Lightning Man_ The Accursed Life of Samuel F. B. Morse - Kenneth Silverman [160]
Morse dug up a copy, and found that Swain had not at all been thinking of long-distance communication or of recording. Rather, as the title implies, Swain had designed his code for parley through a wall, by invalids and prisoners knocking and scratching upon it. Moreover, although he had represented the knocks by dots, he indicated the scratches as perpendicular lines, not dashes. Morse believed that the patent protecting his own code remained valid. Bain’s telegraph was an outright infringement, like the others—“mine made complicated.”
Morse tried to stop Bain from getting an American patent by beating him to it. He had conceived an electrochemical telegraph as long ago as the Sully. Over the years he had experimented off and on with methods of causing an electric current to mark paper treated with iron sulfate, potassium iodide, and other chemicals. He abandoned the idea as inferior to his electromagnetic instrument. But with Bain arrived on the scene he filed an application to patent a method of sending signs “by means of the decomposing, colouring or bleaching effects of electricity acting upon any known salts that leave a mark as a result.”
Bain filed for a patent about two months later. He had obtained an English patent for his electrochemical telegraph the year before. When he filed for an American patent also, Morse’s old colleague Leonard Gale, now an examiner in the Patent Office, turned him down. Gale refused to accept the date of Bain’s English patent as evidence of priority, and declared that his application “interfered” with Morse’s already submitted application, a ruling upheld by the Patent Commissioner. As American patent law allowed, Bain appealed the controversial decision to the federal courts.
Morse attended Bain v. Morse, heard in February 1849 before the chief justice of the District of Columbia Circuit Court. Bain’s counsel portrayed their client as “a poor Scotch clock-maker.” They portrayed Morse as John Jacob Astor plus Prince Klemens von Metternich, a potentate with “numerous and powerful supporters in all parts of the Union … a man residing in one of the most beautiful villas in the State of New York, and revelling in all the luxuries which wealth, united with taste, can bestow.” The lawyers’ characterization of him so much inflamed Morse that at one point he protested from his seat in the courtroom.
Kendall no longer practiced law, but he argued Morse’s case himself, making a three-hour speech before the judge. The ruling surprised him:
Samuel F. B. Morse is entitled to a patent for the combination which he has invented, claimed, and described in his specification, drawings, and model. And … Alexander Bain is entitled to a patent for the combination which he has invented, claimed, and described in his specification, drawings, and model.
The Patent Office, that is, did not err in accepting Morse’s application but did err in refusing Bain’s application as an “interference” with it. Both parties were entitled to a patent for an electrochemical telegraph. Kendall explained to Morse that the judge had not comprehended his arguments: “The old man is really incapacitated for his duties by deafness and I must suppose, did not understand me.” The decision left open, however, the far more significant question of whether Bain’s electrochemical telegraph infringed Morse’s patent for an electromagnetic telegraph, particularly in using the dotdash code.
The press reargued Bain v. Morse, partly as a now thrice-told tale involving the Sully, Morse’s burnt fingers, and the rest. The New York Sun located chemists in the city who could testify that many years ago they had sold Morse acids and salts to make his first attempts in electrochemical telegraphy. Bain being a Scotsman, the issue became embroiled in the techno-nationalist war. A Rochester paper bashed his telegraph as a “cast off British affair.” “We ‘go in strong’ for our own country,” the Sun added; “We are determined … that American inventors shall not be deprived of their just fame.”
In the patent granted to Bain,