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Life of Walter Quintin Gresham, 1832-1895 (Volume 2) online

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tion now, and will take hold of any business you may put
on my dockets except patent cases which involve scientific
investigation. I have no fancy and but little aptitude for
that branch of the law."

Other judges, both on and off the Supreme bench, con-
cealed their ignorance behind the formula, "No invention,
no novelty." Some judges adopted the principle that,
prima facie, all patents are void, and then bent their men-
tal energy to sustain this pre-conceived opinion. Judge
Gresham was not in this class. After his return to the
bench his first reported opinion is in a patent case, delivered
two weeks after he began his work, November 25, 1884.
During the eight years he continued on the bench he passed
on patents involving all kinds of machinery and electrical
appliances. In a majority of the cases the patents were
sustained. The fact that it was asserted there was mani-
pulation and political and other influences at work in the
Patent Office at Washington, was not prejudicial to any
patentee until the contrary was shown. He was not afraid


to sustain a monopoly within the law, indeed, he considered
it his duty to do so. Chauncey M. Depew said it would
never do to nominate Gresham because he upheld the
Driven Well patent. He was sustained in this decision by
a divided Supreme Court, four to four. It takes a majority
to reverse. At that term there was a vacancy by reason
of the death of Justice Clifford. But neither side wrote an

John W. Munday, one of the best patent lawyers of his
time, filed for his client a bill, Lawther vs. Hamilton, in
the United States Circuit Court for the Western District
of Wisconsin, for an injunction and damages, in which the
claim was made that General Hamilton, who was then
United States Marshal for the Western District of Wis-
consin, was "infringing Letter Patent No. 1 68 164, granted
September 28, 1875, for an improvement in the process of
crushing linseed, flaxseed, and other oil seeds, and extract-
ing the oil therefrom." It became the property of the
Linseed Oil Company or Trust. There was a hearing by
Judge Dyer, who, instead of deciding the case, ordered a
rehearing at which he asked Judge Drummond, who was
still the Circuit Judge, to sit with him.

Two years after the bill was filed, June 2, 1884, Judge
Drummond sent for Mr. Munday and said, "We are going
to decide this case against you. I wish you would tell me
where that authority is that sustains our position."

"But, Judge, I am on the other side."

"Yes, but you are an officer of my court, and are
familiar with the authorities."

"But there is no such authority."

Finally Mr. Munday said, "Judge, there is a textbook
on patents in which there are authorities both ways. This
much I will concede, but the authorities that tended your
way, Judge, were not well considered, and do not apply to
this Lawther case." Afterward, Mr. Munday said, "I got
the textbook on Patents and took it to Judge Drummond.


They beat me all right, but Judge Dyer, after all, wrote
the opinion."

Lawther followed his la\\^er's advice and appealed to
the Supreme Court, where Munday argued the case. In
an opinion by Justice Bradley, the Supreme Court reversed
the decree of Judges Drummond and Dyer in dismissing the
bill, and remanded the case with directions to sustain the
patent, ascertain the damages for its infringement, and
enter a decree for that amount in Lawther's favor.'

Judge Dyer referred the case to Master in Chancery
Ryan, who, after a year's time, reported the damages at
six cents, while Munday claimed that under the evidence
he had proved up damages to the amount of $63,000.
After the case was reversed, Judge Drummond, who had
retired and had been succeeded by Walter 0. Gresham,
adhered to his opinion and said the Supreme Court was
wrong. Munday excepted to Master Ryan's award of six
cents damages and went to Judge Gresham and demand-
ed a hearing. General Hamilton's total wealth was just
about $63,000 on a forced sale. I now quote Mr. Munday:

"Judge Gresham gave us a decree for $53,000. He al-
ways was for leaving the debtor something, and when there
was no exemption law applicable, he stretched the equity
rules. It was thus he left the old general $10,000. Mean-
while, the National Linseed Oil Company had bought out
Lawther. I reported the situation to my client : that while
Judge Gresham ought to have given a decree for $63,000
I guess he just concluded to leave the old general $10,000,
that notwithstanding Judge Gresham 's award. General
Hamilton still thinks he is right, and while I shall collect
the $53,000 if the general does not appeal, I think it would
be just as well for us to settle.

" 'At what figure will you recommend a settlement?'
asked the president of the company.

" 'Five thousand dollars. '

1 Lawther vs. Hamilton, 124 U. S. i.


" 'Do you recommend that as a lawyer or as a man?'

" 'As a man, and incidentally as a lawyer.'

" 'There will be a directors' meeting this afternoon, Mr.
Munday, and I will submit your proposition to them.' "

The directors authorized Mr. Munday to settle the
case as he had recommended.

After General Hamilton had paid the lawyer the $5,000,
Mr. Munday told Judge Gresham how he had closed the
case. Judge Gresham said, "I am glad of it. There was
nothing else for me to do under that Supreme Court man-
date. But I will never again feel that corporate manage-
ment is quite as bad as in many instances I have thought

A comparison of the opinions of Justice Bradley and
Judge Dyer in this Lawther case, in view of the word
"doubt" in Justice Bradley's opinion, warrants the view
that Judge Dyer had as strong and clear a grasp of the sub-
ject as Justice Bradley, and that, too, although there was
no such an authority as John W. Munday says Judge
Drummond thought there was.

He is a wise lawyer who knows when to let go. Con-
fronted with the real consequences of its decree or opinion,
although supported by all of John W. Munday 's ability —
for he was an advocate as well as a mechanic, one of the
best in his special line — the Supreme Court might not
have stood "hitched."

Unlike Judge Drummond and other judges. Judge
Gresham never from the bench criticized nor side-stepped
the mandates of the Supreme Court. He obeyed them
in good faith. Sometimes he would threaten to resign
rather than follow them, and the fact is he did finally
resign and would never have gone back on the bench had
he lived. Off the bench, in his capacity as a man and the
master of his profession, he criticized the processes and con-
clusions of his brethren. To-day I am glad to say that the
mass of the judiciary are interpreting the law more in the


spirit of humanity and justice than prevailed at the time
of which I am writing.

As a circuit judge, Walter Q. Gresham heard and con-
ferred with Justice Harlan and the district judges in the
Seventh Circuit in all kinds of cases cognizable in the
Federal courts. In most cases it was after argument in
open court. Sometimes there would be oral conferences,
sometimes by letter. His reported decisions are found
in the Federal Reports, beginning at Volume 22 and run-
ning to Volume 56. Some of these openings show that they
were submitted to Justice Harlan, although he was not
present at the hearing of the particular case.

Not always was there harmony between Circuit Justice v/
Harlan and Circuit Judge Gresham, and the latter, aside
from "the rebuke," did not always reflect in advance the
opinions of the Supreme Court. And when it comes to
patent litigation, the reader certainly will not censure the
circuit judge for not deferring to nor even consiaering the
circuit justice, for he himself had ruled himself out. Mel-
ville W. Fuller was without experience in patent litigation
while at the bar. He avowed his dislike for it after he be-
came Chief Justice and his opinions disclose this aversion,
as do the opinions of other members of that Court when
appeals in patent litigation went to it. Now, under the
Circuit Court of Appeals Act, which members of the Su-
preme Court were not without influence in drafting, prac-
tically all of the patent litigation ends in the Circuit Court
of Appeals. May 3, 1892, when the Court of Appeals
had only been fairly organized, Justice Harlan wrote, "I
am perfectly willing to give all the time while I am in
Chicago to Court of Appeals business, excluding patent

Constitutional questions are easy compared to "patent
cases which involve scientific investigation." But no less
important to the body politic may be the correct deter-
mination of the patent case. During my husband's time.


Justice Joseph Bradley was conceded by patent lawyers to
be an exception to the rule. Partisan though he was
charged with being, in ability and learning he was a master
of all branches of his profession, including patents. But
his opinions, with due deference to the patent lawyer, do
not disclose a grasp and knowledge of this branch of the
law as do the opinions of Henry W. Blodgett, the United
States Judge for the Northern District of Illinois during the
period Justice Bradley sat on the Supreme bench. At the
bar, both men had had varied and wide experience; neither
much, but Blodgett more than Bradley in patent litigation.
Appointed to the Federal bench about the same time, one to
the Supreme bench where there was but little patent liti-
gation and that of an appellate character, the other to the
district bench in a district where there was perhaps more
patent litigation than in any other district in the country'',
the one hearing one patent case to a score heard by the
other. Judge Blodgett in the very nature of things devel-
oped into the more efficient patent judge. When it comes
to recommending lawyers for appointment to places on
the Federal bench, the patent lawyers as a class have never
united in recommending one of their own number. They
seem to prefer the appointment of a lawyer without experi-
ence in this branch of the profession. The objection that
the patent lawyer is only a mechanic always has weight
with the appointing power. But the fact is that there are
patent lawyers who are not only mechanics but accom-
plished lawyers and men of the highest sense of honor.
Manifestly there ought always to be at least one man on
the Supreme bench a master of this branch of the law.
Because patents are monopolistic in their tendency is no
reason for withholding, but it is a reason for scrutinizing
with the most zealous care the grants of all patents. If
wrongfully granted and coUusively maintained — the law-
yers on opposite sides, working to this end, in a way that
only an expert can detect — they must be withdrawn.


Inefficient judges are bad for the litigants, but they make
business for the lawyers.

As specifically illustrating Walter Q. Gresham's work
during the eight and one-half years he was on the Circuit
bench, and until he entered Mr. Cleveland's cabinet as
Secretary of State, I will resort to the case system. I will
give the history of a patent case, a case that was on both
the law and the chancery sides of the court, and the
Wabash Railroad receivership.



npHE Pullman Palace Car Company versus the Wagner
-■- Palace Car Company was a most important case, out-
side the great financial interests involved. It is typical as
illustrating the manipulation and influence that may be
exercised in the Patent Office and higher up, the attempts
of able counsel to manipulate the courts in the interests of
their clients, and the folly of a great commercial and execu-
tive mind attempting to assume the role of an inventor.

April 27, 1887, Henry Howard Sessions, the general
superintendent of the car shops of the Pullman Palace Car
Company, at Pullman, Illinois, filed an application in the
patent office for a new and useful improvement in the con-
struction of railroad cars. Immediately Sessions assigned
whatever right he had in this application to the Pullman
Palace Car Company. At this time Sessions was forty-five
years of age, and for three years had been superintendent of
the Pullman works. At fourteen he had begun work as an
apprentice in the shops of the Central Vermont Railroad
Company, and had passed through all the grades up to
that of superintendent, and as such had charge of the car
building department of various railroads and corporations



whose sole business was that of building railroad cars. He
had made or helped make every part of railroad passenger
and freight cars. He was a draftsman of skill and was
experienced in the phraseology of patents.

In 1873, while superintendent of the car shops of the
Rome, Watertown & Ogdensburg Railroad, Sessions made
the first drawing of his invention. His object was to reduce
the shock of collisions and to prevent the oscillations of cars
when running rapidly and around curves, especially experi-
enced b}' persons occupying upper berths in sleeping cars.

The means to this end is a frame-shaped plate applied
vertically from top to bottom and transversely to the end
of the car. This frame is projected a short distance beyond
the end of the car b}^ back springs which, when the cars are
coupled together, keep the rough surfaces of the plates on
the coupled cars in frictional contact by the back pressure.
There are springs at the top of the car, but the main spring
is at the platform, and part of the force is transmitted along
the plates to their top. Between the face plates and the
springs are "piston rods." These piston rods are attached,
one end to the face plate, the other to the end of the spring
in the body of the car. The piston rods can be seen on any
Pullman or vestibule car above the canvas or rubber hood
which connects the face plate and the end of the vestibule.
Neither the hood nor the vestibule was part of the inven-
tion, and Sessions made no claim to them as such. They
were old devices.

In rounding curves the inner springs contract while the
outer expand, and thus the opposing face plates are in
constant frictional contact, which holds the cars together
without oscillation, and diminishes the force of shocks when
in collisions.

The president of the Watertown Company said Sessions'
plan was all right, but that the finances of the railroad
would not permit of its adoption. George M. Pullman
was the first man in an executive position on a railroad or


in a car manufacturing plant who enabled Sessions to put
his device into practical operation. He must be given due
credit for seeing what other men rejected, but this does not
entitle him to rank as an inventor or discoverer. A com-
plete vestibule train equipped with the Sessions device was
finished before the patent was applied for. This train was
exhibited at Chicago, Pittsburgh, Philadelphia, and in New
England cities.

Always the pioneers in railroading and the ablest in
their line, the men in control of the Pennsylvania Railroad
Company promptly caused it to make a contract with the
Pullman Company for the use of two complete Pullman
trains equipped with the Sessions device to run opposite
each other as the first 24-hour trains between Chicago and
New York, called "The Limited." The Pennsylvania also
acquired the right to use the Sessions device on its own
cars, and embodied this provision in the contract: "The
Pullman Company would not license the use of the Ses-
sions invention to any of the competitors of the Penn-
sylvania Company." This stipulation was aimed at the
New York Central, the only competitor of the Pennsyl-
vania for passenger traffic that desired the fast time between
New York and Chicago.

December 15, 1887, the patent issued, but to the Pullman
Company as assignee. A few days later the Pullman Com-
pany brought its suit against the Wagner Company to en-
join it from using the Sessions improvement. The Wagner
Company was then operating, and had for a long time prior
to that time operated, sleeping cars on the New York Cen-
tral Railroad and its subsidiary Hues. The Wagner Com-
pany, without any leave or license, had begun to use the
Sessions device soon after Sessions made his application
for the patent.

The Wagner Company denied there was any novelty or
utiHty in the Sessions patent. It named thirty-four English
and American patents that it claimed anticipated it, and


denied that before it was issued as a patent the appHcation
of Sessions was subjected to any critical or exhaustive
investigation in the Patent Office. These denials were
followed by the assertion that many times was Sessions'
application rejected, "and that the examiner finally yielded,
as constantly happens in such cases, only to the importunity
oj the applicant.''

The testimony included that of patent experts and rail-
road men of all grades, from mechanics and shop men down
to railroad presidents. The thirty-four patents were criti-
cally examined by the experts and the court, but no evidence
was offered in support of the assertion that the Wagner
Company had made in its answer as to the Patent Office.

The case on final hearing came before Judges Gresham
and Blodgett. They agreed in sustaining the patent and
awarding an injunction to the Pullman Company, with
damages to be ascertained by a master, to whom the case
was referred for this purpose. No appeal was prayed.
Instead, the Wagner Company gave the Pullman Com-
pany a bond conditioned that it would pay the Pullman
Company whatever damages the master might find it was
entitled to. That there was utiHty in the Sessions device
is conclusive from the statement at the time of Watson S.
Webb, president of the Wagner Company: "We simply
must have it or abandon our trains."

Benjamin F. Thurston, Offield and Towle, and Runnells
and Burry appeared for the Pullman Company, and George
Pay son and Coburn and Thacher for the Wagner Company.
All except Runnells and Burry had for years limited their
practice to patent Htigation. Benjamin F. Thurston was
recognized as the ablest advocate of his time in his
specialty. George Payson had for years been the chief
adviser of the Western Railroad Association in all patent
litigation and in all questions relating to patents that
might affect railroads. The Western Railroad Association
was composed of practically all the railroad corporations



operating railroads west of Chicago. Coburn and Thacher
were eminent in their specialty.

The case was most ably and elaborately argued. The
principal argument in support of the validity of the Sessions
device was made by Mr. Thurston. Careful consideration
by the two judges in conference was given to the testimony,
which made a volume of a thousand printed pages. There
were exhibits and models. After the conclusion was reached,
the opinion to justify the conclusion was prepared by
Judge Gresham with the concurrence of Judge Blodgett.
It was then held for a time to make any change that might
occur on further reflection. During this time the manu-
script was placed in my hands for safe keeping. Of course,
I read it. It was as plain to me as the description my
husband had written me of the oven the soldier had built
in his tent when in Kentucky in November, 1861. Besides,
when it came to running a sewing machine and fixing it
when it got out of order, no woman could beat me at that.

One day at noon the judges announced they would
decide the case at 2 o'clock of that day. After the case
was decided, Mr. John W. Doane, who was a great specu-
lator and interested in Pullman stock, even if he was head
of a bank, said to me:

"That was an important decision of your husband's the
other day."

"Yes," I replied. "I knew of it for days."

"Had you told me of it we could have made a lot of
money," said Mr. Doane.

"That is something that never happened through me —
a leak," I answered.

Like many another woman whose position put her in
the possession of information the knowledge of which
would be of great value to newspaper men and women,
men of affairs and speculators, I have been approached in
various disguises to learn that of which it was natural to
suppose I was cognizant. But never once was I "pumped."



All other resources failing, like many another woman I

have feigned that stupidity that left my interrogator under

the impression I was the most ignorant woman on earth.

The concluding portion of this opinion was as follows:

It required more than mere mechanical skill to see that the
pressure of the platform buffer springs could be made effective
in vertical lines between the superstructures of the cars as well
as in the longitudinal lines of the platforms. Sessions discovered
a means whereby our long high American cars might be made
to run as steadily as the low short English cars, and the fact
that for years his now simple device occurred to none of our
many car builders is a circumstance strongly favoring the claim
that his invention possesses novelty. If his device, or anything
like it, and capable of producing the same useful results, was
known in the prior art, it is remarkable that its practical utility
was not recognized sooner and understood. All prior buffing
structures lacked what was necessary to give them the effective
force that the Sessions elevated spring buffer plates are capable
of exerting. We have already seen that the value of the Sessions
improvement as a means of diminishing the force of shocks and
counteracting the tendency to sway when in motion, was promptly
recognized by the principal railroads of the country; while utility
is not conclusive proof of invention, it is strongly suggestive of
it. Owing to the differences between American and English cars,
there was greater necessity for additional means of steadying
cars of the former class than of the latter, and yet no one sug-
gested the elevated buffer plates. The defendants are at liberty to
use the vestibule structure without the Sessions invention, as well as
all the various prior trifling devices, whether described in patents
or not, and yet they persist in asserting their right to use the Ses-
sions biiffer plates while denouncing them as worthless. If they
are sincere in thus characterizing this improvement, why do they
squander money in attaching it to their cars? Practical railroad
men do not adopt and use devices that are of no value.

This opinion upholding the Sessions patent was read
April 17, 1889. On May 13, 1887, sixteen days after the
application for the Sessions patent had been made, George


M. Pullman filed in the Patent Office his application for a
vestibule connection for railway cars. Its chief factor was
the Sessions device. In time Pullman came to claim that
his patent covered the Sessions device, and that he was the
inventor of it. But it was not until May 14, 1889, after
several rejections, many amendments, and one disclaimer,
that George W. Pullman was granted a patent. No. 403,137.
This patent Mr. Pullman promptly assigned to the Pull-
man Company. The Patent Office seemed to see its way
clear to grant a patent on the combination of the vestibule,
which the opinion of April 17, 1889, had said was no novelty,
with the Sessions device.

May 31, 1889, the Pullman Palace Car Company brought
a suit in the Circuit Court of the Northern District of
Illinois against the Lake Shore & Michigan Southern Rail-
road Company, and W. S. Webb as president of the Wagner
Palace Car Comipany; and on July 23 of the same year,
the Pullman Company brought another suit against the
Michigan Central Railroad Company and W. S. Webb as
president of the Wagner Palace Car Company. In both
suits the prayer for relief was the same, an injunction
against using the Pullman device as described in patent

No. 403,137-

At this stage it will not take a patent lawyer to see that

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