, the claims are usually narrowed so far that the resulting patent is often worthless.
Issuing patents on ideas that delved into the ether was one thing, but what would happen if someone patented a flying machine? The patent office had a strict rule about flying machines—they were not patentable. Would the patent office be willing to admit that it was possible to fly? Even more important, if someone really could fly and had the only patent on how to do it … That just wouldn’t be right. That would mean one patent could control what flew in America’s skies for more than a decade. But that’s exactly what happened.