Chapter 5

It is contended by the opponents that the patent No. 451 has no utility or value. I am inclined to the opinion that the utility of the improvement specified in this patent is, of itself, small, compared with the improvements covered by the other patents of Hussey now before me, which are all of very great utility, and two of them indispensable in the present state of the art. Still since the novelty of the improvement claimed in No. 451, is admitted and is proven by the testimony of Henry B. Renwick to have some utility as one of this series of patents, I think it has sufficient utility to justify an extension.

[Sidenote: Mr. Hussey Did Not Abandon His Invention]

The contestant's counsel have argued from the testimony of Lovegrove, that Hussey abandoned his inventions to the public by having them on sale more than two years before applying for a patent. The testimony does not sustain this point. Besides, an inventor does not abandon his invention to the public by constructing a machine embracing it, in the same factory where he makes and sells other machines. Nor by using it experimentally in such a factory or elsewheres. Nor by keeping it in such a factory from the autumn of one year to the harvest of the next year. Nor by doing all or any of these things more than two years before his application for a patent.

The statement of receipts and expenditures is unusually full and in detail, more so than is necessary to fulfill the requirements of the law.

There are two classes of expenditures and two corresponding classes of receipts, _viz._:

1st. Expenditures and receipts on account of the manufacture and sale of Reapers and Mowing Machines embracing the patentee's improvements.

2nd. Expenditures and receipts on account of the sales of Patent rights and licenses, and compromise of infringements.

The Patentee manufactured and sold about 2,000 machines, and a few other articles at a cost of materials and labor $195,292.88 Shop and Tools 12,500.00 One-quarter of patentee's time and expenses 9,008.22 ___________ $216,801.10

The receipts on account of the sale of these manufactures were:

Cash for Reapers $216,607.90 Cash for parts of Reapers 22,416.58 Notes and Book Accounts 11,388.23 Cash for Corn Crushers 1,135.25 Discount and Interest 2,327.84 ___________ $253,875.80

The result of the manufacturing business is an excess of receipts over expenditures of $37,074.70. This statement, however, allows nothing for manufacturer's profits. An allowance for such profit ought to be made but in this case the object is to eliminate from the gross receipts such profits as have in any manner accrued from or by reason of the inventions claimed in the patents. Now receipts or profits that result from business talents or skill in manufacturing or in financeering are not receipts or profits in any manner accruing from or by reason of an invention. In the case of Seymour and Morgan vs. McCormick-Howards Reports Vol. 16 p. 480, the Supreme Court of the United States held that the ruling of Judge Nelson that the whole profits of the manufacture of Reaping machines in which one small part of the machines infringed a patent was to be considered as accruing from the use of the patented part was erroneous, and that a reasonable manufacturer's profit for the use of the Capital so, in addition to the actual cost of the machine must first be deducted from the gross receipts, and if then there was any excess, that might be assigned to patents. This decision I should deem binding and conclusive upon the subject even if I did not think that the values of business capital and talent are as fairly charges against the receipts of business as the values of a business house or tools.

[Sidenote: An Inadequate Profit]

In this case there is only an excess of $37,074.70 of the receipts over the expenditure or something less than 14 per cent upon the gross amount of sales. This is a very inadequate profit for manufacturing and selling, but it is all there is, and it is all that I can allow.

If the excess of the receipts over the expenditures had amounted to three times fourteen per cent, I should have had no hesitation in allowing the whole of it for manufacturer's profit, and should not have deemed it more than a reasonable allowance in view of the testimony of Long, which shows that his firm have made a profit of over fifty per cent after paying patent fees, on their manufacture of reapers.

It seems to be supposed from the reference which has been made to Commissioner Holt's decision in the case of McCormick's application for the extension of his patent of 1845, that he entertained views at variance with those I have expressed as to the justice of allowing manufacturer's profits as a part of the expenditure, and as an offset against the receipts, but a careful examination of that opinion will show clearly that Mr. Holt was not willing to allow a charge for the use of Capital, and for wear and tear of machines (which are the Constituent elements of a manufacturer's claim to allow for profit) and then, again allow a second or duplicate charge for the same things under the name of manufacturer's profits. This is the extent to which Mr. Holt goes, and I fully agree with him.

The expenditures on account of the patents and the sale of rights and licenses under the same are:

For three quarter of patentee's labor and expense $27,024.68

For sundry legal and traveling expenses 44,562.88 __________ $71,587.56

The receipts on the same account are:

Cash for licenses, sale of rights, etc. $92,788.38

Notes and unsettled accounts 23,748.89 License fees estimated for 1861 10,000.00 ___________ $126,537.27

showing that the receipts exceed the expenditures by $54,949.71 or $13,737.42 for each of the four patents.

This I can have no hesitation in pronouncing to be a totally inadequate compensation for inventions of such great value and importance.

After a most laborious examination and careful consideration of the whole matter, it appears to my full and entire satisfaction, having due regard to the public interest therein, that it is just and proper that the term of the said reissued patents No. 449, No. 451, No. 742, and No. 917 should severally be extended by reason of the patentee, without fault or neglect on his part, having failed to obtain from the use and sale of his said inventions a reasonable remuneration for the time, ingenuity and expense bestowed upon the same and the introduction thereof into use.

[Sidenote: Hussey's Inventions the Basis of all Reaper Manufacturers Profits]

The list of licenses under these patents show the acquiescence of the principal manufacturers in the justice of Hussey's claims. The list shows that the manufacturers of Reapers have made large profits, and that Hussey's improvements are the foundation of their success. It is certainly just and equitable that Hussey's heirs should be allowed to participate in the advantages of using his own inventions to an extent more nearly commensurate with the merits of those inventions.

[Sidenote: A Merited Tribute from the U.S. Patent Office]

The character of the opposition to these applications, in which but a single manufacturer has entered an appearance is such, as greatly strengthens this view, and I feel constrained to regard this tacit assent, of the great body of manufacturers to these applications for extension, an additional evidence of the soundness of my own conclusions. As it is also a fitting and merited tribute to Obed Hussey, now in his grave, for the invaluable contributions his genius and industry have made to the improvements of the age.

The said four patents, Nos. 449, 451, 742 and 917, are accordingly extended for the term of seven years from the 7th day of August, 1861.

S. T. SHUGERT, Acting Commissioner of Patents. United States Patent Office, Mar. 1, 1861.

A BRIEF NARRATIVE OF THE INVENTION OF REAPING MACHINES

And an Examination of the Claims for Priority of Invention

The object aimed at in this examination is to ascertain as far as reliable evidence within reach will establish the fact--and before the evidence may be lost--to whom belongs the credit of first rendering the Reaping and Mowing Machine a practical and available implement to the American farmer; not who _theoretically invented_ a machine for the purpose, that may have worked an hour only, and very imperfectly for that short period, and was then laid aside; but who rendered it an operating and efficient machine that was proved by successive years in the harvest field, capable of doing its work, and doing it well; better than either the scythe or cradle.

The object is _not_ to detract from the merits fairly claimed by any inventor; but it is to examine into some of the rival claims, furnish the evidence that has satisfied our own minds, and leave it for others to judge for themselves. We would not intentionally deprive an inventor of his often dearly bought and hard-earned fame--the creation of his own genius--for it is more prized than even fine gold by many. But it is equally just that merit should be acknowledged, and the meed of praise awarded, where it is honestly and fairly due; and to this end we propose and intend to examine into the evidence closely and critically. It may also be right to remark that we have no private or pecuniary interest whatever, in these, or any other patent claims.

[Sidenote: Attempts of the Ancients]

As to the theoretical portion of the business, the enquiry might be greatly extended; indeed for past centuries, as we have imperfect accounts of Reaping Machines being used by the Romans. If the ancients were successful in making a practical implement for Reaping, by horse, or ox power, as some ancient writers assert, we certainly have no correct and reliable account of a machine that would be considered efficient or useful at the present day; a machine to save or tear off the heads only--as described by Pliny and Palladius--would more properly be termed a gathering machine, and not at all suited to the wants and habits of modern farmers.

[Sidenote: English Endeavors]

It was not until near the close of the past, and within the present century, so far as we can learn, that the subject again claimed much attention of the inventive talent of either this, or foreign countries. Of some half a dozen or more attempts made in Great Britain, and recorded in Loudon's Encyclopedia of Agriculture, the Edinburg Encyclopedia, and other similar works, all, or nearly all, relied either upon scythes or cutters, with a rotary motion, or vibrating shears. And although there was "go ahead" about them in one sense of the term, as it was intended for the "cart to go before the horse," none of them appeared to have gained, or certainly not long retained, the confidence of the farmers; for at the exhibition of the "World's Fair in London," the whole Kingdom could not raise a Reaping Machine;--a practical implement which was considered worth using and exhibiting.

[Sidenote: English Failure]

That the idea was obsolete there, and had been unsuccessful, is clearly proved by the fact that the English journals and writers of that period, without a single exception, spoke of the American Reapers--after the trials!--as "completely successful"--"taking every one by surprise"--"their reaping machines have astonished our agriculturists"--"few subjects have created a greater sensation in the agricultural world than the recent introduction into the country of the reaping machines"--the "curiosity of the crowd was irrepressible to witness such a novelty, even to stopping the machine, and trampling the grain under foot," etc., etc.--Much more and similar evidence is at hand; but _better_ need not be produced to prove the entire failure of reaping machines in Great Britain, as late as 1851. We would also refer the curious to Rees' Cyclopedia, for a very brief account of what had been effected;--a few paragraphs only are written on reaping machines, but several pages are compiled as to the use of the scythe, sickle or reap hook, and reaping _fork_. The Doctor refers to Plunknett's Machine by name, as being "somewhat on a new principle, the horse drawing the machine instead of pushing it forward as was the old mode of applying the power." The machine is fully represented in the Farmers' Dictionary; and he winds up the account as follows: "But the success with which they have been attended has hitherto been far from complete;" again, "Other machines of this kind have still more lately been invented by other persons [meaning of course his own countrymen] but without answering the purpose in that full and complete manner which is necessary in this sort of work."

The Doctor undertakes to tell us _what is wanted_, but fails entirely to inform his readers _how to do it_. That John Bull had not done it is clearly established; but Brother Jonathan, the "Live Yankee," as John calls his cousin, has solved the problem; and the solution is so simple, when you know how to do it! that it is marvelously strange no one for centuries had before struck upon the right key.

Philip Pusey, Esq., M. P. and F. R. S.--the chief manager of the London Exhibition--admits the failure, though apparently reluctantly; but the source of his information, in writing about the American machines, was interested and defective; and when he again writes on this subject he will be better informed. He says: "At the opening of this century it was thought that a successful reaping machine had been invented, and a reward had been voted by Parliament to its author. The machine was employed here and abroad, but from its intricacy, fell into disuse. Another has been lately devised in one of our Colonies, which cuts off the heads of the corn, but leaves the straw standing, a fatal defect in an old settled country, where the growth of corn is forced by the application of dung. Our farmers may well, therefore, have been astonished by an American implement which not only reaped the wheat, but performed the work with the neatness and certainty of an old and perfect machine. Its novelty of action reminded one of seeing the first engine run on the Liverpool and Manchester railway in 1830. Its perfection depended on its being new only in England; but in America the result of repeated disappointments and untired perseverance, etc."

[Sidenote: English Claims]

We propose to prove, and by better evidence, and disinterested too, than he then had, that in 1833, near the date of "the first engine run on the Liverpool and Manchester railway in 1830," the American machine cut the "corn" just as perfectly, with equal "neatness and certainty" as did the "Novelty" or "Rocket" pass over the Liverpool and Manchester railway. We shall again recur to English authority. John Bull is a right honest and clever old gentleman in the main; but he is rather prone to claim what he has no title for--inventions, as well as territory. We are willing to give him what he can show a clear deed for, but no more. He beat us by one year only in the Locomotive; but we fairly beat him eighteen or twenty in the Reaping Machine; and yet some of his writers contend to this day that we "_pirated_" from Bell and other English inventors all we know!

[Sidenote: English Inventors and Their Mistakes]

The excitement and sensation thus produced by the American Reapers, caused renewed efforts on the part of English inventors; some who had near a quarter of a century previously, been endeavoring to effect this "great desideratum," to use an English editorial; and the most conspicuous of these was one invented by the Rev. Patrick Bell, of Scotland. Of the half a score or more and previous inventors in Great Britain--Boyce, Plunknett, Gladstone of Castle Douglass, Salmon of Waburn, Smith of Deanston in Perthshire, etc., etc.--none were waked up from their Rip Van Winkle slumbers; or if they were, the world is not advised of it. They all used revolving scythes, revolving cutters, or shears instead. Several trials were made with Bell's in 1828 or 1829; and a very full and minute description with plates, was published some 24 or 25 years ago, and may be found in Loudon's Encyclopedia of Agriculture.

It was, however, too complicated, too cumbersome and expensive, performed too little service, and required too much tinkering and repairs to be viewed as a practical and available implement.--The English farmer found the sickle or reap hook preferable, for it was everywhere resorted to.--The cutting apparatus of Bell's consisted of shears, one half stationary, the other vibrating, and turning on the bolt that confined them to the iron bar which extends across the front of the frame. The vibrating motion was given by connecting the back end of one shear to a bar--making the bolt the fulcrum--and which was attached to a crank, revolving by gear to the driving wheels.

[Sidenote: Bell's Machine]

A reel was used to gather the grain to the shears, and adjustable, back and forth, and higher or lower, to suit the height of the grain. A revolving apron delivered the grain in a continuous swath; and the team was attached to the rear of the machine, _pushing_ it through the grain.

We have been more minute in the description of Bell's machine, because it may have been the foundation of some of the early, and nearly simultaneous attempts made in this country. In fact it does not admit of doubt that several were nearly identical with Bell's in the use of the shears and reel, though with much more simple gearing, and in the general arrangement. Whether they were original inventions, cannot be ascertained. In this country, from 1800 to 1833 out of some 15 or 20 patents granted for "cutting grain" and "cutting grass," only four appear to have been "restored"; i.e. technically speaking, "not restored" in models and drawings after the burning of the Patent Office in 1836. Many, if not most of them, were probably improvements in the grain cradle, and mowing scythe; though the names are preserved, there is no record to show for what particulars the patents were granted. There can be no doubt, however, that the inventors considered them valueless, as they were "not restored," though Congress voted large sums to replace the burnt models and drawings, without any expense to the parties. Of those restored James Ten Eyck's patent is dated 1825, Wm. Manning's in 1831, Wm. & Thos. Schnebly's in 1833, and Obed Hussey's also in 1833.

James Ten Eyck used an open reel; not only to gather the grain, but his cutters or shears, were attached to, and revolved with the reel;--very much, if not exactly on the principle of shearing cloth.

William Manning used another form of cutters, and quite different from James Ten Eyck's--he likewise used fingers or teeth to support the grain during the action of the horizontal cutters.

William and Thomas Schnebly of Maryland also used the reel, with shears as cutters, very similar to Bell's.

Abraham Randall, or Rundell, of New York (for the name is spelled both ways), was another of the early inventors. His patent of 1835 is not restored, though it is stated his machine was experimented with as early as 1833 or 1834. He also used the reel, and his cutters, it is said, were similar to Bell's--using shears.

T. D. Burrall, of New York, was also one of the early inventors, about 1832 or 1833, but we believe professedly after Bell's, so far as to use a reel and shears.

[Sidenote: None Successful]

[Sidenote: Hussey's Machine an American Triumph]

None of these machines, however, Hussey's excepted, were successful, or were used any length of time; nor is it necessary here to refer particularly to other attempts, about this time, or indeed prior to this period, for they were equally unsuccessful; and their inventors cannot claim the merit of doing a thing, that was not in fact performed--making an efficient and successful Reaper. We may here remark, however, that so far as now known, no machine like Bell's, on the shear or scissor principle, has succeeded in this country; or as we believe, is ever likely to succeed. We have seen a number by different inventors, and all have failed to give satisfaction. They may work well for a very brief period and with keen edges; but as they become dull, the shears are forced apart by the straw and grass--particularly the latter, and the machine fails, as it inevitably must do, in its allotted duty, and for very obvious reasons. If the shear rivet or bolt is kept tight there is too much friction; if loose enough to play freely it is too loose to cut well; and, lastly, it is too liable to wear at the most important point of the whole machine. During the harvest of 1853 in England every effort was made to uphold Bell's machine; in some cases prizes were awarded to it, though evidently partial; for in the face of these awards some who witnessed the trials, and had used Bell's machines, laid them aside and purchased Hussey's. At the close of the season, as we learn from reliable authority, even the engineers who operated Bell's, frankly admitted that the American machine as exhibited by Hussey, was the better implement, owing to the arrangement of the guards and knives; Bell's required so much tinkering, that several machines were required to cope with one of Hussey's. At the recent harvest (1854) the Mark Lane Express acknowledges that the Royal Agricultural Societies' show at Lincoln, Bell's machine was "at last fairly beaten" by Hussey's, including McCormick's, and Hussey's machine received the prize over all others. It is just, however, to add, that far as we consider Bell's machine behind some of the present day, yet complex and cumbersome as it was, it combined more of the essential features of success than any Reaper that preceded it.

We now come to 1833, the date of Hussey's patent; and to 1834, the date of C. H. McCormick's first patent. These were known and admitted by all to have been the rivals for popular favor and patronage, from about the year 1844 or 1845 to the opening of the great Industrial Exhibition in London, in 1851. To these, therefore, the enquiry will be more particularly directed.

We must, however, refer back for a brief period to 1831; for although C. H. McCormick's first patent was dated in 1834, yet when he applied for his extension in 1848 he alleged that _his invention_ was prior to Hussey's, as he had invented a machine in 1831, two years before the date of O. Hussey's, and three years before the date of his own patent. The evidence produced _written and prepared_ by C. H. McCormick (and now on file in the Patent Office) was deemed inadmissible and informal by the Board, and it refused to go on with the examination either as to priority or validity of invention without notice to Hussey--his patent being called in question by McCormick--to be present when the depositions were taken.