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Chapter 05 – Patents

Patents.

The Sea Of Energy

In Which The Earth Floats

by
T. Henry Moray

Chapter 5 – Patents

One of the most backward of all our American laws is our patent law. The independent inventor is completely at the mercy of the large corporations, unable to protect himself from those who are able to gain a monopoly through their ability to amass large numbers of attorneys and huge amounts of paper. Patent law prevents the inventor from asserting his own interests in that he must first honor all the regulations and decisions of the examiners and, thereby, become subject to the bureaucracy that will eventually, I think, destroy the Republic. Our Congress has failed to interpret the intent of our Founding Fathers and has not implemented the law in the way those Founding Fathers intended. No one stops to ask why the Constitution mandates that we have a patent office. Consequently, we have developed without vision a series of “stumble-bum” procedures that leave us completely at the mercy of designing individuals.

In his early years Henry believed, because of the advice of his attorneys, that patents were essential for a young inventor, and that in order for him to be successful he had to take out these patents. Even though he attempted to patent a number of devices, he was unsuccessful in all his efforts except in the case of the electrotherapeutic device. Part of the reason for inviting Carl Eyring and Harvey Fletcher to work on the Radiant Energy Device was to provide a way for Henry Moray to apply for patents. To assist him in this work, Harvey Fletcher introduced Henry Moray to Murray O. Hayes, Ph.D. and patent attorney. It is unreasonable to say that Carl Eyring and Harvey Fletcher did not receive complete disclosures when they were attempting to assist Henry in gaining a patent application. It is also unreasonable to say that Murray O. Hayes did not receive complete disclosure; as his patent attorney Hayes would have to know everything Henry knew. We also know that Hayes said to William Uvesy he (Hayes) would be able to reproduce the Radiant Energy Device. Consequently, from the patent standpoint, it becomes even more difficult for me to believe that Henry Moray did not consult with his advisors.

These applications ran into immediate difficulty not, as some assert, because Henry Moray did not make full disclosure, but because of the ignorance of the patent examiners themselves. The original patent application was first filed in 1931. This application was rejected on a number of bases. First, “Because no means was provided for causing the cathode to emit an appreciable number of electrons, the current produced in the cathode by the antenna will not heat the cathode to a temperature at which an appreciable number of electrons per second are emitted.” (In other words, according to Thomas E. Robinson, Commissioner of Patents, a solid state device, a transistor, cannot possibly work.) Second, because “No natural source of electric wave energy is known to the Examiner and proof of the existence of such a source is required.” In other words, it was not enough for Moray to demonstrate the effect of the energy source; he also had to identify it, which he could not do.

It should be possible to hold a patent examiner and prosecuting attorney peculiarly liable for their actions; then when the damage is done and the government cannot be held liable, the individuals themselves would be legally responsible for their prejudicial actions.

U. S. patent law is designed not to protect the inventor but primarily to protect the public from the monopoly eventuating when a discovery that is made is held by a few. Consequently, in appealing the examiner’s decision, the inventor is put in such a position that he eventually has to demonstrate to the patent office. This demonstration in itself prevents the inventor from filing patent applications after one year (two years in Moray’s time). If he files after the one year limit, he can lose his patent altogether.

The end result too often is that the inventor either applies prematurely for a patent, before he knows all the ramifications involved, or he does not get the rights due him because time restrictions prevent him from making further applications. Moreover, a United States patent only gives the holder a right to sue the infringer. If patent rights were designed truly to protect inventors, the government itself would prosecute for any infringement of the patent law.

Altogether, seven applications that directly involved the Radiant Energy Device were filed, all of which were rejected by the patent office on the claims that either no energy was available and that the applicant would have to prove a source of energy, or that Henry Moray did not provide means to heat his cold cathode devices.

In an effort to complete his patenting, Henry Moray prevailed upon some of his friends to furnish sufficient capital to enable him to go to Washington D.C. and consult a number of patent attorneys who, he hoped, could help him obtain patents. Dad thought this would be an excellent opportunity to take the entire family, and we traveled by automobile to Washington. The trip was not uneventful. Even though we drove a brand new car we burned out a main wheel bearing between Salt Lake and Denver, forcing us to spend the next three days in Denver until a bearing could be obtained and installed.

We spent long hours on the road to make up the time lost, putting us in Washington D.C. in the middle of the summer. The heat with the moisture affected our Western physical condition, so for a week we did not go out except in the evenings. But luck was with us. As far as sightseeing and learning of the Washington area, the trip could not have been more successful. By chance, we met a manager of one of the taxi companies. He enjoyed meeting us day after day at an appointed hour, taking the family around Washington. He opened many doors for us. We had an opportunity to get into the White House and other areas under conditions that the ordinary tourist was unable to do.

On the other hand, Henry Moray had more than a difficult time with patent attorneys as he spent hour after hour going from one to another. Finally he came to the offices of Lancaster, Allwine & Rommel. When he met Mr. Allwine he said, “I’d like to ask a question. Are all patent attorneys in cahoots? Why won’t anybody listen to me?” Mr. Rommel listened to his story, listened to what he had done, listened to the number of demonstrations, and then he said, “The reason why no one wants to take your case, no one wants to be involved, is that you’ve already lost your patent rights.” Then he explained to Henry Moray the meaning of Public Law in Section 4886 of the U.S. Patent Code. He explained to Henry that if demonstrations were truly tests, not demonstrations simply for convenience or pleasure or profit, and the inventor had improved his device after each of these tests, then they did not constitute public use. As a result, Henry Moray learned for the first time what a dangerous line he had been walking.

It was very fortunate that Henry Moray had kept copious notes showing everything he had done; showing that these demonstrations were not demonstrations, in fact, but tests wherein with each test he improved his device. After several days of discussion, Lancaster, Allwine & Rommel agreed to take the case.

In a letter to Henry Moray dated August 6, 1938, Mr. C. Ernest Allwine, stated:

“The material you left with me yesterday was so voluminous that I could do little more than review the material in a general way. The entire material, however, has been reviewed and while I do not feel qualified to comment on the soundness of your theories, the evidence is very convincing that you are in the process of developing a marvelous discovery irrespective of your own or anyone else’s theory as to the manner in which it operates. Up to the time and prior to the time you actually have on file all U.S. and foreign applications which it is desired to file and sufficient technical data to complete patent applications to obtain full coverage, any demonstrations which are not experimental could endanger and cause you to lose all your patent rights to your invention (See Sec. 4886 U.S. Patent Law on Public Use).

“If the inventor uses his invention for profit and not by way of experiment that is public use (Elizabeth vs. Pavement Co., 97 U.S. 126 at 137, 1878: James vs. Bowen, 139 Fed. 556,1905; Grenwalt vs. Stanley Co. of America, 54 Fed. 2nd 195 at p.196,1931) unless actual use resulting in profit is necessary to show the inventor how to perfect his invention, and unless he does perfect it in accordance with the teaching of such use (Sprague vs. Mfg. Co. 12 Fed. 721, 724,1882). But experimental use becomes public use when it extends further either in time, or in number of instances, than is reasonably required to test the invention. (International Tooth Brush Co. vs. Gaylord, 140 U.S. 55, 63, 1891; A. Shraders Sons vs. Wein Salts Corp., 9 Fed. 2nd 306; Austin Machinery Co. vs. Buckeye Traction Ditcher Co., 13 Fed. 2nd 697; Wilke vs. Manhattan Rubber Mfg. 14 Fed. 2nd 52, 1937). Which holds that demonstration of several small pieces of tubing, without disclosing the process by which it is made, preliminary to execution of a contract, held not to amount to public use.”

Allwine’s opinion bore out some of Henry Moray’s favorite testbook quotations:

“In regard to the question of what constitutes a public use of a manufacturing process or machine, it has been held that even though the public may not have access to the area of a factory where a machine or process is operated, the mere sale to the public of the products manufactured by the process or machine constitutes a `public use’ of such machine or process. “In contrast, purely experimental use of an invention, to test its operability and suitability for the intended purpose, is not considered a public use’ within the meaning of the law, even though the public may participate in the experimental trial of the invention. Whether any alleged experimental use by the public constitutes a bona-fide experiment and not a `public use or sale’. such as may invalidate a patent is a question which in the last resort can only be resolved by a court reviewing all the evidence of the particular use. For this reason, it is far safer for the inventor to file his patent application before any use whatever has been made of his invention by the public.

“Presumably, under the ruling in Ex Parte Ordas, the patent office may consider classified use by the Government to be ‘public use’ under the statute, even though such use is officially considered ‘Confidential’ or ‘Secret’ because of a security order.”

“To constitute public use, only one specimen of the invention need have been publicly used, and only one person other than the inventor need know of that use. Furthermore, the use may be public even though the invention is not visible to the public, provided that this is the normal way of using it (a watch movement, for instance). “In an analysis of Section 4886 it was stated that under certain conditions an invention having been in public use, or on sale, was a bar to patentability.

“These closely related phrases have been the subjects of much litigation and have required many court decisions to clarify their meanings. If the inventor allows his invention to be used by other persons generally, either with or without compensation, it will be in public use within the meaning of the statute. And that use is public which follows a transfer of the thing used from its inventor to the user, without reserving any control over it, or without expecting to make any change in it, or without any other restrictions.”

“If the inventor, or any other person who has not promised to keep the invention secret, uses the invention for profit, pleasure, or convenience, and not by way of experiment, that is a public use, unless resulting in profit is necessary to show the inventor how to perfect his invention, and unless he does perfect it in accordance with the teachings of such use, or makes a diligent effort to do so. But experimental use becomes public use when it extends further, either in time or in number of instances, than is reasonably required to test the invention. Nor will the fact that the inventor is but an employee in the place where he used his invention, or the fact that the profit goes primarily to his employer, prevent the operation of this rule.”

Over the years many people visited Dr. Moray’s Laboratories with no other interest than to satisfy their curiosity as to whether the stories they had heard were true. From the time when he had his first laboratory in his home until after he moved into his new building on Fourth East, the number of curiosity seekers grew into the hundreds. He performed experiments with the Radiant Energy Device while onlookers watched to see if it really worked.

A few salient facts are evident in the patent business:

1. That under the law to give a demonstration in order to satisfy an individual as to whether a discovery is valid, is not sufficient justification to protect the inventor from losing his invention under Section 4886, U.S. Patent Codes.

2. That curiosity seekers request demonstrations to satisfy their own pleasure and convenience when they do not intend to assist in the development of the invention.

3. That there are those individuals who would, if they had the chance, sap another’s brains and talents and even appropriate from him his very brainchild for their own use.

K.K. Steffenson, a local attorney, wrote Henry in 1939:

“Your request for a statement from me concerning certain matters pertaining to your invention will be very difficult to comply with, due primarily to the fact, that I am limited in library facilities. In order to even partially advise you, it would be necessary to make a thorough study of all the cases that pertain to your special problem. This is impossible for me to do as there is no library at my disposal that has these cases in it. However, I am suggesting certain principles that you must follow if you are to be assured that your patent rights will remain protected.

“Generally speaking, patent protection depends upon the facts and circumstances surrounding your particular case. There is no case that will be exactly on all fours with your case. All cases that can be cited will only be analogous to yours, but they will not be your case. Each patent case depends upon its special facts and circumstances. All a judge can do is to apply the general rules and regulations of the patent statute and controlling cases to the facts and circumstances presented by your evidence, and this is also by analogy and if the facts and circumstances are understood when presented to a court by the judge as you want them to be, your position will be sustained, but if he doesn’t so understand them, then what. Until your particular case has been presented to a court of last resort, no man living can tell you just what a court will decide in your particular case. He can only make a guess and his guess will be just about as right as the chances of getting heads when you toss a coin. All this’ does not mean that a good patent lawyer can’t give you sound advice, based on decided cases, but such a lawyer or nobody else can predict, with any degree of certainty, the legal effects of all the facts and circumstances surrounding your case. Remember this, that until your case has been presented in a court of last. resort and there fully decided there will always be present the big “IF”.

“Excluding yourself, I feel that I am as well acquainted with the facts and circumstances of your case as anyone. I feel that “if’ a court could see and understand the facts and circumstances surrounding your case as you and I see and understand them the law and his decision will and would sustain and protect your patent rights, but there is always this “IF”.

“Now, Henry, you can’t afford to take any or too many chances with this kind of an “IF”. You will find plenty of friends, and I mean real friends, who may try honestly to diminish the size of this “IF”. But remember all the argument in the world does not and cannot diminish the uncertainty of this “IF”. It will never disappear until, as I have said, a court of last resort has decided your case. Your problem, as well as mine, is to be so careful and certain of our grounds that there can never be any catch, if ever you have to go in court.

“Now, if the foregoing contains good sound advice, and I think it does, just how far should I go in the citation of cases in support of any experiments of disclosure that you are asked to make to certain people, who want or even may have demonstrations and other disclosures, before they are willing to assist you financially? Here again you can be advised to advantage by a sound and honest patent lawyer. There is a large body of patent law that is pretty well established in this country which have interpreted the patent statutes on certain matters and if this advice be wisely followed you can do a lot of things that will not involve your patent safety. But to know just how far you may go with full safety is entirely another matter. It is the answer to this question of ‘How far you can go?’ that you desire advice from me.

“You may as well know it, to start with, that I will not pit my judgment as to what the patent law will permit you to do with safety, nor will I attempt to interpret the decided cases to the extent of saying, that you can do thus and so and that you can’t do this and that. Your case involves far too many angles for me to even speculate as to what final form the law will take if you give demonstrations of any phase of it, if you ever come into court. Your patent procedure has not yet been definitely determined. You have an application pending concerning some phase of your invention, some parts of a completed invention are not in the patent office. Other phases of the invention are not in the patent office. Other phases of the invention are just in the experimental stage and other elements of the invention have not been fully established through standardization. Any one of these elements and possibly many others, as you proceed with standardization, may have to be changed here and modified there and so ad infinitum, before you will be able to tell with complete certainty, just what will be the final invention and the exact relationship between all the elements of your invention. Now I would not be at all smart, should I try to tell you just what you can do or can’t do. In fact you don’t know but what some purported ‘experts’, in whom the court has a great deal of confidence may try to make ‘black’ appear ‘white’ and that if you get too close to the line of public use or public disclosure, they may make a skillful attempt to pull you across this line, by interpretations of certain facts and circumstances that would influence the court sufficiently to decide your case against you. This patent safety depends entirely in staying far enough behind the line that such a situation could not possibly arise.

“Again, suppose that standardization should establish that your invention is fully completed now and you go on disclosing the invention by demonstrations and other means for more than two years from now, on the assumption that the disclosures are for experimental purposes. Could you get valid patent after two years, if some experts could establish a good presumption that you know that your invention was perfected. Of course, unless some other application for patent was in the patent office in the interim, this wouldn’t make any difference. But how are you going to know what applications are in the patent office until your patent has been issued. Suppose again that you make disclosure sufficiently, in your demonstrations, to permit a clever party to get the idea behind your invention, what’s going to stop him from revealing to the third party sufficient of this invention to enable that third party to file a patent so as to create an interference with matters (that you are not in the patent office as yet.) And then attempting to prove that you knew these matters for more than two years prior to your filing an application covering them. It’s simple patent law that you couldn’t get a patent if you lost the interference suit. Maybe this other party couldn’t either. How can you foretell what evidence may be adduced at such a hearing?

“It is useless for me to attempt to enumerate all of the possible things that could occur, and until you are solidly in the patent office on your complete invention, with all its elements, phases, characteristics and parts, my advice to you is to be very careful as to how far you use demonstrations and disclosures in dealing with anybody.

“It is easy to cite cases that hold that experimental use is never a public use within the meaning of statute, but there is a question of fact as to what facts and circumstances would be construed experimental use and what as public use. These matters are questions of fact for some third party to determine, which offer patent lawyers the opportunity to exercise their skill in interpreting the question of what is experimental use and what constitutes public use. You see, Henry, there is never any certainty because all depends upon “IF”. If you can establish beyond question an experimental use, of course the law is plain. But there always exists the right to interpret evidence. And the other side has a right to try and establish public use, with the same set of facts, if they do the law is plain. But there is always the “IF”.

“Your case is further complicated by the fact that you want protection under foreign patent laws, who knows what the foreign patent law is and what foreign courts will do? We don’t even know what the patent law in some foreign countries is, let alone what it will be tomorrow. If you want to protect your foreign rights you know that you can’t make a disclosure of any kind that could be construed to be a publication in this country. Suppose for instance, that some party, to whom you make a demonstration and explain the operation of your invention and its main characteristics, and reveal some of the elements of the invention, such a party takes a notion to write up all of these disclosures and if this were published in a magazine or in a trade journal, and you never see it. Then what may happen? There would be an issue of fact raised, and that if you came into court, could be construed by some clever attorney to be a publication or a dedication to a public use. Then again we would have this monster “IF” again. As a matter of fact these things would never constitute a publication or a public dedication but we don’t know that construction can be made by certain facts until after they have been tried out and determined by a court of last resort. It is these things that you have got to avoid, if you want to feel that you are fully protected. Your invention has any number of a hundred possibilities that do not depend upon the law, but depend upon how facts can be interpreted or misinterpreted by clever attorneys and how these interpretations will be construed by a court.

“Now, Henry I realize as fully as anyone that in order to get your invention financed you will possibly have to take certain chances in order to convince an investing type of mind or minds of the validity of your claims. And I realize that you want legal advice that you can rely on that will protect your invention from every possible angle. But I could cite you cases, that would possibly fill a volume, on what the law is but that isn’t the point. The point is that constructions can be placed upon the facts and circumstances surrounding what you do so as to correctly fit into a case that is in your favor. I am fully convinced that I could cite you all the cases in the law that have been decided but they will all be based upon the facts and circumstances of some other invention and not of your case.

“In my humble judgment, I do not see much advantage in citing you a lot of cases. Your whole trouble, if you ever have any, is going to be with human nature, and not so much with what the patent law is or is not. You could be the cleverest lawyer in the world, and you will still have to contend with the interpretation of facts and human nature. You may know patent law from A to Z and you will still be confronted with the constructions to be placed upon the facts and circumstances of your particular case and the application by a court of the law applicable to these facts and circumstances. Nobody is able, before hand, to give you absolute certain and reliable advice on these matters.

“The only honest advice, and I think helpful advice that I can give you is that you get an application in the patent office covering as fully as you are prepared to go, every known phase and element of your invention protected by the strongest claims that can be presented at this time. And until this is done you’re not safe either in this country or foreign countries.

“From the foregoing you can see how useless it would be for me to cite you a lot of cases on what constitutes ‘public use’, ‘publication’ and ‘on sale’ and all other matters involved. For after every case I cited you, I would have to attach a caution: ‘Now IF what you have done or do or intend to do, can be construed not to be a public use, a publication, or on sale and so forth, you can do so, but you must be sure that no other construction of what you do or have done or intend to do, can possibly be given any other construction.’ Or, it may be put this way, ‘If you are positively certain that you can convince any court, in spite of all what anybody else may say or do, that your disclosures, through demonstrations and otherwise, were purely experimental use, then go ahead and do so and so.’ Or, `If the contracts you have, may have entered in and/or intend to enter into, the photographs sent out and so on, do not amount to putting your invention on sale, then go ahead and make contracts and publish photographs.’ (Of course I feel that this hasn’t been done as yet.) I could go through the whole category of the patent law in this way and cite cases but it would certainly be of no value or help to you.

“I realize, Henry, that this is not what you want but after studying your question for several days, I sincerely feel, that if I just tried to convince you or anyone else that the patent laws meant so and so, and cite cases substantiating the same, I would not only have misled you but deceived myself. I am thoroughly convinced that what I have said above is the most definite information that I can give you that will really be of any value. Now if you find the foregoing to be useless, you are at perfect liberty to treat it so, and if you still want cases I can furnish them to you within a reasonable length of time.

“I don’t suppose there will be a patent lawyer or business man but what would laugh at the foregoing but nevertheless I am willing to stand firm on the advice contained in the foregoing and thoroughly believe that it is the only advice that you can follow with any degree of safety.”

As a result of the advice received by his lawyers, Henry Moray introduced to Cosray Research Institute the policy of no demonstrations. He did not desire to become involved in litigation. He felt that the device had been tested sufficiently and that further public testing was impossible or at least dangerous, and would only end up in litigation. His stand was further confirmed by Sam E. Whitaker, Assistant Attorney General of the United States, in a letter he wrote February 7, 1939, at the request of an administrator of the REA, John M. Carmody. Furthermore, demonstrations became impossible after the last detector material burned out, although Henry Moray did not wish to emphasize this point. This could have been a psychological defense that he himself had erected because of his financial, inability to re-build his device.

In an attempt to verify his position in the patent office, Henry Moray wrote a letter, April 10, 1954, requesting copies of his applications and asking for any subsequent applications that may have been filed on this subject. The patent office replied that the patent applications had been destroyed because the office was under the impression that the applications were abandoned. However, I have found since then that this information was incorrect; and from what information I have been able to ascertain, the truth is that these patent applications have all “disappeared” from the patent office.

From time to time Henry Moray obtained information from various people that patent examiners and clerks can have conflicting interests. In fact, according to one certificate I have, the person claims that he was paid to keep large corporations informed of patent applications that would be of interest to that corporation.

Similar information was forwarded by Mr. John Y. Smith from San Francisco, California on April 17,1931, to Murray O. Hayes in Salt Lake City. He spoke of a group of prospective investors that Mr. Smith hoped would contribute to the efforts of the Moray Products Company and said, “One of the parties interested formerly held a confidential position with the General Electric and later with the Westinghouse Co. He nearly took my breath when I told him regarding Moray’s fears that the proposition might be stolen from the patent office. He said it will just as sure as you send it there, that the U.S. Patent office is `honey combed’ with employees of the General Electric, General Motors, and other large Co’s. That he had helped steal valuable data from the patent office as the request of the above co’s. He said you were crazy if you sent a description of this device to Washington before you had plenty of money to follow it through and influence enough to prevent a theft. So I confess after hearing him that I was in error scoffing at the fears of Moray.”

It has been said that the first thing an inventor should do is apply for his patent and the last thing he wants is have it granted! Once granted, it becomes public, and for a small fee anyone can get a copy. An application for a patent, after all, only establishes date of discovery.