Authority and trustworthiness: historical Authority and trustworthiness: historical perspectives on the expert and judge in perspectives on the expert and judge in

intellectual property disputesintellectual property disputes

Graeme Gooday & Stathis Arapostathis, Graeme Gooday & Stathis Arapostathis, University of LeedsUniversity of Leeds

AHRC Research project: Owning and AHRC Research project: Owning and Disowning Invention: Intellectual Disowning Invention: Intellectual

Property, authority and identity in British Property, authority and identity in British science and technology, 1880-1920science and technology, 1880-1920

OVERVIEW OF THE PAPEROVERVIEW OF THE PAPER► Introduction: trustworthiness in the courtroom Introduction: trustworthiness in the courtroom

► Judicial discretion and the master patent: the Bassano Judicial discretion and the master patent: the Bassano case 1885-86 case 1885-86

► The Varley case: Circulating Narratives and AuthorityThe Varley case: Circulating Narratives and Authority

► (De)Constructing Evidence and Expertise in the (De)Constructing Evidence and Expertise in the Electric Lamps IndustryElectric Lamps Industry

► Three concluding pointsThree concluding points

Introduction: trustworthiness in the courtroomIntroduction: trustworthiness in the courtroom

► Historic problem of conflicting expert testimony (Golan, 2003; Historic problem of conflicting expert testimony (Golan, 2003; Gooday 2008) - ‘Liars, damned liars and expert witnesses’Gooday 2008) - ‘Liars, damned liars and expert witnesses’

► Judicial authority as decision about whom to trust: Experts? Judicial authority as decision about whom to trust: Experts? Judges? Which ones? Contrast positivist view of adjudicationJudges? Which ones? Contrast positivist view of adjudication

► Trustworthiness - practical reliability and moral honour: major Trustworthiness - practical reliability and moral honour: major theme re experts authority in history of science & technologytheme re experts authority in history of science & technology

► Performative view of authority - contrast Weber’s view of Performative view of authority - contrast Weber’s view of legal- rational authority of judges inhering in legal system legal- rational authority of judges inhering in legal system

► Luhman: ‘confidence’ in established social systems vs Luhman: ‘confidence’ in established social systems vs interactive ‘trust’. Confidence in judges rather than trust?interactive ‘trust’. Confidence in judges rather than trust?

Criticisms and longer term shift to judges specializing in IPCriticisms and longer term shift to judges specializing in IP

Focus on the JudgesFocus on the Judges

Justice NorthViscount Alverstone

(Richard Webster)

Justice Trayner Justice Linley

Sir Edward Fry Lord Justice CottonWilliam Baliol Brett, Viscount Esher

Judicial discretion & master patents: the Bassano Judicial discretion & master patents: the Bassano casecase

► Bell-Edison telephone patents in 1880s Bell-Edison telephone patents in 1880s contested, hence much litigation contested, hence much litigation

► Validated in United Telephone Validated in United Telephone Company vs Harrison Cox Walker, Company vs Harrison Cox Walker, 1882:1882:

► Key issue for speech: the transmitter Key issue for speech: the transmitter Edison’s patent based on vibratingEdison’s patent based on vibrating drum, with a current regulator made of drum, with a current regulator made of lampblack (semi-conducting carbon).lampblack (semi-conducting carbon).

► Judge Justice (Edward) Fry: found that Judge Justice (Edward) Fry: found that defendants had infringed Edison patent.defendants had infringed Edison patent.

► Construed patent broadly to cover all Construed patent broadly to cover all kinds of carbon & other semi-kinds of carbon & other semi-conductorsconductors

► Potentially a form of master patent.Potentially a form of master patent.

Early Bell telephone

Edison patent transmitter

UTC vs Bassano & Slater 1885-6UTC vs Bassano & Slater 1885-6

► Telephone by George Bassano & E. Slater (Derby) 1885 – Telephone by George Bassano & E. Slater (Derby) 1885 – uses wooden board and tufts of silk to transmit speech. uses wooden board and tufts of silk to transmit speech.

► UTC lawyersUTC lawyers: : Sir Richard Webster & Fletcher MoultonSir Richard Webster & Fletcher Moulton► Expert Witnesses: John Hopkinson, Frederic Bramwell and Expert Witnesses: John Hopkinson, Frederic Bramwell and

William Thomson – the elite set that usually won cases.William Thomson – the elite set that usually won cases.► Hopkinson & Bramwell testify: any vibrating surface was a Hopkinson & Bramwell testify: any vibrating surface was a

diaphragm, irrespective of construction or materialdiaphragm, irrespective of construction or material ► So Bassano vibrating wooden board infringes Edison So Bassano vibrating wooden board infringes Edison

patentpatent► Justice North invokes Fry judgement to uphold UTC claim Justice North invokes Fry judgement to uphold UTC claim ► In Court of Appeal, Lords Cotton, Lindley and Lopes In Court of Appeal, Lords Cotton, Lindley and Lopes

uphold North’s judgement, again appealing to Fry.uphold North’s judgement, again appealing to Fry.

Public Debate over Bassano Judgement June Public Debate over Bassano Judgement June 18861886

► Focus on Fry’s claim that diaphragm was just Focus on Fry’s claim that diaphragm was just “something that separates something from “something that separates something from something else”. something else”.

► Technical Press gently critique competence of judges Technical Press gently critique competence of judges ► E.g. E.g. Telegraphic Journal and Electrical ReviewTelegraphic Journal and Electrical Review

editorial: editorial: ► ‘ ‘How long are these sophistical definitions to stand? How long are these sophistical definitions to stand?

When will a judge throw to the winds the shifting and When will a judge throw to the winds the shifting and evasive assertions of partisan scientists, who quibble evasive assertions of partisan scientists, who quibble over gnat-like niceties, and, when it suits their over gnat-like niceties, and, when it suits their purposes, complacently close their eyes whilst a purposes, complacently close their eyes whilst a whole camel is gulped down?’ whole camel is gulped down?’

► ‘ ‘No doubt the learned ones of the bench always No doubt the learned ones of the bench always seek to give righteous judgements[;] but in their seek to give righteous judgements[;] but in their straining to be scientifically precise, they sometimes straining to be scientifically precise, they sometimes overlook the claims of common sense.’ (overlook the claims of common sense.’ (Telegraphic Telegraphic Journal and Electrical ReviewJournal and Electrical Review, 19 (1886), 1), 19 (1886), 1)

Controversy over integrity in Controversy over integrity in The The TimesTimes

► Silvanus Thompson - Quaker physicist, inventor, expert Silvanus Thompson - Quaker physicist, inventor, expert Letter to the Letter to the TimesTimes June 1886 Bassano case June 1886 Bassano case demonstrates “Judicial warping of patents”: judges and demonstrates “Judicial warping of patents”: judges and lawyers acted to suit the interests of “wealthy backers”. lawyers acted to suit the interests of “wealthy backers”.

► John Imray – Leading patent agent and expertJohn Imray – Leading patent agent and expert‘‘Judges who know their duty do not tie down the Judges who know their duty do not tie down the invention to the precise details given by the inventor … if invention to the precise details given by the inventor … if they see that, notwithstanding variations of form, they see that, notwithstanding variations of form, material, or arrangements of parts, some rival apparatus material, or arrangements of parts, some rival apparatus has in fact the “pith and marrow” of the original, they has in fact the “pith and marrow” of the original, they justly pronounce that to be an infringement.’justly pronounce that to be an infringement.’

► Vitriolic exchanges in Vitriolic exchanges in TimesTimes correspondence columns… correspondence columns…► Loss of confidence in judicial impartiality on patent Loss of confidence in judicial impartiality on patent

matters?matters?

Samuel Varley and the winding of dynamosSamuel Varley and the winding of dynamos

► New electrical power supply technologies of 1870s/80s – great need for high stability of supply voltage (esp for consumers)

► Winding dynamos and guaranteeing voltage regulation was a major technical challenge for electricians. Von Siemens, Gramme, Varley, Crompton, Kapp and Brush worked on the problem and patented techniques for winding.

► 1876 Samuel Varley filed patent No 4,905 covering a form of dynamo and winding of the magnets for voltage regulation.

Models c.1870 by Zénobe Theophile Gramme (1826-1901)

The Brush winding patentThe Brush winding patent

► 18781878 Charles Brush granted a patent in the name of Herbert Charles Brush granted a patent in the name of Herbert John Haddan, Brush’s UK patent agent. Transferred to John Haddan, Brush’s UK patent agent. Transferred to Anglo-Anglo-American Brush Electric Light CorporationAmerican Brush Electric Light Corporation

► 18851885 the company applied for patent amendment - prompting the company applied for patent amendment - prompting a challenge from both Siemens and Crompton companies.a challenge from both Siemens and Crompton companies.

► But case judged in favor of Anglo-American Brush company. But case judged in favor of Anglo-American Brush company.

► 1886 1886 Brush Corporation started action against infringers- Brush Corporation started action against infringers- Crompton Co had to agree to pay royalties and take licenses.Crompton Co had to agree to pay royalties and take licenses.

Samuel Varley vs. Anglo-American BrushSamuel Varley vs. Anglo-American Brush

Varley’s polemic in Telegraphic JournalVarley’s polemic in Telegraphic Journal (1887): (1887):

i)i) His patent (No 4905) anticipated Brush invention His patent (No 4905) anticipated Brush invention

ii)ii) Brush knew about his inventions via a network of industrial Brush knew about his inventions via a network of industrial intelligenceintelligence

iii)iii) Compound winding was a method he had developed after 10 years Compound winding was a method he had developed after 10 years experimenting & practical experience.experimenting & practical experience.

iv)iv) His notebook entries would prove his priority and long term His notebook entries would prove his priority and long term commitment to experimentationcommitment to experimentation

Varley’s aimsVarley’s aims::► to legitimize a master narrative about his inventionto legitimize a master narrative about his invention► to fashion himself as the ‘morally principled’ inventor who claimed to fashion himself as the ‘morally principled’ inventor who claimed

credit not for justice and honour. credit not for justice and honour. ► to construct a public representation of himself as victim of influential to construct a public representation of himself as victim of influential

scientific authorities (who could not accept an ‘outsider’ as himself).scientific authorities (who could not accept an ‘outsider’ as himself).

King, Brown and Company vs. Anglo-American Brush CompanyKing, Brown and Company vs. Anglo-American Brush Company

► October 1888October 1888, King, Brown and Co., filed case against , King, Brown and Co., filed case against the Brush Co. to prevent any extension of the Haddan-the Brush Co. to prevent any extension of the Haddan-Brush patent.Brush patent.

► 26 June 188926 June 1889: King, Brown and Co. win case, Brush : King, Brown and Co. win case, Brush loses two appealsloses two appeals

Varley’s vindication Varley’s vindication ► Judgement of Lord Trayner, on the outcome of the Judgement of Lord Trayner, on the outcome of the

case: Regarding Samuel Varley “there is no doubt in case: Regarding Samuel Varley “there is no doubt in my mind of his honesty”my mind of his honesty”

► Varley thus established in court as inventor of Varley thus established in court as inventor of compound winding, and trustworthy witnesscompound winding, and trustworthy witness

From Swan to Edison-SwanFrom Swan to Edison-Swan

► The invention of the incandescent electric lamp was a The invention of the incandescent electric lamp was a highly contested matter both in Britain and in USA highly contested matter both in Britain and in USA throughout the 1880s. throughout the 1880s.

► 1883 merger of Swan Electric Light Co & Edison 1883 merger of Swan Electric Light Co & Edison Electric Co.Electric Co.

►BP No.4576, 1879 Edison patent for BP No.4576, 1879 Edison patent for incandescent lamps: general in its scope, thus a incandescent lamps: general in its scope, thus a tool to block competitors tool to block competitors

►Joseph Swan could establish possible priority Joseph Swan could establish possible priority ►Swan’s patents (No. 4933 (1880) & No 2 (1880)) Swan’s patents (No. 4933 (1880) & No 2 (1880))

on processes of carbonisation and effecting on processes of carbonisation and effecting vacuum in the bulb important for manufacturingvacuum in the bulb important for manufacturing

► 1888 Edison and Swan Electric Light Co. vs William 1888 Edison and Swan Electric Light Co. vs William Holland ( Jablochkoff Co., General Electric, Anglo-Holland ( Jablochkoff Co., General Electric, Anglo-American Brush)American Brush)

(De)Constructing Evidence and (De)Constructing Evidence and ExpertiseExpertise

► Judge Kay: verdict against Edison & Swan Company Judge Kay: verdict against Edison & Swan Company based on external expertisebased on external expertise

► Expert: Sir George Gabriel Stokes (Cambridge Expert: Sir George Gabriel Stokes (Cambridge Professor) Professor)

►conducted independent research and supervised conducted independent research and supervised relevant tests and experiments relevant tests and experiments

►Stokes’ report: a. replication not guaranteed by Stokes’ report: a. replication not guaranteed by the degree of disclosure in the specification b. the degree of disclosure in the specification b. questioned the workability and commercial questioned the workability and commercial success of Edison’s patented incandescent lamp.success of Edison’s patented incandescent lamp.

► February 1889 - Court of Appeal: February 1889 - Court of Appeal: Lords Cotton, Lindley Lords Cotton, Lindley and Bowenand Bowen judged in favour of the Edison and Swan Co. judged in favour of the Edison and Swan Co.

► Judged Bowen: “The patent appears to me to claim in Judged Bowen: “The patent appears to me to claim in distinct and unmistakable language every combination distinct and unmistakable language every combination of any carbonised filament …” . of any carbonised filament …” .

Adversarial ReactionsAdversarial Reactions► The Electrician:The Electrician: “flimsy” patent, Edison “flimsy” patent, Edison

“overvalued” inventor, “overvalued” inventor, “…decline[d] to look “…decline[d] to look up to him as the greatest inventor of the age”up to him as the greatest inventor of the age”

► Telegraphic Journal and Electrical Review Telegraphic Journal and Electrical Review (February 1889)(February 1889)::““Of course the whole matter lies in a nutshell. Of course the whole matter lies in a nutshell. Edison’s name is a sort of fetishEdison’s name is a sort of fetish, and the , and the public, including the judges, have come to public, including the judges, have come to regard Edison as regard Edison as a sort of phenomenal a sort of phenomenal inventorinventor, and when he is advocated by such , and when he is advocated by such an awe-inspiring blunderbuss as the Attorney an awe-inspiring blunderbuss as the Attorney General seems to be, General seems to be, cool reason has very cool reason has very little chance of successlittle chance of success.”.”

ConclusionsConclusions► Confidence in judge’s authorityConfidence in judge’s authority: :

Critique of judges’ ability to provide sound and just Critique of judges’ ability to provide sound and just verdicts reflecting social concerns about IPverdicts reflecting social concerns about IP

Shift towards specialized patent judges…?Shift towards specialized patent judges…?

► Diversity of trust relations in authorityDiversity of trust relations in authority Trust in witnesses played key role in Varley & Trust in witnesses played key role in Varley &

Edison-Swan cases. But judges Edison-Swan cases. But judges qua qua authorities use authorities use trust in their adjudications rather differently.trust in their adjudications rather differently.

► Longer term questions (relevant at present) Longer term questions (relevant at present)

What kind of networks of trust are appropriate for What kind of networks of trust are appropriate for interaction between judges and experts?interaction between judges and experts?

What is appropriateWhat is appropriate balance of judge’s specialist IP balance of judge’s specialist IP expertise vs. all-round judicial competence?expertise vs. all-round judicial competence?

Public accountability of judges in such matters?Public accountability of judges in such matters?