This Week in Intellectual Property History

On November 24, 1874, the U.S. Patent Office issued U. S. Patent No. 157,124 entitled, “Improvement in Wire Fences” to Joseph F. Glidden of DeKalb. Ill.  The patent disclosed the creation of what came to be referred to as “barbed wire.”

Despite being considered a revolutionary invention for its time as a means for cattle farmers to protect their livestock, the ‘124 patent (or “the Barbed Wire Patent”) was at the core of one of the most famous (or infamous) U.S. Supreme Court patent decisions of all time.

In 1887, the assignee of the patent (Washburn & Moen Mfg. Co.) initiated a suit for patent infringement against the Beat-Em-All Barb-Wire Co.  The defendant asserted that the patent was invalid because it lacked novelty and had been in use for many years before Mr. Glidden filed his patent application.

At trial, twenty-four witnesses testified on behalf of the accused infringer and stated that they had seen a barbed wire fence in use approximately 14 years before Glidden filed his application.  The 24 witnesses testified that they had seen barbed-wire exhibited by a man named Morley at an 1858 or 1859 county fair at Delhi in Delaware County, Iowa.  The defendant asserted that this fact provided sufficient evidence of prior use by a third party so that Glidden’s patent should be held invalid.

The district court found that it was unlikely that all twenty-four witnesses were lying and declared the patent invalid stating that “[N]ot only is there an entire lack of evidence to show that such a nefarious plan had been undertaken, but no motive can be conceived of, that would induce so large a number of well-known persons to engage in such a conspiracy.”).

However, the case was appealed and made its way up to the U.S. Supreme Court.  Despite the testimony of the twenty-four witnesses and the credibility determinations made by the district court, the Supreme Court in its 1892 decision reversed the district court’s invalidity finding, noting:

“[T]he very fact . . . that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of witnesses who imagined they had made similar discoveries long before the patentee had claimed to have invented his device, has tended  to throw a certain amount of discredit upon all that class of evidence, and to demand that it be subjected to the closest scrutiny.”

The result of the decision was that the use of oral testimony to invalidate a patent without any corroborating documentation became extremely suspect.  Later court decisions used the Barbed-Wire Patent case as precedent to develop a list of factors for evaluating the credibility of oral statements made by witnesses to establish prior use or prior invention of a patent.  In essence, today, a person can be found guilty of committing murder based solely upon eye-witness testimony but it is virtually impossible for eye-witness testimony alone to be sufficient to invalidate a patent.

Make some Intellectual Property History this week!

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