| THE SELDON PATENT by Gerald R. Wolfe in 3 parts. |
 This model was submitted to the U.S. Patent Office May, 8 1879 with the patent application. Overall length is 10 inches. The engine simulates a Brayton engine modified by Selden. Photograph is from the Smithsonian Institution were this model is kept. |
| The patent and the automotive industry came together to create a turmoil that left neither car nor patent the same. Virtually every nut and bolt in the automobile was patented and litigation for infringement poured into the courts. But the biggest blow, with the most far reaching effect, was the patenting of the automobile itself. J. Harold Byers, in the Journal of the Patent Office Society (October, 1940, said: “The Selden case was one of those events that give rise to legends. So widespread was the interest in this case and so incomprehensible to the lay mind were some of the facts involved, that garbled accounts were circulated, some having but slight foundation in truth. Moreover. because the history of the Selden patent epitomized practices which came to be regarded as abuses, and because the Selden patent by reason of the prominent position and immense financial resources of the industry to which it related, constituted a magnified cross section of the patent system, the case provided a target for reform. Thus it has come about that the Selden case has been quoted and misquoted, panned and damned, and used to illustrate almost everything that is, was, or could possibly be the matter with the patent system.” The intent of this article is to examine Selden, his patent and the men and events surrounding them in an attempt to present a more clear and comprehensive picture of this confusing and complex issue. George B. Selden (1846-1922), a patent lawyer from Rochester, New York, was the man who patented the automobile. Though a horseman at the time He entered the Civil War as a union cavalryman, a number of unpleasant incidences with his assigned mount, culminating in a near-fatal accident, contributed to turning his thoughts toward horseless locomotion. He has been credited with having “designed and built the first internal combustion engine actually operative for the purpose. This engine was capable of driving a vehicle over the road at 14 miles per hour. In 1879 He filed His application for patent. . . This was nearly five years prior to Benz, Daimler and other well known European automobile pioneers, and substantially twenty years before the beginning of the American gasoline industry.” Selden’s intent, as stated in his patent application, was, “the production of a safe, simple and cheap road-locomotive light in weight, easy to control, and possessed of sufficient power to overcome any ordinary inclination.” Two pertinent objections could be raised against Selden. The first is the lack of production, as alluded to in the previous statement, the second being the sixteen year period that the patent application remained pending in the patent office, ostensibly perpetrated by Selden himself. However, the prevailing attitude that George Selden was a non-mechanically inclined fraud appears to be unsubstantiated by these foregoing observations. Instead, it seems he may have been a shrewd and farsighted, if less than honorable, businessman with enough mechanical know-how to begin experimentation on compression engines, and who was able to anticipate the impact and wealth potential of the automobile, who took advantage of existing laws to exploit his invention. Selden began tinkering with steam as a motive force but found that he could not substantially resolve the deficits He saw in earlier attempts. These deficits named in his patent application, included the weight of the boiler, engine and water supply; the complexity of operation that required the presence of a skilled; and the difficulty in adapting the machine to the rough terrain it had to negotiate. Then, at the Centennial Celebration of 1876 in Philadelphia, he witnessed a display of an internal combustion engine designed and patented by one George Brayton. This led Selden to experiment with such an engine and design His road-locomotive around on exhibiting such modifications as Selden saw necessary. (The differences between the Brayton and Selden engines are discussed in Part; 3 of this article.) Though His experimentation led Him to believe that three cylinders were needed to provide proper balance for the engine, He bored and used only the center cylinder of his three-cylinder casting for the continued study of His design. He was also led to Hiram Everest and M.P. Ewing, founders of the Vacuum Oil Co. of Rochester. His single cylinder was not provided with cooling fins or water jacket and the lard oil used for lubrication proved to be unsatisfactory as it produced too much smoke and carbon deposits. Vacuum Oil formulated a heavy oil that was good for Selden’s use and is still the basis of internal combustion engine lubrication today. Selden’s was also good for Vacuum Oil, giving them an advertising gimmick which, as will be see, perpetuated a still quoted myth about the occasion of Selden building his firs car. This early ad stated: Progress in the Automobile industry: “Get a horse!” they told George Selden when He introduced this strange contraption, the first automobile, on the streets of Rochester, N,Y., in 1877. But Selden actually made his horseless carriage run and it was no coincidence that the first petroleum lubricants used in an internal combustion engine were those used in Selden’s car. Unable to get satisfactory results with the animal fats and tallows then used as lubricants, Selden went to Hiram Everest, a fellow townsman who had just founded Vacuum oil Company, forerunner of the present Socony-Vacuum Oil Company. Everest, a manufacturer of harness oils, developed the petroleum lubricant which insured the success of the first automobile. (Vacuum became Socony-Vacuum when acquired by Standard Oil of New York. They are new part of Mobil Oil Co.) His experimentation completed, completed, Selden submitted his patent application and model to the patent office on May 8, 1879. At this time, there was very little activity in the development, construction or use of the horseless carriage. A series of delays, many of which were minor changes in the drawings, held up final approval of the patent for sixteen and one-half years after the initial filling date. Selden, who prosecuted his own patent, took advantage of the then existing rule that two years were permitted for tan aspiring patentee to respond to required changes. Nine revisions were called for and made in the original document with the patent office spending only a total of seven months in consideration of Selden’s work. The rest of the time was used by Selden himself until circumstances caused him to complete his application, at which time paten number 549,160 was issued to him on November, 1895. It is important to note that a pending patent has priority and is, in a sense, protected as if it were a patent. Two possible explanations of Selden’s conduct exist. First, as already stated, there was little activity in the automotive field prior to the mid-nineties. Knowing that a patent is only valid for a seventeen year period, at which time it becomes public property, so to speak, we can see, as Selden did, that immediate approval would have allowed the patent to expire in 1896. This was prior to the advent of the automobile industry. The delays against final approval moved the expiration date back to November 5, 1912 and made the patent much more valuable. Some feel that the suggestion that Selden foresaw the rise of the automobile is to credit him with being able to divine the future. Others hold that his delays were the result of having no funds or backers to put the patent to use. Perhaps he was simply a man with a product but no market who made an educated guess. Whatever the case, by the mid-nineties Selden could readily see the growth of interest in self-propelled vehicle. Secondly, Selden could have been an infringer of the patents Brayton received (1872 and 1874) on his engine had immediate approval been secured and any attempt made to use it. If Selden countered such a suit with arguments that he had perfected its operation, the prior patent could be upheld by patent protection afforded a broad design within which a perfected piece(s) fits. In this case, before Selden could produce his improved version of Brayton’s engine he would have had to come to terms with Brayton as the holder of the broader patent. Selden might have had a carriage body and drive mechanism as he described them without benefit of an engine, especially since he openly claimed that his was a modified Brayton. However, Brayton’s patents expired before Selden’s was even issued and Selden was left in a position to do unto others what might have been done unto him. One thing is certain, his timing left him in a position to step in and take control of a budding industry. It is this apparent manipulation of patent laws that has led to undying criticism of George Selden. The patent languished in obscurity for four years, probably unknown to most, if not all, of those who were actively developing the gasoline automobile. It was brought to life following a series of events that allied financial tycoon William C. Whitney of the Electric Vehicle Company and Colonel A.A. Pope of the pope manufacturing Co. of Hartford, Conn. This union, named the Columbia and Electric Vehicle Co., was ostensibly formed to produce electric vehicles, yet they purchased the Selden patent which covered gasoline vehicles. This purchase was made on November 4, 1899 for $10,000 plus royalty on every car sold. Pope had a preference for electric vehicles, believing that people would not want to “sit over and explosion” and, though he later acquiesced when events proved him wrong, his part in this ventures seems particularly odd, leading to more speculation. There were those who felt that such a move might have been an attempt to obstruct gasoline motor development, leaving an open market for electrics. This is questionable in light of the fact that they soon issued licenses to gasoline-oriented manufacturers for production of cars under the patent. Licensing required an initial fee plus 5% royalty on each car produced. Little time was lost in waving the patent in the faces of “infringers”. A look at the patent application is appropriate to gain a base of knowledge with which to understand the events that unfolded around patent no. 549,160. The patent application in its entirety will appear after this 3 part article. Close examination reveals 2 points which beg to be made. First, there is relatively little description of the engine, and majority of the balance ascribed to details of the body, carriage and drive mechanism. His assertion that “the general construction and mode of operation of liquid-hydrocarbon engines of this class are now well known, . . . ” is at least questionable for 3 reasons. He failed to name the class he referred to which could have been either two or four cycle in any number of forms. (His drawing was indicative of the two cycle type only.) Also, in 1895, most of those outside the small group who were experimenting with some form of engine had yet to see or hear of the automobile. Finally, if it was such a well known entity, why would it be patentable? Secondly, such a vague description must have been the result of a conscious effort to be as imprecise as possible. This could only lend itself to monopolizing internal combustion engine production and production of the automobile itself. Not only did Selden describe the general characteristics of the automobile as it was in the late 1800’s, he also essentially described the cars we drive today. While the granting of a patent does lend itself to a monopoly of that invention, it is the intent of the patent office that this be for the protection of the patentee, not for the subjugation of the public. Both these points, particularly that pertaining to the engine, would become major issues i8n the years to come. Again, the new owners of patent number 549,160 wasted little time in making their presence known. Dubbed the “lead cab trust” for the lead used in electric vehicle batteries, the Pope/Whitney faction engaged the legal services of Betts, Sheffield and Betts and litigation got under way. The first step was a letter sent to the leading manufacturers of gasoline automobiles from the lawyers stating: “Our clients inform us that you are manufacturing and advertising for sale vehicles which embody the scope of the Selden patent. We notify you of this infringement and request that you desist from the same and make suitable compensation to the owner of the patent therefore.” This was followed by the appearance of the patents claim in the June 27, 1900 Horseless Age precisely as they appear in the patent application. Lest anyone doubt their sincerity, legal action was taken the following month. Defendants named in the suit included the Winton Motor Carriage Co. of Cleveland (then the largest manufacturer of automobiles), the Buffalo Gasolene Motor Carriage Co. of Cleveland (then the largest manufacturer of automobiles), and Messrs. Percy Owen and A.W. Chamberlain of New York City (Winton sales representatives). Other suits were brought simultaneously against groups and persons large and small. Even imports were subject to the trust’s scrutiny and later advertising would claim that “also users of unlicensed machines are liable”. By initiating such bold action at the outset, all phases of the gasoline automobile market were put in a virtual stranglehold. The hue and cry of the trade publication was immediate and acrid. The July 11, 1900 Horseless Age had this to say: “The attack of the lead cab trust on the gasoline vehicle industry concerns every manufacturer of these vehicle, small builders and large ones alike. What the trust lacks in validity of claims it will not be slow to make up in legal talent and financial strength. Even were the Selden patent a mere sieve for ‘holes’ no manufacturer could afford to rely on his own strength in ignoring it, lest a flank attack, in the defeat of his weaker neighbor, should find his own defenses unguarded. in union is strength.” This was typical of the opinions of the time, and the attention given the issue in the motoring press was by no means confined to editorializing. Patent lawyers and “mechanical experts” were called upon to render their knowledge. An article by one John C. Higdon (Horseless Age, 8/8/00), in which he raised the question of the presence of invention in the Selden patent, illustrates: “To illustrate, the aggregation of a washing machine placed upon a motor vehicle will not amount to a patentable invention, even if the washing machine were driven by the motor of the vehicle. The reason for this is that a washing machine, although it be mounted upon a vehicle, produces only its usual result. Duplication of articles is not invention . . . Hence, it is seen that a new combination without any new method of operation is not invention.” Mr. Higdon went on to dissect the patent and concluded: It is clearly evident that the broad claim of the Selden patent should never have been granted by the commissioner of patents, in as much as it clearly appears that said broad claim involves nothing patentable.” Higdon cited four reasons for his conclusion: 1:) The combination of engine, motor vehicle and friction clutch or disconnecting device was not invention; 2:) It would nave occurred to any skilled gas engine mechanic (this would be cause for disclaimer by the patent office); 3:) It merely substituted one engine (gas) for another (steam) and ; 4:) it was considered inoperative due to the lack of a flywheel (an invention must be operable in order to be patentable). The final point could only be surmised via general mechanical knowledge as only the miniature patent model and engine prototype with but on bored cylinder had ever been constructed. the impracticality of the design was a recurring cry of the patent’s opponents. The writings of Messrs. Parker, Burton and Stoddard were equally unfavorable (The Automobile Review, 8/15/03) and show the opposing view: “The object of patent law is to promote the progress of science and useful arts. “On the one hand to such progress a liberal policy., one that shell give full and complete protection to an invention, is necessary: on the other hand the progress of the arts must not be impeded by monopolies created upon ideas which are already public property. It is to encourage invention, not enterprise, that patents are given. Public knowledge is the inventor’s working capital, to sequ3ter any part of it to private use is as odious a monopoly as was that on salt or the other necessaries of life … “But Mr. Selden’s specification says h has produced a lighter and better road locomotive than had been known before. If so, he should be entitled to a claim to such inventions as may contribute to the result, for the mechanical details, such for instance, as he claimed in claims 4 and 6. “The remaining claims are simply attempts to appropriate ideas which have long been public property.” The justification by the patent office for issuance was that, while the pieces of Selden’s road engine were already known, the combination thereof was unique. The government calls this a combination patent, in which several components are assembled for a new result. It was held that bringing together the body, drive mechanism and engine gave Selden the right to such a patent. According to the Commissioner of Patents, 1895, XXVII), Selden’s car “ma be considered the pioneer invention in the application of the compression gas engine to road or horseless carriage, use”. On November 9, 1900, United States Circuit Court Judge Alfred C. Coxe of the Southern District of New York, handed down a decision in favor of the plaintiffs, overruling the defendants writ of demurrer which claimed that the patent was “void for lack of patentability”. In his decision he stated the following (Horseless Age, 11/14/00): “A patent must not be held invalid upon demurrer unless its invalidity so clearly appears that no testimony can change the legal aspect of the case. If doubt exist, the complainant is entitled to its benefit, … It should be remembered that the invention, if there be one, was made very early in the history of ‘horseless carriages’. The court will take judicial notice that prior to May, 1879, the art of propelling vehicles by motors, carried by the vehicle itself, was in its infancy. These carriages were unknown to the streets of New York . . . The fact that Selden’s work was done over twenty-one years ago should not be lost sight of in estimating the value of his achievement . . . It is thought that the complainants are entitle to a more liberal interpretation of the patent that that contended for by the defendants.” The November 21st Horseless Age accused the makers of gasoline automobiles of having been caught napping, thereby giving a real advantage to the plaintiffs. The manufacturers were expecting the patent to be overturned, thinking it was “so palpably invalid for lack of invention that the court could determine this for itself by merely reading the patent, and without the aid of any testimony whatever . . .” (Horseless Age, 11/29/00) Thus far no formal hearing had been held and no testimony given by either side. Only evidence was admissible at this point and the hearing held only to decide on the writ of demurrer. The court does have the authority to overthrow a patent duly issued by the patent office, however, the courts have shown a reluctance to do so on a writ of demurrer, preferring instead to proceed to a full hearing in which there is testimony and a more thorough examination of the case. Horseless Age called for immediate action on the part of the newly formed Hydrocarbon Association to press on to the next level of hearings and claimed that their contacts with the Bar Association said the defense would have a very strong case if it be thoroughly worked up. In a subsequent edition, all interested and concerned parties were urged to unite their strength, evidence and finances with the Hydrocarbon Association to add “solidarity to the defense”. The patent law firm of Kenyon and Kenyon was retained. Nonetheless, it is easy to imagine the alarm that must have spread through the budding industry. the trade journals continued the attack on the trust and it would seem that popular support was with the defendants. The trust smacked of big business and monopoly at a time when America was prepared to rally around a trust-busting president in Theodore Roosevelt.
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| PART 2 |
