The Selden Case

By J. HAROLD BYERS

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 most "notorious" tactic for which Selden has re- ceived unremitting criticism, was the sixteen year sojourn of the application in the Patent Office.(1,2) While "the world caught up to and passed"(3) him Selden, by a series of adroit delays, kept his application pending in the Office. Concerning the fact there is no question. But when it is related that during this period Selden kept his invention secret we get into mythology. Selden aggressively disclosed his invention to others while his application was pending in the Office. Also it has been said that Selden taught the art nothing. The fact is that the. art ignored what he had to teach, preferring to learn from the European inventors, for it was not until the German and French automobile manufacturers by ardu- ous research, finally proved the merits of the gasoline automobile, that the American manufacturers began to seriously consider the gasoline car as a competitor of the favored steam and electric vehicles. Finally there is the story that has enjoyed wide circulation to the effect that the Selden patent was held invalid. The fact is that the claims were held valid but not infringed.

In the latter part of the 1870's, George B. Selden, of Rochester, N. Y., patent attorney and inventor, after study and experiment, came to the conclusion that the in- ternal combustion engine was the solution to the problem of mechanical road transportation. With this in mind he 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 on an internal combustion engine powered road vehicle. This was nearly five years prior to Benz, Daimler, and the other well known European automobile pioneers, and substantially twenty years before the beginning of the American gasoline automobile industry. All of the at- tempts prior to Selden had been crude efforts to drive vehicles with stationary engines, and all were failures. Selden achieved success by introducing radical changes in a known form of engine which greatly increased the power output per unit weight, thus adapting the motor to the operation of a self-propelled vehicle.

A number of events conspired to direct Selden's at- tention to the problem of horseless transportation. It would be impossible to recite them all in limited space, but the following incident may be briefly recounted. With its near-disastrous consequences, it is not recommended as a desirable way to stimulate one's inventiveness, but it undoubtedly helped focus young Selden's mind on the shortcomings of that noble but sometimes uncooperative animal, the horse.

During the Civil War, Selden joined the Sixth United States Cavalry. It appears that he entered the service by choice being a lover of fine horses, but soon discovered that no lover of fine horses should be in the Union Cav- alry. He was given a horse to ride that was vindictive and dangerous. He asked for a new mount but was told that none was to be had, there being a shortage of good horseflesh.

Whenever Selden approached his steed she would lash out at him, and failing to dig a hoof in his ribs, would lapse into sullenness interspersed with desultory bitings and runnings away. What with this animal, Selden had little time to worry about Rebel bullets. Finally horse and rider were involved in a serious ac- cident. While carrying Selden the creature ran head- long into a tree and was killed. Selden saw what was coming and just before the crash, bailed out. His quick action saved him.(4)

After the war Selden studied horseless locomotion. At that time there was no such thing as a horseless carriage. There had appeared on the roads of England certain passenger carrying highway locomotives which were ponderous affairs, driven by -steam and serviced by a crew of engineers. These horse frighteners had reached the zenith of their popularity around 1824 finally being legislated out of existence. They were the descendants of Cugnot's steam carriage, built in France in 1769 for military purposes, and of Trevethick's steam carriage built in England in 1802.

It was Selden's idea to construct a light weight self- propelled vehicle with a large cruising radius, which could be operated by one man, not a skilled engineer. He began his experiments with'a view to using steam power but soon came to the conclusion that the massive engines of that day were ill adapted to the purpose. He turned his attention to the internal combustion engine. At that time an internal combusion engine which had been invented by an American, Brayton,(5) was receiving wide and favorable attention. Selden studied this machine.

Again he came reluctantly to the conclusion that the engine was not suitable, since it was, like the steam engine of the day, bulky and heavy with small power output.' He saw, however, a possibility of increasing its efficiency.

It is noteworthy that the Brayton engine was a forerunner of the Diesel engine.(6) The Brayton was not a spark-fired explosion engine such as is commonly used on automobiles today, but was a constant-pressure type engine in which the fuel was injected and consumed slowly during the power stroke.

It does not appear that Selden knew of the trials in which Brayton and others had attempted to drive an omnibus with this engine.

"The Brayton engine was alone used upon an omnibus in 1878. The weight of the testimony is that the omnibus was run by the engine a very short distance, but the experiment cannot be regarded as having been either mechanically or commercially successful. This use will not be considered as in the antecedent art. " (7)

Writing to George Fritz, the carpenter who built a body for such an omnibus, James Fawcett, who with his -father, George Fawcett, struggled to make the vehicle run, had this to say:

"I am very sorry to say that the car did not run, the en- gine not being able to move it.

"You ask me to explain what I mean by failure. I mean that Mr. B's plan to run the car with that 'hobby' of his, 'fluid cir- culation,' was a total failure, notwithstanding his contradiction; we, at his advice abandoned it and applied chains, but the en- gine would not move the car with them, would not even slip the wheels on wet ground, but would come to a standstill, so we concluded to give it up.

"I would like you to get me some information in regard to the experiment he made in Prov. some years ago, how much the engine did, how he succeeded in keeping it cool, and what grade he went up, and, in fact, everything connected with it, if it would not be too much trouble for you. I, goose that I was, put every faith in what the B's and their friends said and did not even en- quire from outside parties.

I remain, Your friend Jim."

Selden set about modifying the Brayton engine, incor- porating radical and important changes some of which are common in the automobile today.

"When he was ready to file his application, he had completed and experimentally operated one cylinder of a three-cylinder engine of the general type Brayton had patented in 1872 and 1874. He intentionally built a plurality of cylinders, to obviate or minimize the necessity for a flywheel. He produced an inclosed crank case (which immediately reduced weight to an enormous extent) and used a small piston with a short stroke (which made possible the speed that would compensate for the loss of piston head area). This engine, with allowance for ad- juncts weighed less than 200 pounds per brake horsepower, as compared with over 800 pounds in the lightest form of Brayton's, and is capable of over 500 revolutions per minute, as against less than 250 by any type of gas engine known, built, or sug- gested in 1879. These I find to be the facts regarding the en- gine built by Selden before application filed."(8)

This work Selden pursued with "unremitting ardor..... interrupted by pecuniary embarrassments." When at last the new engine-the first automotive internal combustion engine practically suitable for the purpose- was finished, and ran successfully, Selden turned to his mechanic and said: "We have struck a new power."

In America Selden was alone in this work. But in Europe the spirit of invention was stirring other minds. Imaginative Frenchmen had drawn pictures of vehicles theoretically driven by means of internal combustion en- gines. There was however, no reliable evidence that they ran, and there was strong reason for believing that if their inventors ever actually tried them, they had proved wholly inoperative.

There was however, an internal combustion engine in- vented by a German, Dr. Otto. This engine, known as the "Otto Silent" operated on a different principle from the Brayton. The Otto was an explosion-type, constant volume engine, essentially identical with the type that is used on modern cars. But it was a stationary engine not designed or then intended to drive a car and compared with Selden's engine, a feeble behemoth. It weighed a thousand pounds per horsepower.

Selden filed in 1879. The automobile that he disclosed had a clutch, foot-brake, muffler, front-wheel drive, and power shaft arranged to run faster than the propelling wheel. The engine was a six cylinder unit, three power cylinders and three compression, and was provided with a compressed air tank. The air was admitted to the power cylinders admixed with liquid hydrocarbon fuel, which burned according to the Brayton principle.

The following are excerpts from the specification: "The object of my invention is 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.

"The difficulties heretofore encountered in the application of steam to common roads are the great weight of the boiler, engine, water, and water-tanks, the complicated apparatus necessary to adapt the machine to the roughness of the roads which it must traverse, the necessity of the attendance of a skilled engineer to prevent accidents, and the unsightly appearance of the locomo- tives built on this plan. I have succeeded in overcoming these difficulties by the construction of a road-locomotive propelled by a liquid-hydrocarbon engine of the compression type, of a design which permits it to be operated in connection with the running- gear, so that the full carrying capacity of the body of the vehicle can be utilized for the transport of persons or goods, and which, by dispensing with skilled attendance and with steam-boilers, water, water-tanks, coal, and coal-bunkers, very largely reduces the weight of the machine in proportion to the power produced and enables me, while employing the most condensed type of fuel, to produce a power road-wagon which differs but little in appearance from and is not materially heavier than the carriages in common use, is capable of being managed by persons of ordi- nary skill at a minimum of trouble and expense, and which pos- sesses sufficient power to overcome any usual inclination."

This was a remarkable vision of the vehicle that was destined to revolutionize transportation. The objects which Selden outlined in 1879 have scarcely changed to the present day.

Selden specified that "Any form of liquid-hydrocarbon engine of the compression type may be employed in my improved road locomotive." One of his claims which later became involved in litigation was as follows.

1. The combination with a road-locomotive, provided with suitable running gear including a propelling wheel and steering mechanism, of a liquid-hydrocarbon gas engine of the compres- sion type, comprising one or more power cylinders, a suitable liquid-fuel receptacle, a power shaft connected with and ar- ranged to run faster than the propelling wheel, an intermediate clutch or disconnecting device and a suitable carriage body adapted to the conveyance of persons or goods, substantially as described. "(9)

In order to develop the invention and produce the auto- mobile commercially it was necessary to obtain capital. This Selden endeavored to do. He approached a prominent and wealthy manufacturer and tried to interest him into putting $5000 into the manufacture of a full sized model. The manufacturer told Selden he was crazy. Selden retorted in similar vein and the upshot was that relations were broken. In the 80's Selden interested six different parties. One of these men died suddenly;- an- other went into bankruptcy; another became ill; and still another met with an accident. The remainder changed their minds. It seemed impossible to go on. Then there arose a widespread belief that the electric storage battery would solve the problem of horseless transportation.(10) But Selden remained convinced that he was on the right track. He was sure that some day the art would come around to his idea, and when they did, he had no intention of having his patent expire without receiving any material reward. Accordingly he decided to defer issue.

Selden prosecuted his own application before the Patent Office. The examiner could not find much in the way of art. He uncovered a British patent (Pinkus, British 8,207 of 1839) for a tramcar supposedly driven by a non- compression engine which consumed street gas. For his trouble the examiner later was criticized by Judge Hough of the District Court as follows:

"Pinkus was speaking of tramcars, and the use of such a pub- lication against Selden by the Patent Office was, to say the least, not very intelligent."

As a matter of fact the examiner dropped the reference when Selden pointed out that an enormous saving in bulk and weight was achieved by using a liquid hydrocarbon fuel instead of street gas, and eventually decided to allow the case. But Selden had other plans. He amended in such a way as to keep the application pending, always using for his response the full statutory period, which then was two years."

Meanwhile what Selden had anticipated was beginning to happen. Not here however, but in Europe engineers bent intensive efforts to solve the problem, and some years after Selden had filed his application they turned to the internal combustion engine. Benz and Daimler experimented in Germany with the Otto engine. French manufacturers, aroused to the possibilities of mechanical road transportation invested huge sums in research. Public interest was captured by the automobile races in which gasoline automobiles were matched against steam vehicles. Levassor served the latter a crushing defeat. Ford and Duryea had built some cars in America. Fin- ally when in 1895 the industry was beginning to stir, Sel- den's embalmed application came to life. The report of the Commissioner of Patents contained the following statement:

"Selden, in 1895, received a patent, November fifth, num- ber 549,160, which may be considered the pioneer invention in the application of the compression gas engine to road or horseless carriage use. "(12)

November 4, 1899 Selden closed a contract with the Columbia and Electric Vehicle Company which had a fac- tory in Hartford, Connecticut. Herman F. Cuntz, engi- neer and patent attorney was the first to recognize the fundamental importance of Selden's claims. George H. Day, of the company, was the first manufacturer to be- come interested. March 5, 1903, the Association of Li- censed Automobile Manufacturers was formed, with ten members, including the Electric Vehicle Company and the Winton Company. Day was appointed general manager. The licensed companies agreed to pay a royalty of 1114% of the retail list price on all cars sold. This later was cut to 1% and finally to 4/5 of 1%.

The Association published annual handbooks containing illustrations of various makes of cars produced by manufacturers who were members of the Association. The following statement is taken from the handbook for 1908:

"In the early seventies, George B. Selden experimented with road locomotion, finally building an internal combustion engine until his success resulted in the application for a patent on May 8, 1879. This was about five years before Benz and Daim- ler operated their petrol vehicles in Germany. Selden's patent No. 549,160 was granted by the United States Patent Office. November 5, 1895, and in it were granted the exclusive rights for a period of 17 years, to manufacture, sell and use his invention. The patent covers broadly all gasoline automobiles which are accepted as commercially practical...

"The leading manufacturers and importers, after a thorough investigation, resulting in their conviction of its validity, have protected themselves, their dealers and the users of their product by securing a license under the patent. These licensees then organized the Association of Licensed Automobile Manufactur- ers to protect their rights and that of their dealers and users under this patent and under the four hundred other patents in the control of its members as against those who used patented automobile improvements without regard to the rights of others. There is no combination among the manufacturers and importers and every one of them conducts his business entirely independent of the others, and among them all a free competition is main- tained. The only bond between the companies represented here- in is their recognition of this patent and the conviction that such recognition is a guarantee that the purchasers of their machines are guaranteed protection from the liability of suits resulting from the unlicensed use of the rights of the pioneer."(13)

 By virtue of the Selden patent the A. L. A. M. rose to affluence. As the production of cars multiplied royal- ties began to pour in at a rate that was nothing short of embarrassing. At its height the A. L. A. M. numbered 87% of the manufacturers among its paying members, who were building over 90% of the American gasoline automobiles. In 1910 licensees included Buick, Cadillac, Franklin, Hudson, Hupmobile, Mack Truck, Oldsmobile, Packard, Studebaker, and scores of other manufacturers. Some of the royalties were paid back as dividends to the licensees. All told approximately $2,000,000 were col- lected of which Selden received something like one tenth. Outside the Association was a smaller group of manu- facturers known as the Independents and the autonomist Henry Ford.

October 21, 1903, suit was filed against Ford and C. A. Duerr and Company, Ford agents, at the instance of the A. L. A. M. Later, John Wanamaker, Panhard and Le- vassor and others were joined as defendants.

The District Court, S. D. New York, sustained the patent (14) holding claims 1, 2 and 5 valid and infringed. Judge Hough took the position that Selden had made a pioneer invention and that the claims covered a broad range of equivalents.

The following are excerpts from the decision:

"What was the state of the art when Selden filed his application in 1879? Or to use a phrase frequently occurring in the testimony and exhibits, what was known of the 'horseless carriage' industry in 1879, either at home or abroad?

"The answer is plain. There was no such industry; the art existed only in talk and hope. No self-propelled vehicle with a considerable radius of action over highways, capable of man- agement by a single driver, not a skilled engineer, had ever been built. There is no competent and persuasive evidence that any experiment had ever moved one hundred feet . . . Steam had dominated the world of mechanic art."

The defense contended that Savalle (Fr. 77,644 of 1867) was anticipatory. This patent stated that motors operating either by the explosion of gas or by air forced over a metallic surface, heated by coal ... apply perfectly when it con- cerns the traction of omnibuses or other large vehicles of this kind; but when it is necessary to apply this kind of locomotion to light carriages, only carrying one to six persons, or to drive a velocipede, these means become impracticabie by the large space they require. "

Judge Hough considered even the operation of omni- buses to exist solely in Savalle 's imagination.

"Savalle was much mistaken in asserting that any of the as- sorted motors mentioned by him had successfully driven an om- nibus or any similar conveyance."

The court was even less impressed by Rosenwald (Fr. 116,871 of 1877) for a brougham having an Otto engine. Of this the court said: "A paper patent" and "inopera- tive" since "the most improved type of Otto engine then known weighed over half a ton per horsepower." A Hil- ton and Johnson patent (Br. 10 of 1878) and a Roberts patent (Br. 711 of 1877) were discarded, the court saying of the latter: ". . . provisional only . . . the pat- entees not able to complete their own invention."

The court commented briefly on the workmanlike man- ner in which the inventor had prepared his claims:

"Mr. Selden is a member of the bar, especially devoted to patent causes. He seems to have been his own solicitor during most of his contests with examiners over this application, and the clearly and simply worded claims in suit are good profes- sional work. He has avoided the trap into which Morse fell.

"Selden does not pretend to have invented any new machine ... in the same sense that Whitney invented the cotton gin or Howe the sewing machine. He does not . . . specify any one mechanical device for which in some branch of art a prototype cannot be found."

However the court found that Selden had organized the parts into a whole..

"After thirty years no gasoline motor car has been produced that does not have an organization of parts identical with or equivalent to that made by him."

The court held that in such an organization there re- sided a high order of invention and that the patent was so fundamental and far reaching as to cover "every modern car driven by any form of petroleum vapor and as yet commercially successful."

The decision instantly redounded to the benefit of the A. L. A. M. Membership climbed. Ford put up a bond and appealed.

The case came for hearing before the U. S. Circuit Court of Appeals for the Second Circuit. The decision was essentially as follows:(15)

In the specification and claims, Selden had set forth that any type of liquid-hydrocarbon compression engine might be used. As broadly as stated the combination was not patentable. In support of this position the Court cited a number of references including both track vehicles and road vehicles as follows:

Mackenzie, British patent 780 of 1865.

Savalle, French patent 77,644 of 1867.

Kirkwood, British patent 4410 of 1874.

Rosenwald, French patent 116,871 of 1877.

Le Monde Illustre, June 16, 1860.

The Brayton vehicles.

"The Mackenzie English patent of 1865, which the patent itself states was in the prior art, was for the use of steam or 'compressed air or other motive power instead of steam' for driving an omnibus or carriage. The structure of this patent included the use of a geared down chain and clutch."

The Savalle patent stated:

"I have tried to apply to road locomotion several motors op- erated by air expanded by the heat produced, either by the ex- plosion of gas or by air forced over a metallic surface, heated by coal or other combustible, or also by petroleum. These divers forms of motors apply perfectly when it concerns the traction of omnibuses or other large vehicles of this kind; but when it is necessary to apply this kind of locomotion to light carriages, only carrying one to six persons, or to drive a velocipede, these means become impracticable by the large space which they require."

Judge Noyes said that the Savalle patent:

". . . described how the Lenoir engine could be applied to road vehicles. This patent referred to the difficulties of apply- ing such engines to light carriages."

A Lenoir engine of 1.85 horsepower (Selden's was 2 horsepower) would have weighed 6000 pounds. The Sa- valle patent disclosed a cranked axle revolving at the same speed as the engine.

The Kirkwood British patent:

"... was for an engine 'worked by the explosive force of a mixture of gas and atmospheric air,' and which, among other uses, might 'be incorporated in the structure of an ordinary tramway car or other vehicle.'"

The Kirkwood vehicle was suggested for track, not road work.

Of Rosenwald, the lower court had said:

"In 1877 Rosenwald... made a picture of a brougham having an Otto free piston engine perched in an apparently insecure position between passenger and driver. His is a paper patent only, and is in my opinion clearly shown to be inoperative for reasons of which one only may be mentioned: The most im- proved type of Otto engine then known weighed over half a ton per horsepower. He did not use the most improved type, and did not propose any improvement or modification which would .have prevented his brougham from going to pieces at the first jar of his motor. This patent is the suggestion nearest to Sel- den, and is mentioned for comparison hereafter."

Concerning the Rosenwald patent the appellate court said:

"(It) was for a carriage propelled by a non-compression gas engine. This vehicle had reducing gears and a clutch or 'dis- entangler.' The engine described was of the free piston type and was poorly adapted for use in a road locomotive. "

The Rosenwald vehicle had an engine which at 2.9 horsepower would have weighed over 2 tons. It burnt street gas.

Le Monde Illustre was a French magazine. Judge Hough said of this reference:

"(It) proves nothing that relates to the form of engine to be considered in this litigation, while the absence of all later mention proves the car a sporadic failure."

Judge Noyes said of this publication:

"The first suggestion of their [gas engine's] use to propel road carriages was in 1860 in connection with the Lenoir engine. The Lenoir patent embraced the use of liquid hydrocarbon in the form of a vapor, and the engine was successful for stationary purposes. It was a non-compression engine. An illustration published in Paris in 1860 showed a vehicle propelled by this engine, and it was described in various publications. If such a motor vehicle were operated it undoubtedly ran slowly, and the engine had great weight in proportion to power. But no reason is advanced why the Lenoir engine was not capable of propelling a vehicle."

As previously stated a Lenoir engine of that day would have weighed 6000 pounds to 1.85 horsepower. There was no suggestion in the publication that the engine was modified in any way, except that the 1000 pound flywheel, without which the engine would not run, was omitted from the drawing. There was no reduction gear and the engine shaft and vehicle wheels were disclosed as op- erating at the same speed. There was no testimony that the vehicle was ever built.

With respect to the Brayton experiments the Court of Appeals said:

"It also appears about 1874 Brayton used one of his engines to propel a street car upon a trial track near the city of Provi- dence. The car was propelled back and forth over the half- mile track and up a slight grade. Some passengers were carried. There were reversing and disconnecting devices. The engine was large and heavy in proportion to the power which it fur- nished, and-an accident taking place-it was not long used. More power in proportion to weight was necessary for com- mercial street railway purposes, and the plan of installing these engines was given up-financial considerations entering into this determination. But although the experiments did not develop a commercial success, they were successful from a mechanical standpoint. The engine ran the car considerable distances and carried passengers. This use was not an abandoned experiment, but an abandoned attempt to induce the railway companies to equip the cars with the Brayton engine. The perfected struc- ture was capable of practical use, although there was much room for improvement. It was not embryotic or inchoate. The com- bination of the engine, the drive and the carriage was used in public, and therefore it required the use of the initiative, and not of the inventive, faculties to claim, without modification, the same combination. The use of the engine in one vehicle pointed directly to its use in another vehicle."

With respect to the use of -the Brayton engine on an omnibus, the appellate court said, as has been previously stated, that this would not be considered as in the ante- cedent art.

The conclusion of Judge Hough of the lower court to the effect that not a Ć½ingle one of the references sug- gested how an internal combustion engine could be made an element in a road vehicle was not denied. The ap- pellate court said:

"Much had been attempted and little accomplished. Indeed it was not until about ten years later, at the time of the Paris exposition of 1889, that the real automobile art may be said to have begun."

Not a single reference disclosed an internal combus- tion engine which had been modified for locomotion. They simply suggested using known stationary engines, which were insofar as the testimony showed, inoperative. Selden was the first to build an engine especially adapted, by reason of power developed per unit weight, to loco- motion.

But these stationary engines, at least one of them, was shown, to the court's satisfaction, to be capable of mov- ing a vehicle over a track. Since this use pointed directly to the use on road vehicles, it did not require invention to "claim the same combination."

On the other hand, the court found that to make the improvements in the Brayton engine necessary to adapt it to road locomotion involved more than mere mechan- ical skill, in view of the superior efficiency of the engine for the purpose.

"But we have been able to find that Selden reorganized the Brayton engine only by making close comparisons with that par- ticular construction. We have nearly broken established rules by looking at the drawings by themselves to ascertain the changes made in that engine. There is little enough to be found about the improvements to it and nothing at all about the alterations of other engines. The patent does not pretend or attempt to lay down any rule for reorganizing compression engines to fit them for vehicular purposes. It does not say that other kinds of engines than the Brayton type require changes. ' It does not say that the changes made in the Brayton engine could be made in other engines, or that if made they would fit them for use in motor vehicles. No one could learn from the patent whether the Otto engine could be constructed with an enclosed crank chamber or whether the substitution of the gearing ratio shown in the drawings would increase or diminish its speed. With the patent before a person skilled in the art, experiments, certainly, and invention, not improbably, would have been necessary to determine the steps required to reorganize the Otto engine."

"But any contention that a motor vehicle constructed by the patentee according to the teachings of the patent operated so successfully as to demonstrate that Selden had solved a great problem and is entitled to the status of a pioneer inventor is, we think, without foundation."

In conclusion, the court found, that if the claims be narrowly construed to cover only Selden's specific con- tribution to the art they could be held valid. So con- strued they were limited to the combination of a Brayton engine with a road vehicle; and since defendants used the Otto engine, the claims were not infringed.

Commenting on the decision "The Automobile" for January 12, 1911 said:

"Coming at a dramatic moment, while the great automobile show conducted under the auspices of the A. L. A. M. was un- folding in all its glory at the Garden, the United States Circuit Court of Appeals announced its decision of the famous Selden patent case Monday evening, adversely to the interests of the A. L. A. M.

"Judge Noyes wrote the opinion of the court and held that while the Selden patent covering an early type of automobile was valid it did not cover the basic features of the Ford car and others joined with the Ford company as defendants to the ac- tion" The court orders the cause sent back to the trial court to be dismissed with costs upon the complainants.

"The decision came like a clap of thunder and was entirely unexpected by the exhibitors at the big show. The whole at- mosphere seemed to take on an electric quality after the announcement and it was not until the next morning that some of the members were acquainted with the facts. "(16)

Ford declined to comment on the decision other than to state that the facts were before the public.

Selden was asked for a statement for the press. He said:

"I went into this enterprise hoping to make a little money out of it. I have succeeded much better than I expected and as my patent has but a year or two to run, the decision has no severe significance. The case will probably go to the Supreme Court."(17)

The case, however, did not go to the Supreme Court and shortly then after the A. L. A. M. was dissolved.

The A. L. A. M. had served its purpose. In addition to its licensing activities, the Association carried on re- search and standardization work under its mechanical branch. Approximately one year before the adverse de- cision the mechanical branch had been discontinued and all records, apparatus, and engineering library turned over to the Society of Automotive Engineers.(18)

The Selden case was closed, but the controversies that it aroused have endured to the present day. There have been greater inventions, more fundamental decisions, and more startling delays. But the Selden case still holds a unique position in the annals of the patent system.

selden and car

GEORGE B. SELDEN, in car powered by his original engine built in 1877. Picture taken in New York during patent litigation. Seated with Selden is Mr. Partridge of Wyckoff, Church and Partridge, New York, automo- bile dealers. The late George Raines of Rochester, N. Y., counsel for Selden, straw hat and cigar. The late Samuel T. Fisher, one time Assist- ant Commissioner of Patents, and then member of the firm of Wilkinson and Fisher, of Washington, D. C., patent counsel for Selden, derby and glasses.

 

 

  1. The Outlook, July 6, 1912.
  2. The Economics of Our Patent System, by Vaughan, 1925.
  3. Electric Vehicle Co. et al v. C. A. Duerr and Co. et al, 172 Fed. 923.
  4. The Rochester Alumni-Alumnae Review, February-March, 1940. Article by George B. Selden (son of the inventor).
  5. Patent No. 125,166, April 2, 1872.
  6. "The first idea akin to the Diesel principle was demonstrated by George Brayton of Philadelphia, who patented his engine in 1872." Modern Diesel Engine Practice, by Adams, 1931.
  7. Columbia Motor Car Co. et al v. C. A. Duerr and Co. et al, 184 Fed. 893.
  8. Electric Vehicle Co. v. Duerr et al, 172 Fed. 923.
  9. Patent No. 549,160, November 5, 1895.
  10. The Romance of the Automobile, by Doolittle, 1916.
  11. The following is a resume of the prosecution:
  12. Application filed May 8, 1879
    Rejection May 31, 1879
    Amendment May 26, 1881
    Rejection June 17, 1881
    Amendment May 15, 1883
    Rejection May 26, 1883
    Amendment May 18, 1885
    Office letter June 15, 1885
    Amendment June 15, 1887
    Rejection June 21, 1887
    Amendment June 10, 1889
    Office letter June 14, 1889
    Substitute specification June 5, 1891
    Office letter July I, 1891
    New oath June 28, 1893
    Rejection July 29, 1893
    Amendment April I, 1895
    Office letter April 29, 1895
    Amendment May 1, 1895
    Notice of allowance May 28, 1895
    Final fee paid Oct. 12, 1895
    Patent issued Nov. 5, 1895
    Analysis of these dates shows that the total time spent by the Patent Office in the 16 years and 6 months of pendency was only about 7 months. This includes 9 office actions and also the time spent in issuing the patent after the final fee was paid. The average time for an office action was 20 days; 4 days was theWShortest and 31 days the longest time for the office to act on the case. The time spent by the applicant was 15 years and I I months, to make 8 replies to office actions and to pay the final fee. This was of course, by making dilatory amendments and by taking full advantage of the two years period for amendment allowed by law. Later the law was changed to allow only one year for amending. If the one year period had been in force with respect to the Selden case, the total time for the prosecution would have been nine years, assuming the same character and number of amendments and substituting one year whenever two years was taken to reply. The one year period was reduced to six months in 1927. Had this time limit been in force the time of prosecution of the Selden patent would have been but 5 years.

     

  13. Annual Report of the Commissioner of Patents, 1895, XXVII.
  14. Handbook, Association of Licensed Automobile Manufacturers, 1908.
  15. Electric Vehicle Co. v. Duerr et al, 172 Fed. 923.
  16. Columbia Motor Car Co. v. Duerr et al, 184 Fed. 893.
  17. The Automobile, January 12, 1911.
  18. The Rochester Democrat, January 10, 1911.
  19. Selden's Contribution to the Automobile, by Henry R. Selden, 1940.

Journal of the Patent Office Society : The Selden Case: October, 1940, Vol. XXII, No. 10 , P. 719; Published with permission of the Patent & Trademark Office Society