THE STRUGGLE TO PROTECT PATENTS
In 1848 Cyrus McCormick's original patent expired. He applied to have it
extended, and at once there began one of the most extraordinary legal
wars ever known in the history of the Patent Office. It continued with
very little cessation until 1865. It enlisted on one side or the other
the ablest lawyers of that period--such giants of the bar as Lincoln,
Stanton, Seward, Douglas, Harding, Watson, Dickerson, and Reverdy
Johnson. The tide of battle rolled from court to court until the final
clash came in the chamber of the Supreme Court and the halls of
Congress. It was perhaps the most Titanic effort that any American
inventor has ever made to protect his rights and to carry out the
purpose of the Patent Law.
McCormick had strong reasons for believing that his patent should be
extended. He was asking for no more than the Patent Office, on other
occasions, had granted to other inventors. A patent was supposed to
protect an inventor for fourteen years, and he had lost half of this
time in making a better machine, and in finding out the best way to
carry on the business. He had received from all sources nearly $24,000,
and most of it had been swallowed up in expenses. He was still a poor
man in 1848. He was no more than on the threshold of prosperity. And his
peculiar difficulty, which gave him a special claim upon the Patent
Commissioners, was the shortness of the harvest season. He had only
three or four weeks in each year in which he could make experiments.
For eight years McCormick's claim was tossed back and forth like a
tennis ball between the Patent Office and Congress. This delay threw the
door wide open to competition. A score of manufacturers built factories
and began to make McCormick Reapers, with trifling variations and under
other names. If McCormick had won his case, they would have had to pay
him a royalty of $25 on each machine. Consequently, they combined
against him. They hired lawyers and lobbyists, secured petitions from
farmers, and raised a hue and cry that one man was "trying to impose a
tax of $500,000 a year upon the starving millions of the world."
One firm of lawyers in Cincinnati sent a letter to these manufacturers
in 1850, saying that, "McCormick can be beaten in the Patent Office, and
must be beaten now or never. If funds are furnished us, we shall surely
beat him; but if they are not furnished us, he will as certainly beat
us. Please, therefore, take hold and help us to beat the _common enemy_.
The subscriptions have ranged from $100 to $1,000.... Send in also to
Patent Office hundreds of remonstrances like this: We oppose the
extension of C. H. McCormick's patent. He has made money enough off of
the farmer."
Towards the end of this famous case, the anti-McCormick lobby at the
Capitol became so rabid that Senator Brown, of Mississippi, made an
indignant protest on the floor of the Senate. He said: "Why, Mr.
President, if it were not for the people out of doors, people without
inventive genius, people without the genius to invent a mouse-trap or a
fly-killer, who are pirating on the great invention of McCormick, there
would never have been an hour's delay in granting all that he asks. I
know, and I state here, in the face of the American Senate and the
world, that these men have beset me at every corner of the street with
their papers and their affidavits--men who have no claim to the ear of
the country, men who have rendered it no service, but who have invested
their paltry dollars in the production of a machine which sprang from
the mind of another man; and who now, for their own gain, employ lawyers
to draw cunning affidavits, to devise cunning schemes, and to put on
foot all sorts of machinery to defeat McCormick."
What worried McCormick most was not this consolidation of competitors,
but the fact that a few farmers had signed petitions of protest against
his claim. This was "the most unkindest cut of all." But he made no
attack upon them. Manufacturers he would fight, and inventors and
lawyers and judges--any one and every one, if need be, except farmers.
"How can the farmers be against me?" he asked in amazement. "They save
the price of the Reaper in a single harvest."
McCormick lost his suit, as he did a second time in 1859, and a third
time in 1861. Not one of his patents was at any time renewed. Up to 1858
he had received $40,000 in royalties, but it had cost him $90,000 in
litigation. From first to last he did not get one dollar of net profit
from the protection of the Patent Office.
Many other inventors were fairly treated by Congress. Fulton, for
example, was presented with a bonus of $76,300. Willmoth, who improved
the turret of a battleship, received $50,000. Professor Page, for making
an electric engine, was given $20,000. Morse was awarded $38,000. The
patents of Goodyear, Kelly, Howe, Morse, Hyatt, Woodworth, and Blanchard
were extended. The protection of inventors had been a national
policy--an American tradition. In the phrasing of Daniel Webster: "The
right of an inventor to his invention is a natural right, which existed
before the Constitution was written and which is above the
Constitution."
The benefit of the Reaper to the nation, and the fact that McCormick was
its inventor, were admitted freely enough. Senator Johnson, of Maryland,
estimated in 1858 that the Reaper was then worth to the United States
$55,000,000 a year. D. P. Holloway, the Commissioner of Patents, sang an
anthem of eloquent praise to McCormick in 1861. "He is an inventor whose
fame, while he is yet living, has spread through the world," he said.
"His genius has done honor to his own country, and has been the
admiration of foreign nations. He will live in the grateful recollection
of mankind as long as the reaping-machine is employed in gathering the
harvest." Then, in an abrupt postscript to so fine a eulogy, this
extraordinary Commissioner adds: "But the Reaper is of too great value
to the public to be controlled by any individual, and the extension of
his patent is refused."
[Illustration: PAINTING BY C. SCHUSSELE, PHILADELPHIA, 1861
ENGRAVED ON STEEL BY JOHN SARTAIN, PHILADELPHIA, 1862
MEN OF PROGRESS
STANDING, LEFT TO RIGHT: 1, Dr. W. T. G. Morton, first man to administer
ether to a patient; 2, J. Bogardus, invented ring spinner (for cotton
spinning), an engraving machine, and dry gas meter; 3, S. Colt,
revolver; 4, Cyrus Hall McCormick, reaper; 5, Joseph Saxton, locomotive
differential pulley and deep sea thermometer; 6, Peter Cooper, founder
of Cooper Union and inventor machine for mortising hubs for carriage
wheels; 7, Prof. J. Henry, inventor of communication by electricity; 8,
E. B. Bigelow, power loom for spinning jenny.
SITTING, LEFT TO RIGHT: 1, C. Goodyear, vulcanizer of rubber; 2, J. L.
Mott, iron manufacturer and inventor; 3. Dr. E. Nott, base burner for
stoves: 4, F. E. Sickles, inventor of cut-off of steam in engine; 5, S.
F. B. Morse, telegraph; 6, H. Burden, cultivator, and machine for making
horseshoes; 7, R. M. Hoe, printing press; 8, I. Jennings; 9, T.
Blanchard, machine for cutting and heading tacks, and lathe for turning
irregular forms: 10, E. Howe, sewing machine.]
The truth seems to be that McCormick was too strong, too aggressive, to
receive fair play at the hands of any legislative body. The note of
sympathy could never be struck in his favor. He personally directed his
own cases. He dominated his own lawyers. And he fought always in an
old-fashioned, straight-from-the-shoulder way that put him at a great
disadvantage in a legal conflict. Also, he was supposed to be much
richer than in reality he was. He had made money by the rise in Chicago
real estate. By 1866 he had become a millionaire. And his entire fortune
was assumed by opposing lawyers to be the product of the Reaper
business.
It is to be said, to the lasting honor of South Carolina, that she gave
a grant of money to Whitney, out of the public treasury, as a token of
gratitude for the invention of the cotton gin. But no wheat State ever
gave, or proposed to give, any grant or vote of thanks to Cyrus
McCormick for the invention of the Reaper. The business that he
established was never at any time favored by a tariff, or franchise, or
patent extension, or tax exemption, or land grant, or monopoly.
Single-handed he built it up, and single-handed he held it against all
comers. If, as Emerson has said, an institution is no more than "the
lengthened shadow of one man," we may fairly say that the immense
McCormick Company of to-day is no more than the lengthened shadow of
this farm-bred Virginian.
By 1855 McCormick realized that the Federal Government was not the
impartial tribunal that he had believed it to be. He saw that he could
not depend upon it for protection, so he made a characteristic
decision--he resolved to protect himself. He, too, would hire a battery
of lawyers and charge down upon these manufacturers who were
unrighteously making his Reaper and depriving him of his patents. He
engaged three of the master lawyers of the American bar, William H.
Seward, E. N. Dickerson, and Senator Reverdy Johnson, and brought suit
against Manny and Emerson, of Rockford, Illinois, for making McCormick
Reapers without a license.
Then came a three-year struggle that shook the country and did much to
shape the history of the American people. Manny and Emerson, who were
shrewd and forceful men, hired twice as many lawyers as McCormick and
prepared to defend themselves. They selected as the members of this
legal bodyguard, Abraham Lincoln, Stephen A. Douglas, Edwin M. Stanton,
Peter H. Watson, George Harding, and Congressman H. Winter Davis.
It was a battle of giants. Greek met Greek with weapons of eloquence.
But Stanton out-classed his great co-debaters in a speech of
unanswerable power which unfortunately was not reported. The speech so
vividly impressed McCormick that in his next lawsuit he at once engaged
Stanton. It awoke the brain of Lincoln, as he afterwards admitted; and
drove him back to a more comprehensive study of the law. It gave Lincoln
so high an opinion of Stanton's ability that, when he became President
several years later, he chose Stanton to be his Secretary of War. And it
gripped judge and jury with such effect that McCormick lost his case. It
was a wonderful speech.
Abraham Lincoln, who made no speech at all, was the one who derived the
most benefit in the end from this lawsuit. It not only aroused his
ambitions, but gave him his first big fee--$1,000. This money came to
him at the precise moment when he needed it most, to enable him to enter
into the famous debate with Douglas--the debate that made him the
inevitable candidate of the Republican party. It is interesting to note
how closely the destinies of Lincoln and McCormick were interwoven. Both
were born in 1809, on farms in the South. Both struggled through a youth
of adversity and first came into prominence in Illinois. Both labored to
preserve the Union, and when the War of Secession came it was the Reaper
that enabled Lincoln to feed his armies. Both men were emancipators, the
one from slavery and the other from famine; and both to-day sleep under
the soil of Illinois. No other two Americans had heavier tasks than
they, and none worked more mightily for the common good.
Of all McCormick's lawsuits, and they were many, the most extraordinary
was the famous Baggage Case, which lasted for twenty-three years--from
1862 to 1885. It was probably the best single instance of the man's
dogged tenacity in defence of a principle. The original cause of this
trial was a comedy of mishaps. A McCormick family party of six, with
nine trunks, boarded a train at Philadelphia for Chicago. The train was
about to start, when the baggage-master demanded pay for 200 pounds of
surplus baggage. The amount was only $8.70, but McCormick refused to pay
it. He called his family out of the train and ordered that his trunks be
taken off. The conductor refused to hold the train, and the trunks were
carried away. Mr. McCormick at once saw the president of the railroad,
J. Edgar Thompson, who telegraphed an order for the trunks to be put off
at Pittsburg. The McCormicks set out for Chicago by the next train. At
Pittsburg they learned that the trunks had been carried through to
Chicago. And the next day, in Chicago, when McCormick went to the Fort
Wayne depot, he found it a mass of smoking cinders. It had caught fire
in the night, and the nine trunks had been destroyed.
McCormick sued the railroad for $7,193--the value of the trunks and
their contents. Repeatedly he won and repeatedly the railroad appealed
to higher courts. After twenty years the worn and battered case was
carried up to the nine Justices of the United States Supreme Court. They
decided for McCormick. But even then the railroad evaded payment for
three years, until after McCormick's death. Then the president of the
road signed a check for $18,060.79, which was the original value of the
nine trunks plus twenty-three years' interest.
McCormick did not for a moment regard this case as trivial. It involved
a principle. Once when a friend bantered him for fighting so hard over a
small matter, he replied, "My conscience, sir! I don't know what would
become of the American people if there were not some one to stand up for
fair dealing." His victory did much to teach the railroads better
manners and a finer consideration of the travelling public. Soon after
the conclusion of the case, a trunk belonging to a relative of the
McCormicks was destroyed on the New York Central. It value was $1,300,
and one of the railroad's lawyers promptly sent a check, saying, "We
don't want to have a lawsuit with the McCormicks."
For these numerous lawsuits McCormick paid a terrible price, both in
money and friendship. He acquired a reputation as "a man who would law
you to death." He brought down upon himself to a remarkable degree the
hostility of his competitors, and prevented himself from receiving the
full credit and prestige that he deserved. Instead of being revered as
the father of the Reaper business, he was feared as an industrial
Bismarck--a man of unyielding will and indomitable purpose, who regarded
his competitors as a pack of trespassers in an empire that belonged by
right to him.
The truth is that this situation did not arise because of the natural
perversity of either McCormick or his competitors. In his later life,
McCormick proved that he could co-operate with his equals in the most
harmonious way, in a new business enterprise. His competitors, too, were
for the most part men of ability and uprightness. Neither in their
public nor private lives, was there any stain upon the honor of such men
as Wood, Osborne, Adriance, Manny, Emerson, Huntley, Warder. Bushnell,
Glessner, Jones, and Lewis Miller. But these men were all newcomers.
They were beardless striplings compared to McCormick. He had made and
exhibited a successful Reaper twenty years before the first of them
began. His father had grappled with the problem of the Reaper before
most of them were born. It was inevitable, therefore, that there should
have been an unspanable gap between the two points of view. McCormick
stood alone because he _was_ alone. He and the Reaper had grown up
together in long hazardous years of pioneering, through ridicule and
poverty and failure. It was his dream come true. And in the same spirit
with which he had fought to create it, he also fought to hold it, and to
protect it from men to whom it was not a dream and a life-mission, but a
mere machine.