Guest Post by Ed Ergenzinger, JD, PhD, Director of Intellectual Property & Legal Affairs, Duke Human Vaccine Institute
With the conversion of the U.S. patent system from a first-to-invent regime to a first-to-file regime, interference proceedings are set to be replaced by derivation proceedings. As patent practitioners contemplate the implications of this and other changes to the law with respect to their practices, I offer the following light diversion describing an interference that involved a certain well-known author/inventor.
Many people don't know that Samuel L. Clemens, better known as Mark Twain, was also an inventor who was granted three patents during his lifetime. He was a strong believer in the value of the patent system, as evidenced by his book A Connecticut Yankee in King Arthur's Court in which the main character states, "...the very first official thing I did in my administration – and it was on the very first day of it too – was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab and couldn't travel anyway but sideways or backways."
One of Twain's inventions involved an adjustable strap for tightening clothes in order to avoid having to use uncomfortable suspenders. It was this invention that became the subject of an interference proceeding in 1871 between Twain and Henry C. Lockwood of Baltimore. As part of the proceeding, the parties had to file preliminary statements detailing the essential dates and facts relating to their respective cases.
But we're talking about Mark Twain. He couldn't just submit a dry legal document with numbered paragraphs. That wasn't his style.
No – instead he wrote a short story. It was sent from Hartford, CT to "Hon. M. D. Leggett, Com'r of Patents, Washington" and was dated Oct. 6, 1871:
Concerning Mark Twain's Elastic Strap.
The idea of contriving an improved vest strap is old with me; but the actual accomplishment of the idea is no older than the 13th of August last (to the best of my memory). This remark is added after comparing notes with my brother.
For four or five years I turned the idea of such a contrivance over in my mind at times, without a successful conclusion; but on the 13th of August last, as I lay in bed, I thought of it again, & then I said I would ease my mind and invent that strap before I got up - probably the only prophecy I ever made that was worth its face.
An elastic strap suggested itself & I got up satisfied. While I dressed, it occurred to me that in order to be efficient, the strap must be adjustable & detachable, when the wearer did not wish it to be permanent. So I devised the plan of having two or three buttonholes in each end of the strap, & buttoning it to the garment - whereby it could be shortened or removed at pleasure. So I sat down & drew the first of the accompanying diagrams (they are the original ones).
While washing (these details seem a little trivial, I grant, but they are history & therefore in some degree respect-worthy), it occurred to me that the strap would do for pantaloons also, & I drew diagram No. 2.
After breakfast I called on my brother, Orion Clemens, the editor of the 'American Publisher,' showed him my diagrams & explained them, & asked him to note the date & the circumstances in his note-book for future reference. (I shall get that note of his & enclose it, so that it may make a part of this sworn evidence.) While talking with him it occurred to me that this invention would apply to ladies' stays, & I then sketched diagram No. 3.
In succeeding days I devised the applying of the strap to shirts, drawers, &c., & when about to repair to Washington to apply for a patent, was peremptorily called home by sickness in my family. The moment I could be spared, however, I went to Washington & made application - about the 10th or 12th of September, ult., I think. I believe these comprise all the facts in the case.
Saml L. Clemens
Twain won. His preliminary statement is believed to be the only one of his stories for which there is an affidavit supporting its truthfulness.
In addition to the patent he received for the elastic strap, Mark Twain was granted two other patents during his lifetime. One was for a historical trivia game, and the other was for a self-pasting scrapbook with a dried adhesive on the pages that only needed to be moistened before use (Twain was an avid scrapbooker). The scrapbook was hugely popular and sold over 25,000 copies, with one account indicating that it was his single most profitable book. And it didn't contain a single word.
- Federico, P.J. (1939) Facts in the Case of Mark Twain's Vest Strap, 21 J. Pat. Off. Soc'y 223. http://heinonline.org/HOL/Page?handle=hein.journals/jpatos21&div=30&g_sent=1&collection=journals.
- Mark Twain Granted His First Patent on December 19, 1871. United States Patent & Trademark Office. 18 December 2001, 01-61. http://www.uspto.gov/news/pr/2001/01-61.jsp
- The New York Times (March 12, 1939). See http://www.twainquotes.com/19390312.html.
- The St. Louis Post-Dispatch (8 June 1885). See http://etext.virginia.edu/railton/marketin/scrpbook.html.
- Mark Twain's Letters, Volume 4: 1870-1871 (1995) Edited by Victor Fischer, Michael B. Frank, and Lin Salamo.