The Portland daily press., 1886-01-15
THE BELL TELEPHONE.
Secretary Lamar's Letter to the
Attorney General.
He Thinks the Suits Should be
Brought in the Name of the
United States.

WASHINGTON, Jan. 14.-Secretary Lamar
this afternoon sent to Acting Attorney Gen
eral Goode the following letter containing
his conclusions upon the proofs and argu-
ments submitted touching the validity of the
Bell telephone patent in March 7, 1876:
Sir,-I have under consideration the papers re-
ferred to me from the Department of Justice
touching the Bell telephone patents. Desiring to
be as fully advised as possible have called to my
aid the assistant secretaries ofthe department and
thesCommissioner of Patents, andin furtherance OF
the same desire have invited parties who filed
their petitions with you, also parties interested in
the patent which had been assailed to appear be-
fore me with such proofs and arguments as they
might desire to submit. vOluminOus record ana
prolonged and exhaustive discussion resulted.
This record embracing all the papers sent to me
mentS of counsel, transmit herewith The petit
TONERS, upon the grounds and for the reasons set
forth in their petitions ask the department of JUS
tice to cause or allow appropriate legal proceed
ngs to be instituted in the proper court by the
government, or in the name OF the government, on
their relation to yacate and annul the Bell tele-
phone patent of the 7th of March, 1876 in the pc
titions Specified You have asked me to com
municate any information on the subject to be
gathered from the files of this department and to
suggest generally my views as to the action which
should be taken by your department In the prem
ses. AS the patent office appertans to that depart
ment. have been especially deSiriOus to under
stand fully all that is alleged as ground for relief
in these petitions in regard to what was done in
that office, and believe can assure you that all
the information on that subject to be gathered
from the files Of the office is embodied in the rec
ord herewith transmitted. | also send yl+le you the
Secretaries Muldrow and jerks respec-
lively. In order ito know what
department upon the petitions, have heard oral
presentations of the case and considered 1t again
upon proof and able arguments of counsel as they
appear in private. thought my own eonsidera-
tfOn shonld be directed to two questions, and to
meet these questions requested that the argu-
ment of counsel should be shaped: They are:
Ftrsf- Hacf 10 pOV InStIfnfn
Second-ff it has such right should the pro-
ceedngs invited in the respective petition or eth
er of them be instituted.
The first Of these questions is specially within
the cogniZance of your department as it has the
affirmative answer of numerous precedentS in that
department and has received like affirmative an
sWer from the courts of the United States. IT it
had not been thus authoritatively settled sh ould
in principle have reached the same conclusion.
The government Is asked to institute judicial In
quiry as to the patent OF the Bell Telephone Co..
upon the allegation that such patent was obtained
by fraud of the patentees by collusion and
by nadvertance and mistake of the executive
officers of the government If these allegations
be true great wrong to the whole people result
in name and is sustained by the power Of the
United States. To say the government inficts
wrong would seem to imply that somewhere
among its resources the government would have
power to redress it. The argument against the
prayer of the petitioners did not controvert that
the government has provided remedy which ex-
cludeS all other smodes and therefore precludes
further governmental actions.
by d TtFlcW VI bnc pdboHt dCto VI OOHSICoS IL 10
sought to be shown that under the law of 1890,
somewhat modified in 1898, citizen was allowed
to avail himself of legal objections to patent in
defence of infringement suits and under certain
circumstances the court was allowed to institute
scire dcids inquiry into the validity of patents
and upon causes found to Vacate them. By the
material to this inquiry, 1t is claimed that the
patent Law. was changed by the establishment OF
investigating the claims of applicants and
clothed with power formerly exercised by
any two Cabinet ofIicers) to issue patents, and
that from this law the sc3re fdctds section, and so
much of the defence section as allowed the court
to vacate a defeared patent, were omitted. Hence
it is argued that by the act of 1886 all power to
vacate patent was surrendered and al remedy
when the patent had wrongfully issued, was limit
ed to reliance upon the faults or vices OF pat
ent in defence of actions for infringement.
Without the aid Of the decisions made by the
courts it would seem to be apparent that the only
was to deprive the courts of power to vacate
patents as incident to private suits or part of
judicial determination of private controversies.
The power of the government to yacate patents
wrongfully issued under its seal, was affirmed in
the very act of entrusting its exercise to the
courts III private litigation The logical inference
from the revocation of that trust is not total
surrender or abnegation of power, but an inten-
tion.to keep it under immediate governmental
occasion for its exercise, and the legislation which
allowed the court to exercise 1t defines what cir
occason and the changes made by the law Of 1885
only seem to indicate that the existence OF an oc-
casiOn shall be brought to the notice of the proper
department of the government, and the exercise
of the power invoked. Surely if the power to
vacate patent wrongfully issued existed at all
there need not be a statute to provide a mode OF
its exercise. When mode exists without the
statute, or patent for land, may for good cause
in proper case be vacated at the suit of the
government statute and there is no difference
as to the principle here involved between a
patent for land and patent for an invention.
The case against the Bell Company may be thus
summarized:
First The protest was procured by fraud of
the patentee through colluson or mistake of the
officers of the patent office and in violation of the
rights of the caveator, named Elisha Gray
Second. The invention patented was not pa
tentable because already public.