CHAPTER 19
By early 1906, while Ford and Couzens were scrambling to produce the Model N, Ralzemond Parker was contending with a patent suit that had taken on Dickensian heft. The defendants had completed their testimony, which ran to “2,400 typewritten pages and 140 exhibits.” In February, Horseless Age noted that “although a decision was confidently expected last fall, very little has been heard recently of any progress in the proceedings. This remarkable case promises to develop into a record in patent litigation as regards the length of time during which the patent has been under dispute before the courts.”1 That statement proved prescient: a decision would not be forthcoming for three more years.
The main problem in reaching resolution was that patent suits were conducted as if they had actually been lifted from the pages of Charles Dickens’s Bleak House, where the entirety of a huge estate was eaten up by legal fees, leaving nothing for the heirs. In American patent law in the early 1900s, a judge wasn’t even assigned to the case until after massive amounts of material had been generated by each side, all totally outside the court system or rules of evidence. All that was required in the taking of a deposition, for example, was that it be done in the presence of a neutral third party. Therefore, if either the witness or the lawyer wanted to drag the proceedings on, either by asking irrelevant questions or by giving irrelevant answers, there was no way to speed the interrogation along. Exhibits submitted by each side might or might not be germane to the issue at hand. Many patent lawyers, either because of self-interest or because they thought volume would impress the trial judge, would submit massive briefs supported by staggering quantities of what passed for evidence. Lawyers for the other side, fearful that a streamlined submission would be interpreted as a lack of thorough preparation, would match or outdo their opponents. During this entire process, not surprisingly, each side would continuously announce its desire to move the case along and decry the excesses of its opponent in protracting the process.
Ordinarily, it was more in the plaintiffs’ interest to push for a conclusion, since until a decision was rendered, no licensing fees would be forthcoming, and each month’s delay worked against the patent’s seventeen-year life. While victory in court did entitle the plaintiffs to royalties retroactive to the date the patent was issued, collecting back taxes is always a touch-and-go affair. Better to set up a mechanism to collect the fees as they were taken in. But here, ALAM was contending with what it saw as a growing weakness of both the patent and the infringement suits it had initiated on the basis of the patent. The obvious and quite serious holes in the plaintiffs’ case had been relentlessly exploited by Ford’s lawyers, and there was more than a little doubt about how the trial judge would view the evidence, especially in an industry that had advanced immensely in just the three years since the suit had been originally filed. And, of course, the Ford Motor Company was no longer merely a speck on the automotive landscape.
So, although the United States patent office had seen fit to grant George Selden his patent without requiring that his theoretical machine actually be built and tested, the ALAM lawyers no longer felt they enjoyed the same luxury. While the patent examiners had taken it on faith that the Selden road carriage was both workable and a radical departure from all that had come before, the trial judge, whoever it turned out to be, might actually want a bit of proof.*1 The plaintiffs feared they might need to demonstrate not only that Selden’s plan had been an original concept in 1879, which might not prove to be all that difficult, but also that his design could be turned into a practical automobile—a far taller order.
The chief problem was the same as it had always been—George Selden had never really built anything. The only piece of the puzzle that had even tentatively been brought to life was the unfinished three-cylinder motor, which, except for being briefly employed to power a lathe in 1904, had spent its entire life in Selden’s storeroom.
In 1902, before the first infringement action was taken, the Electric Vehicle Company management had anticipated the problem and assigned an engineer, Henry Cave, to build a Selden machine. “This was quite a contract,” Hiram Percy Maxim noted later, “as the engine shown in Selden’s patent drawings was a fearful and terrible affair.”2 The work was to be done in secret, with an open checkbook—and, significantly, the process would not involve Selden. In fact, it would take Cave, working exclusively on this project, a full four years to come up with something, although just how much it conformed to Selden’s patent specifications would be one more drop of water in an ocean of disputes. “Had he not been the essence of patience, tenacity, and resourcefulness,” Maxim observed, “he certainly would have failed and brought himself to the madhouse.” Still, with all that resourcefulness, Cave’s final product did not seem to be what George Selden had designed but rather “resembled a truck.”3 Actually, “cart” would be more accurate, for it had a body that appeared to be sheets of metal painted a uniform green, and it lacked even the barest amenities.
Although in theory no more sophisticated construction was required to demonstrate workability, as the case dragged on, there was simply no way to determine whether Cave’s creation—later to be labeled Exhibit 157—would be sufficiently persuasive. So the decision was made to produce a Selden road carriage that appeared both to have been built from the patent specifications and to have been done so by Selden himself.
Even for this effort, however, George Selden was not involved. Instead, the project, the full cost of which was borne by ALAM, was assigned to be overseen by his sons, Henry and George junior, both in their early twenties, although neither would have a hand in the actual construction. Like Cave’s creation, the 1877 Buggy, as it would come to be known—or Exhibit 89—was constructed in secret, this time at the Gundlach-Manhattan Optical Company factory in Rochester. The product, which, other than the resurrected motor and crankshaft, contained not one component that was built or even designed by anyone named Selden, at least appeared to be a primitive motorcar. And even the motor had been completely rebuilt in the Gundlach machine shop. The body, fashioned by a maker of fine sulkies and finished in black lacquer with a gold stripe trim, sat over red-orange springs, wheels, and metalwork. The word “Selden” was emblazoned on the sides at the front of the machine, and “1877” was painted prominently farther back, thus predating even the application by two years. “It is an exact copy of the drawings of my patent and I defy any cross-examination to show any substantial variation,” George Selden announced.
Selden’s challenge was sufficiently pugnacious to give pause, but the machine was not. The 1877 Buggy would not have stood up to even the most casual scrutiny. It might have superficially resembled the drawings in the patent application, but both it and Cave’s machine had been built with vast departures from its specifications. The Rochester vehicle, for example, had a modern carburetor and oil pump, timed ignition rather than constant flame, and new cylinder heads and valves. In fact, the only component of the buggy that had not been updated was the cooling system, likely thought unnecessary by machinists working in the Rochester winter. Cave’s machine represented even a greater departure. In addition to all the improvements in the 1877 Buggy, Cave had installed a water jacket to cool the engine, pneumatic tires, and gears to change speeds. This last enhancement allowed his machine to generate 15 horsepower, rather than the 2 horsepower that the Selden buggy achieved.
But even if all the alterations were made public—and they were not—it remained an open question whether or not they would invalidate Selden’s claim. According to 1900’s patent law, validation would depend upon whether or not the patent was granted pioneer status—which, of course, was the crux of the case. If it was, then the “substitutions” would be perfectly acceptable because it was expected that a pioneer concept would be improved on. If not, however, the substitutions would not be allowed because the patent would apply only to the specific design in the application.
While the evidentiary benefits of the Selden vehicles remained problematic, the ALAM lawyers were not interested only in demonstrating their virtues to the judge. By producing the machines, particularly the 1877 Buggy, which had been constructed in the inventor’s hometown and—at least by implication—by the inventor himself, they were hoping to establish with the general public Selden’s status as “the father of the automobile,” the term Selden used to describe himself.
Oddly, the door to achieving that goal was open. That Selden had never before built the road carriage specified in his patent was, considering the notoriety of the case, not at all widely perceived. In several Sunday newspapers, the 1877 Buggy was described specifically as having been built in that year.4 Even Motor World, in May 1906, termed the 1877 Buggy “Selden’s original car,” implying a link with the date conveniently emblazoned on the machine, although the editors should surely have been aware of its true origins.5 As late as May 1907, The New York Times reported, “The original Selden car, it may be interesting to know, is stored in a garage in this city and has been exhibited in many automobile shows.”6 Although Ford’s lawyers continually stressed both machines’ recent construction, ALAM largely succeeded in keeping from the public that for three decades the Selden car had been little more than a phantom.
The Selden forces timed the appearance of the 1877 Buggy and Cave’s machine to coincide with Selden’s arrival in New York to give rebuttal testimony in early May 1906—“rebuttal” meaning he would be cross-examined by Ford’s lawyers based on the deposition he had given on direct examination. Again, this interrogation would be held not in a courtroom but rather at his lawyers’ offices in the presence of an unbiased observer. Ralzemond Parker was certain to feature any Selden misstep prominently when the case went to trial, and the plaintiff’s lawyers were extremely concerned about what their proud and sometimes arrogant client might be prodded into blurting out.
They decided to try to turn weakness to strength, to create a mood of a triumphant entrance into New York City, and so announced with great fanfare that the inventor would personally demonstrate his automobile by driving it through Manhattan. When they got a closer look at Selden’s “automobile,” however, their plans changed. Both man and buggy were kept under wraps for the next two weeks. Selden was shuttled between his hotel and lawyers’ offices, and the buggy was parked in a basement garage on West 56th Street. Since the plaintiffs had introduced the buggy as an exhibit, however, defense lawyers had the right to examine the machine. Finally, Selden’s lawyers announced that both the man and his machine would be exhibited on the Manhattan streets, and they invited a gaggle of reporters to witness the event.
Despite their trepidation, Selden turned out to be an excellent ambassador. Age fifty-nine, thin and impeccably groomed, with military bearing and a trim mustache, he wore a tiepin fashioned after the vehicle that bore his name, with hubcaps and lamps of small diamonds and a body made of sapphires.7 Before he left for New York City, he had granted a long interview to a reporter for the journal Technical World, who described him as having “a strong chin that clenched tightly when he spoke of the jeers he had endured, and quick eyes that gleamed like steel points when he spoke of his ultimate triumphs. He is intensely himself—defiantly himself. Once his heavy jaw sets, all the world cannot change him.”8
The reporter had certainly witnessed a man transformed. After decades of obscurity, George Selden had become quite comfortable with his newfound aristocracy. Just how much of the more than $1 million in licensing fees had found its way to his personal coffers was never completely clear, but it was sufficient for him to engage in conspicuous acts of largesse. In October 1906, he visited Hadlyme, Connecticut, where his ancestors had been interred in a local cemetery that had been abandoned a century earlier. Arriving in a “touring car,” Selden, “the inventor of the gasolene engine for automobiles,” discovered that “an old gray horse” had been buried close to the graves of his forebears. Selden then declared that “he will buy the whole cemetery and own and run it himself.” The purchase was to include surrounding property and the right-of-way to the graveyard. Lionized for his display of family loyalty, Selden, “before he bade his ancestors goodbye, had a picture taken of himself in an automobile and one of his sons driving a yoke of oxen as illustrative of the progress made since his father in an oxcart drove out of town to seek his fortune.”9
On Saturday, May 19, that same ennobled George Selden appeared on 56th Street next to his automobile. Photographers eagerly snapped pictures of him at the wheel of his buggy, the shaft of which rose directly from the engine positioned under the seat, and Selden, with a small proud smile under those steel-point eyes, eagerly posed. Ralzemond Parker was furious. In the first place, the buggy had been pushed to the spot rather than driven—or even started—and in the second, the examination was supposed to be private. “We cannot imagine how [the reporters] found out that we were going to examine the car,” he said, adding that if his opponent had somehow been the source, it would be an affront.10
“I see no good reason for it,” ALAM’s attorney replied when told of the protest, summoning up every bit as much righteousness as had his opponent. “I cannot believe the newspaper men interfered with the examination. We did not mean any affront. Naturally, the various automobile journals have taken a very great interest in this machine, and we thought it was a good opportunity to let them learn something about it.”
What the Ford lawyers learned was that “in the engine shown us, the only parts that date back to 1877 are the castings for three pressure cylinders without heads, and for three air cylinders; also the piston for one cylinder of each type.” Ford’s representatives did all they could to discredit the machine while news photographers were shooting it from every angle, but the novelty overwhelmed their cavils. Selden himself said little, but, as it was no secret that Selden’s two sons had “assisted” in the construction of the buggy, reporters turned their questions to them. Where the elder Selden could be haughty, the younger duo proved charming and deft. When a Ford attorney broke in to ask George junior, “What is there in existence in this vehicle that was in existence in 1879?” he replied, “As I was not in existence in 1879, I cannot truthfully answer that question.” There was “resounding laughter.”11
The only aspect of the buggy’s presence that was germane, of course, was whether or not it would run. Both Selden and his sons, abetted by their attorneys and some friends from Rochester, assured questioners that it had gone as far as 30 miles at speeds approaching 4 miles per hour. They further claimed that the engine had run continuously for twenty-five minutes. “We could have sold some of the machines if we had been in the position to make them,” George Selden insisted. These claims seemed corroborated by Motor World, which reported the “original car…on which he applied for a patent on May 8, 1879…was run across the basement [of the garage] several times.”*2 In fact, it was unclear whether the Selden buggy had run across the basement of the garage even once. The engine seemed to have started, but it developed less than 0.5 horsepower and, even with all the modern enhancements, may have barely moved before the test was ended. According to Parker, “It did not run on its own power 50 feet, but was pushed by five men.”12 From there, further demonstrations were postponed and, after a series of motions filed by the ALAM lawyers, would not take place until the following year.
© Corbis
Henry Ford was persuaded to be photographed with Selden in the 1877 Buggy
Both before and after the brief public exhibition of the 1877 Buggy, Selden was subjected to an intensive cross-examination by Ralzemond Parker, the interchange that the plaintiffs had most feared. Parker was an indefatigable interrogator and had achieved the reputation of being able to crack the veneer of even the most stolid witness and obtain admissions that could be used to great advantage at trial.
In George Selden, however, he met his match. The tale that Selden had told Leroy Scott of Technical World—of the lonely toiler pursuing a dream, of the visionary rejected by his family and jeered at by his neighbors—was brought forth over and over. When Parker asked about specifics of his invention, Selden replied with a tale of the difficulties in working on such a complex machine with limited funds. When Selden meandered, Parker cut him off and repeated the pointed question, only to have Selden return to his recitation of hardship and ultimate triumph. Selden was unswerving in referring to the automobile as “my invention” and all gasoline vehicles that had come subsequently as “exemplifications” of his patent.13 Selden, of course, was every bit as versed in the intricacies of the pioneer concept as was Parker and thus knew precisely what to say to strengthen his case and what not to say to avoid prejudicing it. He “artfully refused to be ensnared by Parker’s demands for details, and frequently rambled on at excessive length into a maze of irrelevancies.”14 Parker’s frustrations grew as weeks of jousting dragged on, but he could not puncture Selden’s composure. And, without a judge to compel the witness to be more responsive, Parker was helpless. Eventually he gave up and allowed Selden to leave the examination, the old man sporting nary a dent.
Although it was not required in order to validate the patent, the fact that Selden had never made any attempt to enter the business that his invention had spawned might also not be viewed favorably by a trial judge. So after he returned home from his battles in New York City, Selden and his boys, at the behest of his lawyers, made to at least appear to enter the automobile business.
“Although information regarding it is difficult to obtain,” Motor World reported in October 1906, “enough is known to say that George B. Selden, world famed because of the now celebrated Selden patent, and his two sons, Henry and George B., are interested in a new automobile plant, which, if present plans do not go awry, shortly will blossom in Despatch, N.Y., which is close by Rochester.” Selden and his sons vociferously denied that the venture was initiated as mere propaganda, but none of them had put up any money, nor was the elder Selden going to have any involvement beyond lending his name to the letterhead.*3 “Indeed, the Despatch factory will be in the nature of an offshoot or extension or sub-company of one of the present members of the Association of Licensed Automobile Manufacturers.”15
In December 1906, to again increase Selden’s visibility as an actual participant in the manufacture of automobiles, “the Buffalo Gasolene Motor Co., Buffalo, N.Y., who, after negotiations with none other than George B. Selden himself, unexpectedly decided to engage in the manufacture of complete cars, has filed a formal application for permission to change its name to the Selden Motor Vehicle Co.” Once again there was a caveat: “Mr. Selden’s name, however, does not appear among those of the directors of the company named in the application.”16
Trying the case in public was a two-sided affair, and Parker engaged in no small amount of absurd posturing of his own. At one point he attempted to foster the notion that ALAM had pulled back from its initial claims as to the breadth of the patent by asserting that the organization “has, for the past year or so, refrained from…advertising that the Selden patent ‘covers all gasoline automobiles which are accepted as commercially practicable.’ ” Parker claimed that Selden himself had taken this view, as “a glance at [his] testimony…shows that this broad claim of the scope of that patent would appear to have been definitely abandoned, and that…it is limited to the special form of the Selden engine shown in the patent, and any equivalents of that form.”17 Parker went on to note that the proof was that ALAM had decided to limit the infringement actions to companies that used Selden’s specific design…of which there were none.
This was nonsense, and ALAM’s lawyers answered in kind. A letter “submitted by Messrs. Betts, Sheffield & Betts, counsel for the owners of the Selden patent” stated, “It is the intention of counsel for the complainant to argue the Selden patent case in the courts, not in the newspapers….Therefore, the only comment we desire to make on Mr. Parker’s statement is that it utterly and absolutely misstates the position of the Association of Licensed Automobile Manufacturers and their counsel and experts in the Selden patent litigation.”
ALAM, in fact, had initiated an entire battery of new lawsuits, approximately twenty in all. More than seventy suits in total had been brought against manufacturers, dealers, and even purchasers of unlicensed automobiles when Parker released his statement. All the suits were dependent on the outcome of the case then being deposed, but the intention was surely to have the means in place to immediately obtain a sweeping array of judgments if Selden prevailed over Ford. Still, for ALAM’s counsel to react with umbrage at “trial by press release,” a tactic the organization had so gleefully employed six months before, demonstrates the banal name-calling to which the case had descended.
Henry Ford had his own take on the proceedings, and the language, at least vaguely, seems to be his own. “That the Association of Licensed Automobile Manufacturers has undertaken to sue some more manufacturers is a fitting climax to some of their other childlike acts during the past few months. Driven to desperation by the unexpected developments and the exposure of their weak structure, nothing else was to be expected but a move of this kind. When nothing substantial can be shown, the officers of the ALAM seem ever ready to start suit against some small dealer. It is a pitiable state of affairs.”18
Ford’s attorneys continued to press what they saw as their most significant advantage and demanded a demonstration of both the 1877 Buggy and Cave’s machine, while ALAM lawyers continued to stall. Finally, in May 1907, the plaintiffs reluctantly agreed to produce both vehicles for tests on the streets of New York. Soon afterward, however, most likely after getting reports on the machines or perhaps checking them out for themselves, ALAM lawyers claimed that New York City law forbade the demonstrations and that the tests would need to be held elsewhere, preferably somewhere less amenable to prying eyes. They adjourned to a racetrack in Guttenberg, New Jersey—a place to which spectators were unlikely to trek, but where “a smooth and level surface offered optimum conditions.”19
The tests were scheduled for Friday, June 14, which turned out to be gray and rainy. Both machines had been housed in a shed from which they could coast down a modest incline to the track. Cave’s machine went first. Despite feverish attempts, the engine would not start until it was connected to the hose from a large air compressor, which was brought to the machine in a large cart pulled by two horses. But even that didn’t work for long. Exhibit 159 coasted down the ramp, traveled for about eight feet, and promptly died. The engine was started with the compressor once more, but once more died. Five men pushed the cart a short distance before the Selden people, claiming inclement weather, decided to wait until the next day to continue the test.
The 1877 Buggy performed even less auspiciously. It repeatedly started, coughed, and died before the gears could be engaged. Parker was quick in pointing out to reporters that the machine would not run, “not even an inch,” but over his objections, the test of that machine was also postponed.
The next day the tests were repeated, and, in keeping with the spirit of the proceedings, the two sides had vastly different versions of what transpired.
From the perspective of the Selden camp, the tests were a rousing success:
The first test was made with the “Hartford” car, which is a duplicate of the original “1877” buggy, with the exception of slightly increased horsepower. The car was made at Hartford from plans and specifications, duplicates of which were filed at the Patent Office and on which Selden received a patent. It made a very remarkable showing, going around a mile track twice and returning to the stable in which it was kept for safe keeping. It attained a speed of over 8 miles per hour for 2 miles. In passing through the paddock, it was necessary to negotiate a grade of over 8½ per cent.20
Parker’s version was different:
There was much smiling among automobile dealers yesterday over the effort of what is known as the Selden group of manufacturers to make capital out of a trial of the Selden car at the Guttenberg track. The car built at Hartford two or three years ago ran two miles in 15 minutes, but the complainant’s management refused to stop and restart it or do anything that a practical road carriage should do. Mr. Parker says he never claimed the newly built cars could not run, but that they were not practical even with their new spark plugs, batteries, and other parts.21
Cave’s machine actually did stop and start many times, but always involuntarily, due to “numerous mishaps to the engine.”22
For the buggy, the Selden forces contributed this snippet:
The small 1877 original motor was then brought out and made a most creditable demonstration. It was run 8 or 9 times through the paddock and back to the stable. The showing made by the cars was remarkable when it is considered that the original motor had been inactive for nearly 30 years. That the car was practical beyond a doubt was proved by the demonstration. It is expected that the test will result in a manner highly agreeable to the owners of the Selden patent.23
Parker once again differed. About the vehicle that he had categorized as “built expressly as an exhibit in the litigation,” he reported with obvious glee that it “took an hour to start, never got out of the yard to the track and took about five minutes to go 1,400 feet and then stopped. Mr. Selden refused to restart it, to back it up, or to turn it around. The counsel for Ford was much amused at what he termed a desperate but lame attempt to make capital out of the demonstration.” An independent observer added that there was “labored cranking of the engine between brief journeys,” and that “the oil in the crankcase boiled furiously.”24
Two weeks later the 1877 Buggy was back in the garage on the West Side of Manhattan, where it gave a “fearful performance.” With all three Seldens by then back in Rochester, mechanics worked on the car nonstop for two months, watched over by Pinkerton Agency detectives, some of whom were employed by each side, at which time it was brought above ground for its final test, on the streets of New York. (There seemed to be no legal impediment to its operation there after all.)
The buggy, “despite added improvements” and under remarkable security, gave an unremarkable performance. On September 6,
at 10:02, a wire was connected from the batteries on the car to the coil, and after five minutes of cranking, at twenty-five turns every ten seconds, the motor started to run, with but few misses. The wires from the batteries were disconnected at 10:08, and the car was run from the room to the large storage room in the garage under its own power….It was then pushed on an elevator and taken to Forty-ninth Street. On electric ignition it started on the first turn of the crank.25
Without the electric ignition, which had not been part of Selden’s patent, the engine could not start. Even with electric ignition, the buggy could do no better than putter along for short distances before overheating, dying out, or suffering some other mishap. Repeat trials on September 12 and 16 were no more successful. “How long this litigation will last it is, of course, impossible to say, but what it is proving, except the general incapacity of Exhibit 89 to perform the tests witnesses said it made in Rochester and the lack of desire on the part of the complainants to end the suits, is more than uncertain.”26 The buggy had proved so difficult to start that Horseless Age could not resist attaching the moniker “Cranky Louis” to the buggy’s operator, Louis Gibson, for “his frequent performances in that line.”*4
Whether or not the lackluster performance of both putative Selden machines would invalidate Selden’s patent would be the decision of the trial judge, but as 1906 drew to a close, ALAM could not have looked back on it as a particularly good year. They were to find, however, that 1907 would be worse.