Thursday, July 26, 2012

Morse runs amok!

Our modern world is beset by patent trolls.  But a century ago the hot commodity was electricity and radio, not software design so that's where the patent trolls were rife. I could be even handed and argue that where there is money to be made you will always have a mix of legitimate and illegitimate claims to intellectual property.  But today you can truly patent anything: things that are alive, things that don't exist, even things that are already patented. Our modern patent system courts the absurd, which is why I was surprised to recently read of the greatest troll of all: Samuel Morse.

Samuel Morse tried to patent what amounted to the entire electromagnetic spectrum. I fear that were that attempted today, he might have succeeded. I first became aware of this historical footnote thanks to David Ewing Duncan writing for The Atlantic [LINK]. The case of Henry O’Rielly, versus Samuel F.B. Morse, was also known as The Telegraph Patent Case. This 1853 decision has had huge consequences. Immediately it created the legal concept that abstract ideas are not patent-eligible. This has limited patent trolls ever since. Here's how it went down.

Samuel F.B. Morse is best known as the inventor of the telegraph and of course... Morse code. He sent the first telegraph message on May 24, 1844. It was "What hath God wrought?". Morse was not the first person to try to convey data via wire. This was decades before Tesla invented AC current. So they were struggling to convey DC voltage which has the well known problem of loss to resistance. (see Ohm's Law (R = V / I ) Morse's solution was the repeater or relay. While the signal to noise ratio is still tractable, he used an amplifier and a filter to bump up the amplitude. His system needed one about every 20 mile, but it worked. However, that was just one facet of his patent. I'll quote the deeply dubious section 8 which was later struck down:
"Eighth. I do not propose to limit myself to the specific machinery or parts of machinery described in the foregoing specification and claims; the essence of my invention being the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances, being a new application of that power of which I claim to be the first inventor or discoverer."

When Morse invented the telegraph he offered to sell it to the U.S. government for $100,000... the modern equivalent of about a quarter million dollars. His working model was a 40-mile experimental line that ran from D.C. to Baltimore; built with a $30,000 federal grant. [More here] They rebuffed him, so Morse went looking for what we now call VC money.  Morse hired former postmaster general, Amos Kendall, as his agent to help do that. O’Rielly was the former editor of the Rochester Editor Newspaper and he happened to be friends with Amos Kendall. [note O’Rielly is sometimes spelled O’Reilly]

In June of 1846, Kendall signed a contract with O'Reilly and other patent licensees. O'Reilly clearly imagined a huge telegraph system crossing and interconnecting the country. They started with 15k of funding and began licensing local telegraph companies immediately. I'll quote that too just to be thorough.
 “...for the construction of a line of Morse’s Electra-Magnetic Telegraph to connect the great seaboard line at Philadelphia, or at such other convenient point on said line as may approach nearer Harrisburg, in Pennsylvania, and from thence through Harrisburg and other intermediate towns to Pittsburg, and thence through Wheeling and Cincinnati, and such other towns and cities as the said O'Reilly and his associates may elect, to St. Louis and to the principal towns on the lakes.” 
That licensing may have produced cash flow but it by 1851, it also produced 50 more telegraph companies operating in the United States some also creating competing technology and patents. O'Reilly though the had the right to manage that system, but Kendall had intended that it be only the right to build and that conflict was coming. By 1846 the Philadelphia to Pittsburgh line was complete. By 1847 he lit Boston was connected to New York and the Pittsburgh line was extended to Cincinnati and Louisville. But he was having money problems, so he issued stock in companies that technically he did not own. Kendall was pissed off and supported/encouraged the other telegraph companies in building competing telegraph lines. they filed injunctions against O'Reilly but failed. O'Reilly got over confident after the victory and expanded his network beyond even the original CP. That was a bridge too far. More here.

In 1848 Morse sued him for infringement of the telegraph patent #1647. [Patent text here] O'Reilly appealed and counter sued trying to invalidate the patent. He argued in favor of prior works by some European tinkerers. Essentially they held that the first seven "inventions" of the patent specifications stand but the  eighth is too broad. Morse legally disclaimed part 8 and kept the rest. O'Reilly may have started with a genuine understanding but it graduated to malefaction; he ran amok in other words. Sparing the future from the ramifications of Morse owning all RF... that was coincidental.  O’Rielly continued to start and stall companies and never succeeded. He got a job at a customs house in New York but was laid off in 1877 at the age of 72. He died in 1886. More here.