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_; EDISON FILAMENT PATENT 1,
' IN CANADA;
_ ' ISMISSAL OF THE PETITION
OF THE
Boyal Electric Company "
FORFEITURE'OF PATENT N0. 1Q,654, GRANTED
NOVEMBER 17, 1879.
BY
HO“ JOHN C‘ARLING, MINISTER OF AGRICULTURE.
E
!

‘ |
i
' 1
.J_ . ‘ 0m WA. NOVEMBER 25. 788.9.

_ PUBLISHED BY THE
EDISON ELECTRIC LIGHT COMPANY,
44 Wall Street, New York City.


W at». miss—35"
' PATENT CASEZ'~ a
k.
,_ ,N_ﬁ..».-. ....I-....1....C,..,,,_‘_w~
Before the Hon. JOHN CARLING, Minister of Agriculture.
THE. ROYAL ELECTRIC COMPANY OF CANADA, Petitioners,
and EDISON ELECTRIC LIGHT COMPANY, Respwzdmzs.
Messrs. Z. A. Lash, C., of Toronto, R. D. McGibbon,
Montreal, Curtis, of New York, and Kerr, of Pittsburg,
Pa, Counsel for Petitioners.
Messrs. Hector Cameron, Q. C., B. B. Osler, Q. C., of
Toronto, McMaster, C., of Montreal, and Grosvenor
P. Lowrey, of New York, Counsel for Respondents.
This is a re-hearing of the case, on the petition of the
Royal Electric Light Company of Canada, tried before Mr.
Richard Pope, the Deputy Commissioner of Patents, and
on which he gave a decision on the 26th February last, an-
.nulling the Edison Patent, in virtue of sec. 37, chap. 61,
Revised Statutes of Canada.*

*SECTION 37.—Every patent granted, under this Act, shall be subject and
be expressed to be subject to the condition that such patent and all the rights and
privileges thereby granted shall cease and determine, and that the patent shall be
null and void at the end of two years from the date thereof, unless the patentee or
his legal representatives, within that period, commence, and, after such
commencement continuously carry on in Canada the construction or manufacture
of the invention patented, in such manner that any person desiringr to use it may
obtain it, or cause it to be made for him, at a reasrmable price, at some manufac-
tory or establishment for making or constructing it in Canada,—-and that such
patent shall be void if, after the expiration of twelve months from the granting
thereof, the patentee or his legal represesentatives or his assignee for the whole
or a part of his interest in the patent, imports or causes to be imported into Canada,
the invention for which the patent is granted; and if any dispute arises as to whether
a patent has or has not become null or void under the provisions of this section,
such dispute shall be decided by the Minister or the deputy of the Minister of
Agriculture, whose decision in the matter shall be ﬁnal:
2. Whenever a patent'ée has been unable to carry on the construction or manu-
facture of his invention within the two years hereinbefore mentioned, the com-
missioner may, at any time not more than three months before the expiration of
that term, grant to the patentee an extension of the term of two years on his prov-
2
A doubt having arisen as to the jurisdiction of the
Deputy Commissioner of Patents, in virtue of the provisions
of the section of the Act referred to, it was decided that
the case should be commenced de 720710.
A re-hearing accordingly took place before me on the 23d
July last. '
The evidence taken at the previous hearing, before the
Deputy Commissioner of Patents, was accepted by both the
petitioners and the respondents, and some additional evi-
dence was taken. The counsel on both sides argued the
question at issue, from their respective standpoints, with
great clearness and ability.
In addition to the arguments at the last hearing, Mr. Low-
rey, on behalf of the respondents, with consent, put in a
written statement of argument, a copy of which was com-
municated to Mr. Lash, and to which he subsequently fur-
nished a reply.
After a careful consideration of the evidence. I decide as
follows:
(I.) I ﬁnd that Thomas Alva Edison, the patentee of the
patent in the proceedings mentioned, did, within two years
from the date of such patent, commence, and, after such
commencement, did continuously carry on in Canada the
construction and manufacture of the invention patented, in
such manner that any person desiring to use it might obtain
it, or cause it to be made for him, at a reasonable price, at
some manufactory or establishment for making or construct-
ing it in Canada.

ing to the satisfaction of the commissioner that he was, for reasons beyond his con-
trol, prevented from complying with the above condition.
3. The commissioner may grant to the patentee, or to his legal representatives
or assignee for the whole or any part of the patent, an extension for a further term
not exceeding one year, beyond the twelve months limited by this section, during
which he may import or cause to be imported into Canada the invention for which
the patent is granted, if the patentee or his legal representatives, or assignee for the
whole or any part of the patent, show cause, satisfactory to the commissioner, to-
warrant the granting of such extension; but no extension shall be granted unless
application is made to the commissioner at some time within three months before
the expiring of the twelve months aforesaid, or any extension thereof.
3
(2.) I further ﬁnd that, after the expiration of twelve
months from the granting of the said patent, neither the
said patentee nor any person claiming or holding under him
did import or cause to be imported into Canada the inven-
tion for which the said patent was granted.
I do, therefore, in pursuance of the statute in that behalf,
declare that the said patent has not become null or void,
and I dismiss the application of the petitioners, the Royal
Electric Company of Canada.
JOHN CARLING,
[l/[z'nz'stcr of Agriculture.
DEPARTMENT OF AGRICULTURE, i)
OTTAWA, 25th November, 1889. 5
The Hon. Sir John Thompson, Minister of Justice, sat
with the Minister of Agriculture at the hearing. His re-
port on the case is as follows:
OTTAWA, 30th October, 1889.
DEAR SIR,--I beg to return to you, herewith, all the
papers which have been sent from your Department to
mine in connection with the Pctz'lz'on of the Royal Electric
Company/of. Canada for the forfeiture of the patent held
by the Edison Electric Lag/12‘ Cal/zpczrzy, which petition was
heard before you and myself in July last. In so doing I
have to state to you the opinion which I have formed as to
the merits of the application made by the petitioners and
contained in the petition.
The nature of the petition, and of the various proceed-
ings taken under it, down to the time when it was heard by
Mr. Richard Pope, Deputy Commissioner of Patents, are
recited in the decision which was rendered in this case on
the 26th of February last by that gentleman. I need not
detail these matters again, because the narration by Mr.
Pope indicates them sufﬁciently, although it will be seen
that I do not concur in his conclusions as to what was
established by'the evidence, in regard to many important
4
points, but arrive at conclusions almost directly opposite.
In order that the explanation of the fact that the case sub-
sequently came before us may appear in the record, I may
remind you that after the decision of Mr. Pope was pro-
nounced the respondents made application to the Governor
General in Council, praying, on various grounds, that effect
should not be given to that decision. The application was
then referred to you and myself, by His Excellency in
Council, for report, and on the examination of the subject
which ensued it seemed to be, at least, doubtful that Mr.
Pope, as Deputy Commissioner of Patents, possessed the
necessary jurisdiction to hear and decide on such a petition,
or to pronounce judgment upon it.
It was, accordingly, deemed best that the whole matter
should be reheard before yourself as Minister of Agricul-
ture; and you having desired my assistance at the hearing,
I had the pleasure of hearing this most important subject
very ably discussed. It was agreed at that time (subject to
certain reservations which are not important now), that all
the evidence, proceedings and arguments which had taken
place before Mr. Pope should be considered as re-taken
before yourself, and should be used to the same extent as if
you had heard them. This evidence, and the report of the
arguments which had taken place before Mr. Pope, together
with the arguments which we heard, and the briefs which
were subsequently handed to us, contain the material on
which I am now to give you my opinion.
I have considered the subject carefully, and have delayed
somewhat the expression of my opinion, in consequence of
ﬁnding myself unable to arrive at the same conclusion as
that expressed in the decision of Mr. Pope, who truly says in
his decision that he had bestowed upon it “ all the care, study
and consideration which his time and ability admitted, in
endieavoring to arrive at a sound, just and equitable con-
clusion,” and who, I know, possesses in a very high degree
the ability to consider such matters in the way in which
they should be considered by a person exercising judicial
functions in regard to them. i
I ﬁrst put out of consideration the contention made by
5
petitioners that the extension which was obtained by the
patentee on the 16th of November, I88I (for three months),
of the time to begin the manufacture of the patented article
in Canada was obtained by fraud. The extension was made
on an ex partc application, no doubt. The law contemplates
the application being cxpczrz‘c. It empowers the Commis-
sioner of Patents to decide on the proof which may be thus
submitted to him. The Commissioner did decide in favor
of the application. Without disputing the proposition that
“ fraud invalidates everything,” and, although it may be that
if the concession then made by the Commissioner were ob-
tamed by fraud it might be treated as null, I see no ground
for sustaining the contention that it was obtained by fraud.
The proof on which the application was based may perhaps
have been exaggerated. It may perhaps have been untrue.
I am far from saying that it was either exaggerated or
untrue. The evidence on that point offered by the peti-
tioners was, to my mind, very inconclusive. It has not made
the impression on my mind which it has made on that of
counsel for the petitioners, who argued that the company
which had obtained the extension was shown to have been
“one of the wealthiest companies in the United States,"
although its capital for the operations in the United States
and Canada was under $800,000.
He was led to that conclusion by the fact that the shares
of the company advanced in price very much above par,
forgetting, apparently, that the proﬁts on sales of shares is
the profit of the owner of the shares-not of the company-
and that the advance was evidently due to the speculative
anticipations formed as to the company’s future.
Assuming, for the sake of the argument, however, that
the proof was untrue,--that certainly would not render the
decision of the Minister null.
The decision or judgment of a tribunal cannot be treated
as null simply because the person in whose favor it was
obtained put forward false testimony. The extension of
time was actually made by the Minister. No application
has ever been made to rescind the Minister’s order, and
therefore the time within which the patentee was bound to
6
cease importing the patented article and to begin the manu-
facture of it in Canada was the 17th of February, 1882.
In the view that I take of this case it will be unnecessary
for me to express my opinion as to whether the jurisdiction
possessed by the Minister of Agriculture, or his deputy, is
exclusive, as contended for by the petitioners, or conclusive,
when exercised, as contended for by the respondents.
I think we may also put out of the case the points taken
in the particulars as to the importation of completed lamps.
These points were probably based on a misapprehension of
fact. It appears that four completed lamps were actually
imported.
It is said they were returned, or destroyed, and that the
importation had been made by mistake.
The excuse, however, is not material. They were never
sold in Canada, nor offered for sale, nor intended to be sold,
but were merely intended to be used as samples, or models,
of the article which it was intended should be manufactured
within the Dominion.
Another item of this charge was the importation of lamps
for the Lachine Canal ; but it seems from the evidence that
what were called lamps were only lamp ﬁttings.
In fact, these points were not presented for our considera_
tion as grounds on which the petitioners expected a favor-
able decision. We may fairly treat them as having been
abandoned.
The application of the petitioners, therefore, rests on the
set of facts following:
The patentee has made his lamps out of glass bulbs and
glass tubes made in the United States and imported from
there into Canada; with platinum wires produced from
platinum, mined in Russia, manufactured into wire in the
United States and imported into Canada from there; with
ﬁlaments of bamboo, grown in Japan, imported thence to
the United States, carbonized partially in furnaces there, and
imported thence into Canada, with brass bottoms made in
the United States, to ﬁt into lamp sockets, and imported
into Canada; also with copper wire which has come from
the United States.
7
The glass bulbs and tubes are the ﬁrst articles to be con-
sidered. It is admitted that they are articles of commerce
in the United States. in Canada, and in almost every other
country, and were so for many years before the patent.
It is clear that bulbs and tubes of that description are used
for other purposes than for electric lamps, the bulb being
the simplest form the glass takes in the process of blowing,
and the tubing being made and used for a great variety of
purposes.
While the hearing was going on in your ofﬁce you may
remember that it was pointed out that a number of such
bulbs were standing on your desk for the purpose of
exhibiting various kinds of seeds.
A description of the patented lamp does not mention the
glass bulbs as being an essential part of the lamp. A trans-
parent chamber of any shape, or of several parts joined, cap-
able of affording a vacuum, would suffice. Therefore, the
bulbs and tubes are not used exclusively for this purpose,
and are not even essential to the invention, strictly
speaking.
There is some evidence as to the glass bulbs and tubes
being manufactured expressly for the respondents, that is,
manufactured to their order, and there seems to be no doubt
that each electric light company gives an order in advance
for the number of bulbs which it will require, by a given
time, as well as for the amount of tubing which may be re-
quired. This is not, by any means, because the manufacture
of bulbs and tubes is conﬁned to electriclamp purposes, but
because it is necessary that they should be carefully made,
more free from ﬂaws than would he insisted on if they were
used for some other purposes, and because it is necessary
that the tubing, which has to be connected with the bulbs,
in the process of making the lamp, should be of the same
melting, and the same description of glass, as the glass of
which the bulb is formed. Some companies also desire
that their bulbs should have a distinctive form, which is
very easily given by the blower, and seems to be merely a
matter of fancy. All this does not, in my opinion, make
any essential difference ; it is simply a precaution for care
8
and accriracy in the making of a very common article of
merchandise which is to be used in the construction of a
patented article.
It cannot, certainly, be urged that the respondents might
use bulbs and tubes carelessly made and ill-matched with-
out forfeiture of the patent, but that they must lose their
patent by reason of the pains that they take to avoid defects
and flaws.
These bulbs and tubes, as I have said, are not a part of
the claim in the patent. In fact. it is quite possible to con-
ceive of the patented article being made without them-
made, for instance, in some other shape. However this
may be, they are articles of commerce, which any one may
import, manufacture, sell or use without infringing the
patent. They were in use long before electric lamps were
invented, are used for other kinds of electric lamps, and I
cannot come to the conclusion that the importation of these
into Canada incurred the forfeiture of the patent.
What I say on this point may be taken as said of many
other articles which go into the composition of the lamp,
and which will be referred to hereafter. I do not see how
it can be reasonably contended that these articles may be
imported freely into the country, may be sold in all our
shops and warehouses, may be used for any other purpose
which a purchaser pleases (even for the manufacture of
electric lamps), and the purchaser be liable to no penalty;
while, if the patentee buys them, and uses them in making
his lamps, he is to incur the enormous penalty of forfeiture
of all his patent rights. If he may buy them here and use
them for his lamps, he may certainly import them and use
them.
It does not seem reasonable that a person who has been
placed expressly under the protection of the patent law,
as a reward for inventive genius, and for expenditure of
labor and capital in devising a patented article, should be
subjected to enormous penalties for doing what everybody
else may do, and I do not think that such would be a cor-
rect construction of the law.
The platinum wire is imported from the United States
9
wound on spools. It is not denied that this is an article of
commerce, useful for many purposes. It is not pretended
that its production is covered by any claim in the patent
which makes its manufacture the sole property of the
patentee. '
Is it a thing, therefore, which he is bound to produce and
manufacture in Canada? On the contrary, it is a general
article of commerce, as much as so valuable a material can
be, and the only difference between the platinum wire of
general commerce and the platinum wire used by electric
lamp manufacturers is that the latter is desired to be free
from flaws and defects, which sometimes may be tolerated
in the former. In other words, the patentees are not to be
permitted, it is virtually contended, to import platinum
wire for use in their lamps unless it is irregularly and de-
fectively made; but if roughly and badly made the law is
not violated and the patent is not to be cancelled. There
was evidence that the platinum wire is sometimes alloyed
with iridium to stiffen it, and make it hold up the lamp
better than it otherwise would : but this is also true of the
platinum wire used for many other purposes, and the alloy
is nothing new, is not covered by the patent and is by no
means essential. The platinum wire, even with the alloy,
was in use long before the electric lamp was invented. The
copper wire is imported from the United States in small
coils.
It is a common commercial article, used for many pur-
poses, and not an essential part of the lamp which was
patented by the patent under consideration.
All that the claims in the patent say in regard to the
wires is that the ﬁlament shall be “secured to metallic
wires,” and that “metal wires” shall pass through “a re-
ceiver made entirely of glass,” and the “securing of platina
contact wires” to a carbon ﬁlament. The copper wire
used is the copper wire imported and used for all electrical
purposes.
As to the brass bottom pieces, it is stated in the testimony
that these are two brass pieces, separated, or held together,
by means of plaster, and that the two brass pieces are im.
10
ported into Canada from the United States and are put to-
gether and set in plaster in Canada and attached to the
lamp. lt does not appear that these brass pieces are an es-
sential part of the lamp, or in any way covered by the patent
claim, or by the patent itself. The pieces may be of any
other material which will serve the purpose, and may be of
any shape, size or quality which fancy can design. They
are, in one form or another, common to all electric lamps.
The expert called by the petitioners say concerning the
brass shells : “ There is absolutely nothing said about it in
“the patent, so I should regard it as a subsequent improve-
“ ment or attachment.”
It is clear, to my mind, that in respect of all these articles
(and only one remains to be considered), every one of them
is of the public domain, free to every person in Canada to
manufacture, import, sell and use without thereby infringing
the patent under consideration, and that, in respect of their
use, the respondents incur no greater liability or penalty
than they incur by importing, and not manufacturing, the
plaster with which they seal the lamps, or any of the com-
mon appliances of the workshop which may be used in the
manufacture.
The carbon ﬁlament remains to be considered.
This is described in the patent claim as “a ﬁlament of
carbon of high resistance, made as described, and secured
to metallic wires, as set forth,” SIC.
The strips of bamboo, out of which ﬁlaments are made,
are imported from Japan, as I have said, are split into
threads in the United States, baked into a partly carbonized
condition there, and sent from there into Canada. As a
matter of fact, it seems that the carbonizing of the ﬁlament
is a very difficult. work, requiring great experience and
skill. It has been principally done by Mr. Edison himself,
and although, perhaps, sometimes done by others, has so
often failed in the hands of others, even of those who had
temporarily succeeded, that the work is practically reserved
for Mr. Edison’s factory in New Jersey, or was so at the
time under consideration,
11
This was the case as to ﬁlaments for use in Europe as
well as for use in Canada.
It may also be observed, in this connection (although it
may not have an important bearing on the legal view of
the question), that the ﬁlament is of a very triﬂing value,
even after it has been carbonized, and of very triﬂing cost.
After being brought into Canada it is attached to the
leading wires, and, during the process of exhausting the air
from the glass bulb, is subjected to an electric current for
the greater portion of half a day. The carbonizing which it
receives in the United States and the treatment by electric
current after it arrives in Canada, before the ﬁnal completion
of the lamp, are what make the ﬁlament a ﬁlament of high
resistance and fully carbonized. It could hardly be said to be
fully carbonized until the treatment which is given in Canada
has been applied. Before that the ﬁlament is a partly car~
bonized ﬁlament, which would emit light when the current
was applied, but not efﬁciently; because, not being com-
pletely carbonized, it would be of short duration, compara-
tively, and would impair the vacuum. It would be a car-
bonized ﬁlament, but not “a ﬁlament of carbon."
I must observe of the ﬁlament, as of the other articles
which I have enumerated above, that the production or
manufacture of this article is not covered by the patent
claim or by the patent. True, it is a most essential part ot
the patented invention. It may, perhaps, be said to be what
Mr. Pope declares it to be, “ the novelty which the inventor
has contributed to the art of incandescent lighting." To
my mind, however, there is a mistake, which would lead to
an erroneous conclusion on the whole subject, involved in
the proposition which has been put before us in the follow-
ing words: “The carbon ﬁlament, as imported by the
patentee and his representatives, the respondents * * *
is claimed in and covered by the patent; * * 'X' anyone
who should use it, without the permission or consent of the
respondents, would render himself liable to them in an
action for infringement of the patent.” Reading these
words in connection with the statement that “the carbon
ﬁlament of high resistance is the novelty which the inventor
12
contributed to the art of incandescent lighting,” one would
expect, in turning to the patent, to ﬁnd a patent simply for
“a carbon of high resistance,” because nothing but a nov-
elty can be the subject of a patent, unless it be a new com-
bination, and the language used in the proposition before
quoted would not apply to a combination. But the carbon
ﬁlament is not “ the invention for which the patent is
granted ” (to quote the exact words of the enactment pr0~
hibiting importation, which is invoked here). On the con-
trary, the production of the ﬁlament is not covered by the
patent at all. The “invention for which the patent is
granted ” is alamp in which the ﬁlament is to emit the light.
The lamp was old, the ﬁlament new. The combination
was patented.
The patentee might have patented the ﬁlament, it would
seem, but he has chosen to patent only the lamp containing
the ﬁlament—or, the combination, and not the new part
merely.
If the views expressed in the above quotations were sound,
the patentee would have satisﬁed the conditions of the
patent by simply making the ﬁlament of carbon in Canada,
and doing no more ; but it is clear that if he had done only
that the petitioners would have had an unanswerable case
for the forfeiture of the patent. They would have said:
“ True, your great contribution--your only contribution to
the art of electric lighting, was your ﬁlament of carbon, but
you have patented a lamp, in which that ﬁlament would
give out light. How is it that you have not made lamps in
Canada, but only carbons?”
Here is evidence from the petitioners’ expert on the
point:
“2. Now, the ﬁrst claim reads as follows: I claim as my invention, ﬁrst, an
“ electric lamp for giving light by incandescence, consisting of a ﬁlament of carbon
“ of high resistance, made as described and secured to metallic wires as set forth.
“ Will you say what, in reference to the lamps which I have been speaking of, is
“ covered by that ﬁrst claim in this patent, construing it, as we must do, by the
“ speciﬁcations which precede the claim P”
“ Answer. I think that claim clearly covers any form of incandescent electric
“lamp, having in it a ﬁlament made of carbon and having a high resistance.
“ The word ﬁlament implies that it is a ﬁbre or thread. It must be acarbon of
“ high resistance, and must be connected by conducting wires.”
13
A carbon ﬁlament, even of high resistance, or even such
a ﬁlament, subjected to treatment by electric current, is not
a thing which the patentee has the exclusive right to pro-
duce. It can be made in Canada, by any person who wishes
to do so. It can even be used in Canada, for any purpose,
by any person, without the charge of infringement, unless
he uses it in an “ electric lamp.” It may be said that no
person wants to use such an article for any other purpose,
but I do not see that this in any way affects the argument.
If the making of a ﬁlament of carbon is not patented, but
only the construction of a lamp with such a ﬁlament, the
patentee is bound to manufacture his lamp, with the ﬁla-
ment in it, in Canada; but he is not, I think, bound to
manufacture his ﬁlament here. The one thing which is
covered by this patent, and of which the patentee has a
monopoly under the patent, is to make “an electric lamp
for giving light by incandescence, consisting of a ﬁlament ”
so made “and secured,” 810.; or, stating it another way, as
his claim does: “ The combination of carbon ﬁlament within
a receiver made entirely of glass, through which leading
wires pass, and from which receiver the air is exhausted,"
&c.; or, stating it still in another way, his claim covers “ a
coiled carbon ﬁlament or strip arranged in such a manner
that only a portion of the surface of such carbon conductor
shall radiate light, as set forth”; or, stating it in still
another way, his claim covers this--“ securing the platina
contact wires to the carbon ﬁlament and carbonizing of the
whole in a closed chamber,” &c.
While commenting on that which has been done in con-
nection with the ﬁlament, I may advert to one other con-
tention on which much stress was laid, but which does not
seem to me to have the importance which was attached to
it, namely, that the process of further carbonizing the ﬁla-
ment in Canada, after it is introduced into the bulb, by pass-
ing an electric current through it, is not described or
claimed in the patent and forms no part of it, and cannot
therefore be availed of to save the patent. On the contrary,
it is said, “ this is the subject of another patent, obtained
subsequently, by the same inventor.”
14
I do not so understand the position of the patentee. To
produce the patented article he has to use, among other
things, “a ﬁlament of carbon of high resistance,” and, if the
bamboo is completely carbonized, or even carbonized to a
materially greater degree, by the process applied to it in
Canada, I do not see why that treatment should be rejected
as immaterial, because the process is not a patented process,
or a process only patented by another patent. As well
might the process of baking. gone on with in the United
States, be rejected as immaterial against him because the
process of baking is not the subject of this patent. The
effect of the process not being covered by the patent is
merely that the patentee can make his ﬁlament of carbon by
any process which pleases him. He is entitled to credit for
carbonization, however it may be done, and the effect
which the subsequent patent has is to prevent ot/zer persons
from making “a ﬁlament of carbon of high resistance” by
enclosing it in a bulb. exhausting the air therefrom, and
treating it by the electric current, as described in the sub-
sequent patent.
If the argument presented in that objection were correct,
it would lead to the conclusion that none of the respondent's
lamps could be said to have been made in conformity with
the ﬁrst patent, because the carbon ﬁlament had been treated
by electricity in the manner described in the second patent.
But it is admitted that they were made in conformity with
the patent, and the only objection is as to certain things be-
ing done in the United States.
As I have said, we have simply to enquire, under the ﬁrst
patent (in so far as the ﬁlament is concerned), whether the
ﬁlament of carbon of high resistance was made in Canada
by any process whatever, and if the ﬁlament was made a
ﬁlament of carbon of high resistance in Canada by any
process whatever, I think it is impossible to say, as a matter
of law, that a ﬁlament of carbon of high resistance, used in
the lamps made in Canada, gas made in the United States
and not in Canada. It was, at least, family made in Canada,
and I think there would not be ground for cancelling the
15
patent, even if the patentee were bound to make them
here.
As I have already intimated, however, inasmuch as the
making of the ﬁlament is not patented by this patent, I think
that the ﬁlaments stand in the same position as all the other
articles which go to form the lamp. As to the other
articles, I have already given you my views.
I am putting this as though it were necessary, before the
patent could be upheld, to be satisﬁed that no one of the
articles which go to make up the patented article was im-
ported into Canada in the condition in which it was used in
the construction of the lamp; but I am not at all satisﬁed
that, even if what I have just said could not be afﬁrmed,
the patent could thereby be forfeited. I will discuss pres-
ently the decisions which have been given on that point;
but leaving them aside for the moment, I do not ﬁnd any-
where that the statute expressly imposes the penalty of
forfeiture for importing into Canada the various parts of
the invention for which the patent was granted, much less
for importing one of the parts. The words of the statute
are, “the invention for which the patent is granted,” and it
does not seem that the Minister, or his deputy, in admin-
istering that law, can enlarge the statute or add any words
to it, even in trying to prevent an evasion of the statute.
In considering and administering such a statute the Min-
ister or his deputy can only apply the penalty to the offence
which the statute forbids. He cannot apply it to an attempt
to evade the statute. In imposing penalties Parliament
must take its own measures to prevent evasion, and it would
be most unsafe to impose, against an evasion, the heavy
penalty which the law has levelled at the principal offence,
on the theory, which may or may not be correct, that
Parliament intended, by an equal penalty, to forbid the
doing of that which would be almost or quite an equivalent
of the principal offence.
To apply this idea to the case in hand, it would be unsafe
to apply the penalty of forfeiture to the importation of the
various articles out of which the patented article is pro_
duced, on the theory that Parliament, having prohibited
16
under this penalty the importation of “the invention for
which this patent was granted,” it may likewise have in-
tended to prohibit, under the same penalty, the importation
of the various articles out of which “the invention for
which the patent was granted ” is made. Even if we
thought the law had been violated by importing these parts,
it would be better to suffer the risk of the law being in-
fringed, for the time being, and to invite the attention of
Parliament to the subject, in order to have an explicit de-
claration of its will.
I do not wish it to be understood, however, that I ﬁnd
anything in the evidence as to the importation of these
articles into Canada, even of the partly carbonized ﬁlament,
to justify an imputation of bad faith, such as an intent to
evade the law and to evade the conditions of the patent.
There is much evidence to the contrary—much evidence
to show that, during the time covered by the complaint,
the lamp was introduced into Canada; that there was little
or no demand for it; that the production of the lamps, for
the small demand which existed, was attended with enormous
expense, as compared with their cost when imported, and
that if the lamps, and all the component parts, had to be
manufactured in Canada, it would have been utterly im-
practicable to have carried on the business at all.
There is evidence, also, of great practical difﬁculties in
carbonizing the ﬁlament, and of its being a delicate work, at
which skilful workmen often fail, and at which workmen
who have succeeded sometimes fail sometimes, without be
ing able to detect the cause of failure. This I have inti-
mated already in another connection.
As to one piece of the evidence brought forward by the
petitioners, to establish bad faith on the part of the respond-
ents—the evidence that the agents or servants of the re-
spondents declared that they were not operating in good
faith, I will have occasion to speak of it by-and-bye, when
I come to the question of the refusal to sell the patented
article in Canada, because it was in connection with the sale
of the lamps that the declaration was alleged to have been
17
made, although I admit that it has a bearing upon all the
charges brought forward.
I merely mention that piece of evidence now for the pur-
pose of showing that I have not forgotten it, and to show
that in attributing good faith to the respondents Iam doing
so subject to what may be said on that piece of evidence,
and to what will be said of it hereafter. In this connection
I must refer to the evidence of what was done in Canada, in
the construction of the lamp, for the purpose of calling
your attention to what I think is conclusive evidence that
the lamp has not been brought into Canada in pieces, and
that the manufacture of the lamp in Canada has not been
merely the “ assembling of the parts.”
If the parts were ready for use in the construction of the
lamp—ready to be assembled, and merely requiring to be
assembled in order to produce the patented invention, as
seems to have been the case with regard to the Bell Tele-
phone,-~we should have to consider the question as to
whether the invention for which the patent was granted was
not really imported into the country, although imported in
parts. We should then have to consider, with much doubt
and difﬁculty, as I have already suggested, whether the
penalty provided by the statute should not be attached to
that offence to prevent an evasion of the law; but, in my
view of the evidence, it is unnecessary to consider the case
from that point of view, and it would be improper to decide
it on any such principle.
There are various descriptions, in the evidence, of what
was done in Canada with the articles out of which the lamp
was made, in the production of the lamp, and in considering
what was so done we must remember, at every step, that
the patented article is “not the carbon ﬁlament, merely; not
the platinum wire, manufactured without irregularities,
merely; not the brass bottom pieces, merely; not the glass
bulb and glass tubing, merely; not the joining of a glass
bulb and a glass tube of the same melting and same quality
of glass; not the carbonizing of the ﬁlament; not the treat-
ing of the ﬁlament by an electric current; but it is, ﬁrst,
" an electric lamp ”-—this lamp, to give “light by incandes-
18
cence, consisting of a ﬁlament of carbon of high resistance,
made as described, and secured to metallic wires,” 810. The
quotations are from the ﬁrst claim of the patent. The
second, third and fourth claims of the patent I need not re-
peat, because, with the exception of the third, which is
practically out of the question (being for a kind of carbon
ﬁlament which was not used), all the claims are. included,
under one set of words or another, in the description of the
patented article as “an electric lamp,” although calling it by
some other name than a lamp—~the second claim using such
words as “a receiver made of glass,” and the fourth men-
tioning “ a closed chamber.”
Here, then, is the evidence of what. was done in Canada
to produce the patented invention.
Henry M. Byllesby, called by the petitioners, says:
“ Q. Then what was done with those parts which came from the United States
“ in the Montreal premises? A. Well, there was several operations. In the ﬁrst
“ place, the carbon ﬁlament which had been brought in from the United States was
“ attached to what are known as the leading-in wires, the leading-in wires having
“ been previously let into the lamp and properly sealed in. The glass bulb and
“ tube attached to it had the air e\hausted, the tube was sealed up, the connection
“ completed; the bases, which had also been brought in from the United States,
“ were then attached.”
John M. Robertson, another witness called in support of
the petition, is more precise. Beginning at that part of
his evidence in which he describes the work done in Can_
ada, we ﬁnd the following:
“ Q. What is the next step? A. The next step would he to mount that ﬁlament
“ into the platinum wires—the electrodes that pass through the glass are shown in
“ Figure 13, in Exhibit 13.
“ Q. That is, that platinum wires are attached to the ends of the carbon? A.
“ Yes; that is the process for the carbon. Then we go back to making that inside
“ part. We take a piece of glass, such as is indicated in Part I or B of Exhibit I 3.
“ Q. What do you do with that? A. It is heated in the glassblower’s ﬁre and
“ drawn out, such as is shown in Figure 2. Then that is cut in two and broken in
“the centre, as shown in Figure 3.
“ Q. How is it cut down ? A. It is drawn to a ﬁne thread and then broken
“ with a ﬁle or sharp instrument, as in Exhibit 3.
“ Q. What is the next thing done? A. The next thing done is to blow out, as
“ in No. 5- the expansion.
“ Q. How is that done? A. By merely heating it and blowing the breath in,
“ That swells it.
19
“ Q. Then? A. Then comes the cutting between the two bulbs or expansions.
“ You can blow one as well as two. They generally blow two to save labor.
“ Q. Then you separate them? A. Yes; it is cut off sharp, as you see it
“there.
“Q. While it is heated? A. Yes; it is cut off while it is heated, by scoring it
“with a ﬁle.
“ Q. How long would it take to make that cut? A. It is done in an instant.
“ Q. In the fraction of a second? A. Yes.
“ Q. Then what is the next? The next thing is to stick that platinum wire into
“the glass there It is partly fused, as in No. 9, the platinum being stuck on
“ while it is hot. That platinum wire, though, has had the copper brazed on it, as
“you see it in 8.}. Then after it is heated further, as in No. 9, and then squeezed
“with a pincers.
“ Q. That closes it in on the platinum? A. Yes; which makes it a tight joint
“ round on the platinum.
“Q. What is the next thing? A. The next is the pressing out of these wires
“ into the shape of II.
“Q. After the pincers had squeezed the ends of the glass together? A. They
“ are merely spread out to get the electrodes a certain distance apart, to conform
“to the shape the carbon has been baked to.
“Q. Up to this time the carbon has not been attached? A. No.
“Q. Then after having done that, what is the next step? A. The next process
“is attaching the carbon to the platinum, as shown in No. 13. That is done in
"various ways. Some use the plastic cement put on the joint and brought to a
“red heat in a small gas flame. Uthers use the copper-plating bath. Others use
“ the hydro-carbon bath.
“Q. There are various modes of doing that? A. Yes; different companies use
“dillérent processes. When you get to the stage as shown at 13, it is ready for
“what we call scaling in. That brings it over to 2!, I should suppose. Mean-
“ time, the bulb has been prepared for the reception of that.
“ Q. Now go back to the bulb? A. Fourteen, or ‘A,’ represents the ﬁrst condi-
“ tion of the bulb as it comes from the glass works. That bulb is put in a little
“ ﬂame by some, and has the glass ﬂame brought under the base of it.
“ What you would call the apc\ or top ? A. Yes; the gas ﬂame is simply
"heated at that point, and by the rod that is brought down by hand motion that
“ tit is formed, as shown in [6. This tit is then cut as you see in 17; then the
“ piece of glass, as at letter ‘ C,’ is melted on to make a connection with that tit,
“ as in [9.
“Q. So as to form part ofthe bulb itself? A. Yes.
“ Q. Then it is prepared for e\haustion ? A. Yes ; the bulb is cut off to give
“ the proper length, and it is opened out.
“ Q. How is the cutting of it done? A. By the scratching away with a ﬁle.
" Q. Is it heated ? A. Not necessarily.
"Q. Then it is heated and opened? A. It is heated and opened out, as you
“see in No. 20, for the reception of 13, as shown in 2! ; then the heating is con-
“ tinued, and it is sealed in, as shown in 22.
“Q. What do you mean by sealed in? A. The glass, Exhibit 13, is melted
“ while inside the globe, Exhibit 22, and they are both heated and stuck together
“ and made air tight.
20
“ Q. The ﬁlament is inside the bulb? A. Yes ; but the ﬁlament is inside. The
“next process will necessarily be this, No. 24, that is, cutting off the extra length
“ of the projecting stem and set the electrodes free, so that they can be held to the
“ proper point. A little tip of glass is put on there to hold it in position, that is, to
“keep it from twisting or turning. The little tip you see is simply a little dab of
“melted glass. Then the lamp is ready to go to the air pumps, as represented
“in 25.
“ Q. That is, the pump is attached to that stem? A. Yes ; the object of the
“ stem is to attach it to the pump. There are pumps of various kinds. This re-
“ presents part of a sprinkler pump~a mercury pump, in which a drop of mercury
“ carries the air down n ith it. After that is done the stem is melted, as shown in
“ 26. ~
“ Q. That is, the stem through which the air has been exhausted is melted off
“ and sealed by being brought together ? A. Yes.
“ Q. That leaves the bulb avacuum? A. Yes ; that point could be ﬁnished
“ off a little better, so that there would be no danger of its breaking. That is a
“matter differently done by diﬁ'erent parties.
“ What is the next step in connection with making it useful? A. The next
“ step is to put on the brass base, called a bottom, shell, or base by different com-
“ panics.
“Q. That is done by either cement or plaster of Paris, or other similar sub-
“ stance? A. By somc plastic material.
“ Q. The lamp is then ready for use? A. Yes ; it is a ﬁnished lamp.”
This lamp being the invention for which the patent was
granted, the one point which you have to decide, under
the charge of importing into Canada is, whether that elec-
tric lamp was imported into Canada, and not manufactured
in Canada. 1 think it cannot by any possibility be said to
have been imported into Canada and not manufactured in
Canada.
Considering, however, some of the views which have
been entertained and put forward, as to the effect, on a
patent, of the importation of the parts of the invention for
which the patent was granted, and as to the effect of the
assembling of the parts in Canada, we can safely go a step
further than I have gone. We can safely enquire whether
it can be truly afﬁrmed that the introduction of bulbs,
tubes, wires and ﬁlaments were the introduction of parts of
the lamp. Certainly, portions of the bulb, as imported,
were used in the lamp; portions of the tube, portions of
the wires and the ﬁlament, after being otherwise treated in
Canada; but it is impossible to say of any of these articles,
excepting the ﬁlament, that when they came into Canada they
21
were parts of Edison’s electric lamp. They were simply
the materials out of which the lamp was to be made.
The bulbs and-tubes were cut off to the required sizes
and were used in forming a chamber from which the air
was exhausted in order to form a vaeuum,in which the
light was to be given forth, but they were not necessarily,
when introduced, to be considered as parts of the electric
lamp. They were useful, as I have said, for other purposes,
and were even used in the manufacture of other lamps than
those of Edison.
To describe the wire which was brought in, on spools
and in coils, as parts.of an electric lamp, would be a mis-
representation, altogether out of the range of the accuracy
which is necessary in dealing with a legal question; and
although it appears, as regards the ﬁlament, that it is not
used for any other purpose, it may be so used for anything
for which it is or may become capable of being used, or for
which it may be hereafter adapted; and, so far as this
patent is concerned, the patentee had no monopoly as to
the production or use of the ﬁlament, as I have elsewhere
shown.
This seems to show conclusively to my mind (I) that the
invention for which the patent was granted was not im-
ported, but was manufactured in Canada, and (2) that the
invention for which the patent was granted was not im-
ported in parts.
There remains to be considered the charge that the
patented article was not manufactured in such a manner
that any person who desired to use it could obtain it at a
reasonable price. There is much evidence on this point.
There is evidence that the respondents, at one time, refused
to sell the lamps to persons who did not intend to use them
with the Edison plant.
It seems that the Edison plant is simply a description of
dynamo which Mr. Edison uses. It is not a machine of
which he has the patent or any monopoly. The dynamos
which are called the Edison plant can be purchased in
Canada and in the United States. The explanation made
in the evidence, is that the electric lighting business was
2‘3
then in its initiatory stages, and that it was deemed by the
Edison Company most important that the success of the
lamp should not be prejudiced in the public estimation by
its being used in connection with plant which they believed
it could not be used with successfully.
Under the charge of refusing to sell at a reasonable price,
and as to the evidence of a refusal to sell, except for use on
the Edison plant, the questions to be determined are :—
Is the evidence to be relied on which declares that this
was the only limitation to the sale? and
Was the limitation made in good faith, in order to pre-
vent the success of the lamp being destroyed and to prevent
public opinion being prejudiced against it at a critical stage
of the electric light business?
Was it reasonable?
Or, was the whole business carried on merely as a sham
to avoid the forfeiture of the patent, while the company had
no intention of really doing business in Canada?
One witness, who at the time in question was a lad em-
ployed in the factory, says that he heard one of the officers
of the establishment say to another that they were not
making lamps to sell, but were only “fooling the Cana-
dians.” The persons between whom this conversation is
alleged to have taken place do not remember it, but they
and several others testify that there was no refusal to sell,
except by some one or more persons who had duties to per-
form besides selling, which was entrusted to others in the
establishment, and that the only qualiﬁcation ever imposed
was as to the use of the Edison plant.
I am inclined to think that the evidence on this point, in
exoneration of the respondents from the imputation of bad
faith, should be accepted. The burden of proof was on the
petitioners to make good the charge of bad faith and of re-
fusal to sell; and, 111 view of the explanations which some
of their ofﬁcers have made on this point,l see no good
reason to doubt that the company were manufacturing
lamps to sell, and intending to do so in good faith.
1 think that the removal of their factory from Montreal
to Hamilton, where greater facilities were expected and
23
obtained, the enlargement’of their business there, the con-
tracts which the company entered into and fulﬁlled for
lighting at Cornwall, in 1882, and afterwards, and the en-
gagement of a person supposed to have a wide acquaintance
in Canada, and therefore able to introduce the lamps into
the different parts of the Dominion, the employment of
travellers, and the number of lamps produced, are all indi-
cations of good faith. -
At Hamilton the business has steadily progressed, as the
following ﬁgures will show :~—
- Lamps Made.
From February, 1884, to August, 1886-
23,189
do August, I886, to February 1887 . _ _ . _- 6,613
do February, 1887, to August, 1887--_-- 9,447
do August, 1887, to February, 1888_-_-_ 12,718
do Febr11ary,,1888, to August, 1888--- _ _ 9.893
do August, 1888, to November, 1888__-- 4,650
._—_ .-_
Total . . _ . . . - - - _ - - - - - - - - - - - — - - - -__§§1§_l9
As to. the second question, I see no reason to doubt the
good faith of the company in wishing to sell only to those
who would use the Edison- dynamo. There is evidence
that in the opinion of the respondents“ officers the lamps
would not work successfully on other plant. Here is their
explanation :
“ It has been said that general instructions were given, and that it was
“ against the policy of the Edison Company to sell lamps to he used on any plant
“ except their own. Now, what have you to say upon that point? \Vere there
“ any such instructions given to your Canadian agents? A. I never heard of any
“ such instrUctions. I know lamps were sold to he used on all sorts of plants.
“ There is one feature peculiar to the business. We sell a lamp, and it burns a
“ certain number of hours under normal conditions; but if that lamp is not under
“ normal conditions it may burn a very materially shorter number of hours. The
“ addition of three candles on a sixteen-candle power lamp will either double or
“ half its life. The eye of most people could not detect the addition of three
“ candles in a lamp. My judgment is that much more than that to one coming
“ out of the darkness into the light, of three and even six candles additional, the
“ distinction would be hard to make. The result is that lamps live a short or
“ long'life, according as they are used, and the Edison Company determined to
“ see that their lamps were properly used. The lamps being run badly they break
" rapidly, and the Edison Company would receive a bad reputation ‘vin conse.
24
“ quence. We had an experience of this kind in Philadelphia. We sold the Ac-
“ cumulator Company our lamps, and they broke rapidly. The plant was badly
“run. The lamps were of perfectly good quality, but the result was that the
“ Pennsylvania ofﬁcials said that the Edison lamps were no good, and this affected
“ negotiations for the formation of a company in Philadelphia. They were out of
“ our power, and we could not defend ourselves. It was for this reason that the
“ Edison Company always insisted on knowing to whom, they were sold. I think
“ in Canada they have sold repeatedly to outside companies.”
The petitioners endeavor to support: their charge of bad
faith by evidence that the expenditurein putting up the
plant was very heavy, as compared with what was spent in
putting up the lamps to be worked, by the plant, and tyhat
there was more proﬁt: on the sale of the plant than on the
sale of the lamps. The petitioners have failed, however, to
show that any stipulation was made, or attempted to be
made, by the agents of the respondents, that persons who
were negotiating for lamps should be supplied by Z/zem with
the Edison plant. On the contrary, the single limitation
sought to be imposed was that the lamps should be used on
Edison plant, and this was withdrawn, subsequently, as
the petitioners allege, because the respondents became
alarmed, by learning from the Bell Telephone decision the
effect: of a refusal to sell a patented invention; or, as the
respondents allege, because the merits of the invention had
become better known and there was not so much reason to
fear a prejudice in the public mind.
It was urged by counsel for the petitioners that in view
of the provisions of the Patent Act as to the invention
~ being produced “in‘such a way that it can be sold to any
person desiring to purchase the same,” the patentee can
impose no limitations, but must sell at a reasonable price to
all comers. '
I think that to lay down the rule thus broadly would be
going too far. Admitting, what was urged by counsel for
the petitioners, that a purchaser has the right to buy the
patented invention and then destroy it if be please, I do not
think it unreasonable that the patentee of an article of deli-
cate and skilful manufacture, from which he can only reap
the reward of his (labor and expenditure by its being
esteemed successful bythe public, is bound'to sell his in-
25
vention to those who, by unsuitable uses, would fail to
derive beneﬁt from it themselves, and would create the im-
pression, in the public mind, that the invention was a failure,
at a time when public opinion was in suspense. When any
such case arises, and we ﬁnd the patentee attaching a limi-
tation, honestly, with that view, I do not think it would be
right to punish him by forfeiting his patent. YVe should
in every case ascertain, as carefully as possible, whether
good faith exists, and we should not punish, by forfeiture of
patent, the limitation so imposed, unless we thought the
limitation was imposed by the patentee really for the pun
pose of evading compliance with the statute which requires
him to sell the patented invention at a reasonable price.
Probably the evil which that part of the statute was prin-
cipally intended to prevent was the exaction of exorbitant
prices under the monopoly secured by the patent. The
respondents had much to fear from the lamps appearing to
be a failure. The plan on which they relied was to set a
company on foot to work the patent in Canada. The busi-
ness was in its infancy; the public had not yet acquired
conﬁdence in the light, and competitors were in the ﬁeld-
interested in depreciating the Edison lamp—competitors
who were not hampered by any condition as to manufac-
turing in Canada, but who relied for their supplies on the
factories in the United States.
To support the charge of refusing to sell, there was
evidence that the respondents asked, in some cases, as high
as three dollars or four dollars per lamp, to persons who
would not use the Edison plant; but the more settled rule
was to ask $1.2 5 in such instances, while the price to persons
who used the Edison plant was $1.00, with a guarantee of
the duration of the lamp. It is said that these higher prices
were unreasonable. They were not unreasonable if the
condition which they were intended to enforce was not un-
reasonable. On that point I have already stated my view ;
but, in justice to the respondents, I must add that none of
these prices reached the actual cost of producing the
lamps in Canada. All this was very different from the Bell
Telephone case, where there was a distinct refusal to sell on
I
26
any terms, the answer being, “ We do not sell telephones ;
we lease them.”
It only remains for me to inform you of the view which I
take of the arguments pressed upon us by counsel for the
petitioners with regard to the patent cases which have al-
ready been decided by your department. .
The ﬁrst is the case of Barter 125. Smith. As the decision
in that case was to uphold the patent, there is not much that
can be relied on by the petitioners. There are many ex-
pressions which are strongly in the direction which my
opinion has taken. Among others is the observation which
calls attention to the unreasonableness of insisting that the
patentee should be called on to produce his invention at all
times and places in Canada, without any regard to the de-
mand for the invention in the market.
The case of the Bell Telephone is more in point. A
glance at the decision will indicate to you how far (and it
seems to have been very far), the patentees carried the at-
tempt to evade the law by introducing the patented machine
in pieces, with the intention of merely assembling these
pieces in Canada, besides positively refusing to sell their in-
struments in Canada. Without saying whether I could have
been able to concur in the conclusion arrived at in that case
or not, I have simply to observe that the introduction of the
parts in this case bears very little analogy to the introduc-
tion of the parts of the telephone, and that the process of
manufacturing lamps in Canada was widely different from
the assembling of the parts in constructing the Bell Tele-
phone here.
The case of the Hancock Inspirator, decided in January,
1886, was much relied on by counsel for the petitioners, as
going farther than the petitioners were asking you to go to
forfeit the present patent. I do not regard that as a deci-
sion in point. The one point which the Deputy Minister
there decided was that when a patent was a patent of a new
combination of old elements the patentee might not import
the old elements, and simply apply his combination to per-
form the functions described in the patent. The Deputy
Minister forfeited the patent because he thought the patentee
27
was bound to manufacture, and not import, all the elements,
as well as to apply the combination in Canada. The ele-
ments in that case were themselves machines, and the
Deputy Minister seems to have entertained the view that
the patentee was bound to manufacture the machines in
Canada, although his patent was only for a combination of
those machines.
While I do not think the case to be one in point, or one
from which any inference can be drawn to affect this case,
unless it be an inference from the fact that a very severe
view was taken, at that time, by the Deputy Minister of
Agriculture, of the requirement in the patent law as to the
manufacture in Canada, I must add, as respects that infer-
ence, that, if the case were admitted to be one in point, I
should have very great difﬁculty indeed in advising you
that the Hancock Inspirator case was correctly decided, or
that it should be followed.
It results from all that I have said that in my opinion the
petition should be dismissed and a decision pronounced that
the patent in question is not void.
I have the honor to be,
Faithfully yours,
JOHN S. D. THOMPSON,
1U z'lzz'sfer 0 f ] usfz'ce’.
To the Honorable
JOHN CARLING,
Minister of Agriculture.
[T2957] .
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