Gray's variable resistance method over Bell's signature, and over the jurat, and then restore it to the files, thus materially altered, as if it were the original; and all this between February 14th and February 19th. Although much stress was laid in argument on the fact that what purported to be a certified copy of the specification of Bell, as found in the file-wrapper and contents printed in the Dowd case, differed materially from the patent, the cause of these differences has been explained in the most satisfactory manner; and we entertain no doubt whatever that the specification as now found in the patent is precisely the same as that on which the order to issue was made. If any alterations were made, it was all done before February 19th; and the fair copy which is now found on the files of the office is precisely as it was when the order for the patent was granted. Not a shadow of suspicion can rest on any one growing out of the misprint of the specification in the Dowd case. All that remains, therefore, on which to rest this serious charge is that in a paper handed by Bell to George Brown, of Toronto, describing his invention, and which was intended to be used in England to secure a British patent, what is now claimed to be an interpolation in the American application is not to be found. It is but right to say that, during the whole course of the protracted litigation upon the Bell patent, no argument was ever presented based on this discrepancy until the brief of Mr. Hill was filed in this court on the 18th of January, 1887, six days before the argument in these appeals was begun. So far as we are advised, nothing had ever before occurred in the cases that seemed to make it necessary to prove when the variable resistance method or the fourth claim was put into the American application, or why it was left out of the paper handed to Brown. It seems always to have been assumed, until the cases got here, that, because it was in the American patent, it was rightfully there. Certainly, there is nothing in the pleadings in any of the cases to direct attention to the materiality of this fact. A comparison of the paper handed Brown with the American application shows that they differ in more than 30 different places, besides those which relate to the variable resistance method and the fourth claim. The differences are generally in forms of expression; thus indicating that one was written after the other, and evidently for the purpose of securing greater accuracy. The paper handed Brown was clearly a rough draft, and not a fair copy, for the record shows that it bore on its face the evidence of many erasures and interlineations. Bell says in his testimony that he began writing his specification in September or October, 1875, and wrote and rewrote it a number of times, finally adopting that mode of expression which seemed to him the best to explain his invention, and the relation which one portion bore to another. He visited Brown in Canada in September, and again in December, 1875. The arrangement was made between them on the 29th of December, at this last interview, by which Brown was to interest himself in getting out British patents. Other inventions besides the telephone were included in the contract entered into for that purpose. Bell returned to Boston on the 1st of January, and immediately set himself to work to complete his specification. He had it done so that it was taken to Washington by Mr. Hubbard about the 10th of that month, and delivered to Pollok & Bailey, the attorneys. It was then examined by the attorneys, found correct, and a fair copy made, and returned on the 18th to Bell in Boston for his signature and oath. It was signed and sworn to in Suffolk county, Mass., January 20th, and immediately returned to the attorneys. Afterwards Pollok met Bell in New York, and it was again gone over with care by the two together. No change whatever was made in it at that time, and Pollok took it back with him to Washington. On the 25th of January, 1876, Bell met Brown, who was then on the way to England, in New York. It is now assumed that the paper which Brown took to England was handed to him then; and, because the variable resistance method and the fourth claim were not in that, it is argued that they could not have been in the Amer ican specification at that time. But no one has said when the paper was actually handed to Brown. Bell says he cannot tell, but that it must have been after he made his contract with Brown on the 29th of December. As the American specification was signed and sworn to five days before the interview with Brown on the 25th of January, and the paper of Brown differs from it in so many particulars besides that now in question, it would seem to be clear that the paper was a copy of some former draft which Bell had made,possibly, one taken to Canada in December,—and not of that which was perfected afterwards. As the specification which had been prepared and sworn to was a fair copy, without erasures or interlineations, the fact that the paper handed Brown was not a fair copy would imply that it was not intended to be an exact transcript of the other. At any rate, the bare fact that the difference exists, under such circumstances, is not sufficient to brand Bell and his attorneys, and the officers of the patent-office, with that infamy which the charges made against them imply. We therefore have no hesitation in rejecting the argument. The variable resistance method is introduced only as showing another mode of creating electrical undulations. That Bell had had his mind upon the effect of such a method is conclusively established by a letter which he addressed to Mr. Hubbard on the 4th of May, 1875, and which is found in the Dowd record, introduced into the Overland case by stipulation. Its insertion in his final draft of his specification is another proof of the care with which his work had been done. In the case of the Clay Commercial Company objection was made to the sufficiency of the proof of the incorporation of the American Bell Telephone Company, and of its title to the Bell patents. Upon the first point the proof was (1) a special act of the general court of Massachusetts, entitled "An act to incorporate the American Bell Telephone Company," which authorized certain persons therein named, and their associates, to organize themselves under the provisions of chapter 224 of the Acts of 1870,2 and the acts in amendment thereof, for telephone purposes; and (2) a certificate of the secretary of the commonwealth, in the form required by section 11, of chapter 224, that certain persons, among whom were the most of those mentioned in the special act, were legally organized and established as an existing corporation, under the name of the American Bell Telephone Company. This section made such a certificate "conclusive evidence of the existence of a corporation" organized under that chapter. The authority granted by the special act to the persons named to organize as a corporation in this way gave them the authority to select a corporate name, and also made the statutory certificate conclusive evidence of their corporate existence. The objections to the proof of title are not, in our opinion, well taken. We do not deem it necessary to add to the length of this opinion by referring particularly to the testimony on that point. This disposes of all the cases so far as the patent of March 7, 1876, is concerned. It remains only to consider the patent of January 30, 1877, about which but little has been said either in the oral or printed arguments. Apparently, it received but little attention by counsel or the court in either of the cases below. In the Dolbear case, it was, by consent, excluded from the decree, and of course is not presented by that record in this court. In all the other cases the patent was sustained, and the Clay Commercial Company was adjudged to have infringed the third, fifth, sixth, seventh, and eighth claims; the Molecular Company, the sixth, seventh, and eighth, but not the fifth; the People's Company, the fifth, sixth, and eighth; and the Overland Company, the third, fifth, sixth, seventh, and eighth. From the decree in favor of the Molecular Company as to the fifth claim the Bell Company has appealed. 1Approved March 19, 1880, (Laws & Resolves Mass. 1880-81, c. 117, p. 74.) 2 Laws & Resolves Mass. 1870-71, p. 154. v.8s.c.-51 In the case of the Clay Commercial Company, it was alleged in the answer that the substantial and material parts of the things described and claimed were described and claimed in a prior British patent taken out by or for Bell, dated December 9, 1876, and that, inasmuch as the American patent does not bear the same date with the foreign patent, and is not limited to expire therewith, it is void. This patent has not been pressed in the argument here, and in our opinion it has been settled by the decision of this court in O'Reilly v. Morse, 15 How. 62, 112, and impliedly by that in Siemens v. Sellers, 123 U. S. 276, 8 Sup. Ct. Rep. 117, (at the present term,) that the effect of section 4887, Rev. St. is not to render invalid an American patent which does not bear the same date as a foreign patent for the same invention, but only to limit its term. The patent itself is for the mechanical structure of an electric telephone, to be used to produce the electrical action on which the first patent rests. The third claim is for the use in such instruments of a diaphragm, made of a plate of iron or steel, or other material capable of inductive action; the fifth, of a permanent magnet constructed as described, with a coil upon the end or ends nearest the plate; the sixth, of a sounding box, as described; the seventh, of a speaking or hearing tube, as described, for conveying the sounds; and the eighth, of a permanent magnet and plate combined. The claim is not for these several things in and of themselves, but for an electric telephone, in the construction of which these things, or any of them, are used; hence the fifth claim is not anticipated by the Schellen magnet, as was decided in the Molecular case below. The patent is not for the magnet, but for the telephone of which it forms but part. To that extent the decree in that case was erroneous. It follows that the decree in each of the cases, so far as it is in favor of the Bell Company, and those claiming under it, must be affirmed; and that the decree in the Molecular case, so far as it is against that company on the fifth claim of the patent of January 30, 1877,1 must be reversed, and a decree directed to that extent in its favor. It is consequently so ordered. GRAY, J., was not present at the argument, and took no part in the decision of these cases. LAMAR, J., not being a member of the court when these cases were argued, took no part in their decision. BRADLEY, J., (dissenting.) Mr. Justice FIELD, Mr. Justice HARLAN, and myself are not able to concur with the other members of the court, sitting in these cases, in the result which has been reached by them. Without expressing an opinion on other issues, the point on which we dissent relates to the defense made on the alleged invention of Daniel Drawbaugh, and applies to all the cases in which that invention is set up. up. We think that Drawbaugh anticipated the invention of Mr. Bell, who, at most, is not claimed to have invented the speaking telephone prior to June 10, 1875. We think that the evidence on this point is so overwhelming, with regard both to the number and character of the witnesses, that it cannot be overcome. As this is a question of fact, depending upon the weight of the evidence, and involves no question of law, it does not require an extended discussion on the part of those who dissent from the opinion of the majority; which is very ably drawn, and presents the case with great clearness and force. On the point mentioned, however, we cannot concur in the views expressed. The essence of the invention claimed by Mr. Bell is the transmission of articulate speech to a distance, by means of an electrical current subjected to undulations produced by the air vibrations of the voice. There are two modes (as yet discovered) by which these undulations may be thus produced. In one, they are produced by interposing in the circuit a substance whose elec 132 Fed. Rep. 214, 23 Blatchf. 262. trical conductivity may be varied by the concussions or vibrations of the air produced by the voice. This is called the "variable resistance process," because the electrical current is subjected to the variable resistance (or conductivity) of the substance thus interposed. By the other mode, the undulations are produced by the inductive effect of an armature, (or small, flat piece of iron,) attached to the membrane spoken against, and placed near to the poles of an electro-magnet situated in the circuit. In both cases the undulations impart the vibrations which caused them to another diaphragm at a distance (called the receiver) by means of an electro-magnet in the circuit, placed near to an armature affixed to such diaphragm. These vibrations, thus reproduced, are detected by the ear, and the spoken words are heard. We are satisfied, from a very great preponderance of evidence, that Drawbaugh produced, and exhibited in his shop, as early as 1869, an electrical instrument by which he transmitted speech, so as to be distinctly heard and understood, by means of a wire, and the employment of variable resistance to the electrical current. This variable resistance was produced by causing the electrical current to pass through pulverized charcoal, carbon, and other substances, acted upon by the vibrations of the voice in speaking. This was the whole invention, so far as the principle of variable resistance is concerned. We are also satisfied that as early as 1871 he reproduced articulate speech, at a distance, by means of a current of electricity, subjected by electrical induction to undulations corresponding to the vibrations of the voice in speaking,-a process substantially the same as that which is claimed in Mr. Bell's patent. In regard to the instrument in which the principle of variable resistance was used, more than 70 witnesses were examined, who either testified to hav ing seen it and heard it, or established such facts and circumstances in relation to it as to put its existence and date beyond a question. With regard to the instrument in which electrical induction was employed to produce the requisite undulations, some 40 or 50 witnesses were produced, many of whom saw it, and heard speech through it; and others either saw it, or heard it talked about in such a manner as to fix the time when it was in existence. On the questions of time and result, there is such a cloud of witnesses in both cases, that it seems almost impossible not to give credence to them. The evidence of some of them may have been shaken with regard to the time they had in mind; but that of the great majority was not shaken at all, but corroborated by circumstances which rendered the proof irrefragable. Many of them, it is true, were plain country people; but they heard the words through the instrument, and that is a matter about which they could not be mistaken. It did not require science nor learning to understand that. But the witnesses were not confined to this class. A number of them were people of position in society, official, professional, and literary; all, however, like the inventor, regarding the matter more as one of curiosity than of public importance. As it would serve no useful purpose to repeat the testimony of these witnesses, we shall refrain from doing so. We will only add that nearly all the original instruments used by Drawbaugh were produced on the trial, and identified by the witnesses. Some of them were broken, and in a dilapidated condition, but sufficiently perfect to be accurately reproduced. Their very form and principle of construction showed that they were intended for speaking telephones, and nothing else. Drawbaugh certainly had the principle, and accomplished the result. Perhaps without the aid of Mr. Bell, the speaking telephone might not have been brought into public use to this day; but that Drawbaugh produced it there can hardly be a reasonable doubt. We do not question Mr. Bell's merits. He appreciated the importance of the invention, and brought it before the public in such a manner as to attract to it the attention of the scientific world. His professional experience and attainments enabled him to see, at a glance, that it was one of the great discoveries of the century. Drawbaugh was a different sort of man. He did not see it in this halo of light. Had he done so, he would have taken measures to interest other persons with him in it, and to have brought it out to public admiration and use. He was only a plain mechanic; somewhat better instructed than most ordinary mechanics,—a man of more reading; of better intelligence. But he looked upon what he had made more as a curiosity than as a matter of financial, scientific, or public importance. This explains why he did not take more pains to bring it forward to public notice. Another cause of his delay in bringing his invention to public notice was that he was ever indulging the hope of producing speech, at the receiving end of the line, loud and distinct enough to be heard across a room, like the voice of a person speaking in an ordinary tone. It is perfectly natural for the world to take the part of the man who has already achieved eminence. No patriotic Briton could believe that anybody but Wats could produce an improvement in the steam-engine. This principle of human nature may well explain the relative feeling towards Bell and Drawbaugh in reference to the invention of the telephone. It is regarded as incredible that so great a discovery should have been made by the plain mechanic, and not by the eminent scientist and inventor. Yet the proof amounts to demonstration, from the testimony of Mr. Bell himself, and his assistant, Watson, that he never transmitted an intelligible word through an electrical instrument, nor produced any such instrument that would transmit an intelligible word, until after his patent had been issued; while, for years before, Drawbaugh had talked through his so that words and sentences had again and again been distinctly heard. We do not wish to say a word depreciatory of Mr. Bell. He was original, if not first. He preconceived the principle on which the result must be obtained, by that forecast which is acquired from scientific knowledge, as Leverrier did the place of the unknown planet; but in this, as in the actual production of the thing, he was, according to the great preponderance of the evidence, anticipated by a man of far humbler pretensions. A common astronomer, by carefully sweeping the sky, might have been first in discovering the planet Neptune; while no one but a Leverrier, or an Adams, could have ascertained its existence and position by calculation. So it was with Bell and Drawbaugh. The latter invented the telephone without appreciating the importance and completeness of his invention. Bell subsequently projected it on the basis of scientific inference, and took out a patent for it. But, as our laws do not award a patent to one who was not the first to make an invention, we think that Bell's patent is void by the anticipation of Drawbaugh. CUNNINGHAM v. NORTON et al. 1 1. ASSIGNMENT FOR BENEFIT OF CREDITORS-PREFERENCES AND RESERVATION-RIGHTS OF NON-CONSENTING CREDITORS. The fact that an assignment under the Texas act of March 24, 1879, § 3, for the benefit of such creditors only as would consent to accept their proportionate shares of the estate in settlement in full of their respective claims, provides that the surplus, if any, remaining after paying such consenting creditors in full, should be turned over to the debtor, does not render the assignment void, as tending to hinder and delay non-consenting creditors; the rights of such creditors in the surplus being preserved by the remedy of garnishment provided by section 8. 2. SAME. Nor is such an assignment rendered invalid because of a provision therein that the surplus, if any, shall be turned over to the debtor, instead of being paid into the district court, as provided in section 16. 3. SAME-DEED-DESCRIPTION OF PROPERTY CONVEYED. An assignment for the benefit of consenting creditors only, under the Texas act of March 24, 1879, § 3, conveyed "all his [the debtor's] lands, tenements, heredita 1Reversing 15 Fed. Rep. 853. |