Sunday, September 28, 2014

Chapmans vs Waterman: Safety pen patents

One of the disputes brought out in the Chapmans vs Waterman case (background here) was over claimed infringements by Waterman of safety pen patents held by A. A. Waterman/Modern Pen. The main discussion appears in a letter from Waterman dated May 21, 1908, addressed to Alexander S. Bacon, Modern Pen's lawyer, and entered into evidence as Plaintiff's Exhibit 25 (pp. 496ff). The letter recounts Waterman's negotiations to purchase Modern Pen, including its patents (though in the trial, the focus seems to have been put on Waterman's attempts from 1907-08 to buy the A. A. Waterman trade name; p. 122-24). According to the Waterman letter, the sale of Modern was a done deal, awaiting only "formal corporate authorization". Counting on this pending acquisition of the Modern patents, Waterman "began the manufacture of a safety fountain pen which is the one of which we assume you complain." When this manufacture began is a bit unclear. Bacon had sent letters on April 29 and May 19, 1908 protesting the infringement, but how long did it take for Modern to learn of the new safeties and to respond? The Waterman letter states that the expected sale of Modern was still pending when Bacon's letter of April 29 was received, but the deal afterwards fell through. The letter then avows (p. 497):
As soon as we learned that these negotiations of sale had been broken off, we forthwith entirely discontinued the manufacture and sale of the safety fountain pen as then constructed and of which we assume you complain. Of the safety fountain pens of which we assume you complain only a few have been sold, probably less than a dozen.
Considering the letter's purpose, this improbably low number should be taken with a grain of salt. Admitting no fault, the letter goes on in good legal style to name and deny the validity of the patents allegedly infringed (523234 Peck and O'Meara, July 17, 1894; 551895 Horton and Peck, December 25, 1895; 700909 Frazer, May 27, 1902), and to state that Waterman's abandonment of this original safety design was "merely to avoid litigation and the trouble and expense incident thereto." The letter then concludes:
We are now using for our safety fountain pen a construction or structure which our predecessors in business used more than twenty years ago, and which has been commonly and continuously used for pencils and fountain pens since 1852, and of which we assume you claim no monopoly, If you desire, we would be pleased to submit to you a sample of the safety fountain pen as we are now making and selling the same. We wish to repeat that we have entirely discontinued making and selling fountain pens of the structure of which we assume you complain, and that we do this merely to avoid litigation and not because we recognize the validity of the patents you claim to be infringed, or that the pen as made by us did actually infringe any of these patents.
The generally accepted chronology for Waterman safeties posits that the earliest examples were those in which the nib turned as it extended and retracted, the tracks cut into the interior of the barrel being helical, rather than straight. Later safeties used a straight track and a helically-slotted driving tube (for illustrations, see our Waterman Safeties Pen Profile). The arrangement of the earlier safeties would have been to get around the Peck and O'Meara patent. The Waterman letter adds another twist to the story, so to speak. The helical-track safeties were not Waterman's first, after all. For while the standard straight-track pens did follow the helical-track pens, it seems they also -- albeit briefly -- preceded them.

If that "construction or structure which our predecessors in business used more than twenty years ago, and which has been commonly and continuously used for pencils and fountain pens since 1852" is to be identified with the straight-track safeties, how is that particular passage to be read? The reference to "our predecessors in business" is particularly opaque, implying as it does that Waterman itself used this mechanism in its earlier days -- and inasmuch as Waterman evidently didn't, must be interpreted as a deliberately misleading way of saying that other, earlier, and unrelated companies did. The reference to 1852 appears to invoke the mechanism described in John Mabie's US patent 11762, application date unknown, but issued in 1854. Others had long used a basic retracting or propelling mechanism consisting of a carrier riding in a longitudinally-slotted tube, riding in turn inside a helically-slotted tube, the carrier having a pin engaging both slots, by which the carrier was driven when one tube was twisted and the other held fixed. Mabie's patent added two improvements: a pin that went all the way through, engaging the outer tube's track on both sides; and helical slots in both tubes, cut in opposite directions. The Waterman letter undoubtedly refers to the first improvement, applied to the older form of retracting mechanism, rather than to the second, which is unknown in Waterman safeties of any era. Waterman's claim that this mechanism had been in use for decades for fountain pens appears to be a complete fabrication.

The limitations of advertisements as evidence are once again highlighted here. Previously, our earliest notice of Waterman safety production came in advertisements and trade journal mentions at the end of July 1908. We now know that Waterman began making safeties no later than April, and had switched to a non-infringing design in May.

ADDENDUM: In case you were wondering how A. A. Waterman/Modern Pen ended up with all the key retracting-nib safety pen patents, see Geyer's Stationer, vol. 31, Apr 4, 1901, p. 35, which reports on Frazer & Geyer's purchase of the bankrupt Horton Pen Company's plant, machinery, and patents.

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