Visitors to Mt. Hope Cemetery in Rochester, N.Y., often remark on a simple tombstone bearing the name George Baldwin Selden. Below Selden’s name is his claim to fame: “Inventor of the gasoline automobile.”
“Selden? Never heard of him,” is the usual comment of cemetery visitors. A hundred years ago nearly everybody knew Selden’s name–especially anyone about to purchase of one of the new-fangled automobiles. Selden’s 1895 patent on an “improved road locomotive” was tying the infant automobile industry into knots. This is the story of George Baldwin Selden: soldier, patent lawyer, inventor. And forgotten man of the automobile.
One of 12 children, he was born in 1846 at Clarkson, 16 miles west of Rochester, in a house that still stands. His abolitionist father, Henry Rogers Selden, participated in the formation of the Republican Party in 1856 and was elected lieutenant governor of New York in 1857. According to a family account, Henry Selden turned down the chance for nomination for the vice-presidency on the Republican ticket with Abraham Lincoln in 1864.
Henry Selden’s most celebrated case was his defense of woman’s suffrage activist Susan B. Anthony. With the passage of the 14th Amendment holding that citizenship rights cannot be abridged and the 15th Amendment guaranteeing that race was no bar to voting rights, she believed that women had the right to vote. In the 1872 national election, she and 50 women registered to vote. Anthony and 14 other women voters were allowed to vote in the 8th Ward.
Susan B. Anthony and the election inspectors were arrested and held in $500 bail, which she refused to pay. Henry R. Rogers posted her bail, saying that “he could not see a lady he respected put in jail.”
Young George Selden attended the University of Rochester briefly before serving with the Sixth New York Cavalry and the Hospital Corps during the Civil War. Fate sometimes plays strange tricks. Had his father accepted the vice-presidential nomination, he might have returned from the war as the son of the man who would succeed the assassinated Lincoln.
Instead, he emerged obscurely to enter Yale as a sophomore in 1865. He soon abandoned a classical course to enroll in Yale’s Sheffield Scientific School, where he spent two happy years.
Young George Selden was a tinkerer and had a native mechanical ability, but his father had other plans for him. His science studies were cut short abruptly in 1869, however, when his father insisted that he return to Rochester to “read law.” He became a member of the New York bar in November of 1871. Patent law seemed like the ideal legal specialty in which to combine a natural inventiveness with his enforced profession, so he entered that field. By 1878, he had established his own practice.
Selden soon became fascinated with the subject of road locomotion and read everything he could find on the subject. Heavy steam-powered vehicles had proliferated in England and America a half century before but had been stifled by legislation and the swift growth of railroads. As Selden saw it, the main problem was to find a new and light engine to propel a wheeled vehicle over roads.
Philadelphia and the Brayton Engine
In 1876, the nation celebrated its hundredth birthday with the Centennial Exposition in Philadelphia. Selden attended to show a machine he had invented for making barrel hoops. This gave him a chance to see and study several recently perfected engines.
The exposition’s 2,275-foot-long Machinery Hall held 13 acres of mechanical devices. Star of the show was the 70-foot-tall double Corliss engine. This 1,500-horsepower monster engine operated five miles of rotating shafts that powered other machinery in the vast hall. It required only a single attendant, who sat calmly on the platform reading newspapers.
In contrast with the clumsy, clattering giant engines powered by steam and illuminating gas, the 1,160-pound, two-cycle Brayton engine on display, although large, offered the best possibility of powering a road vehicle. Selden began toying with engine designs.
The Brayton engine contained a diaphragm through which flame entered the water-cooled cylinder, creating poor combustion. Selden’s engine was identical to Brayton’s except that it omitted the diaphragm. Combustion was just as poor.
In December of 1877 he brought his own engine specifications to Frank Clement’s machine shop in Rochester. The design, called for three cylinders, each opposed by a compression air pump. A casting was made, but only one of the cylinders was bored out. In May of 1878, the 370-pound two-horsepower engine was tested, but operated feebly.
By any yardstick, Selden’s contributions to engine design at this point were considerable. He had enclosed the Brayton open crankcase and made it integral with the block. This enabled him to eliminate the heavy bed plate and the cumbersome reciprocating parts and walking beam, thus reducing the size and weight of Brayton’s engine. Selden knew at last that he had found an engine that could be mounted in a vehicle the size of a buggy.
The elated Rochester lawyer filed his patent application on May 8, 1879. In it, he described in general terms an “improved road engine” powered by a “liquid hydrocarbon engine type.” It combined his version of the Brayton engine with other basic elements of the gasoline-powered automobile, as it was to evolve.
These elements, of course were all known at the time. It was their combination that was new and therefore patentable.
At the time Selden filed his patent application, the two-cycle Selden engine was thought to be the gasoline power plant of the future. In Germany, Nikolaus Otto had used an electric spark to ignite a mixture of coal dust, gasoline and air to explode inside a cylinder and push a piston to drive a wheel.
The drawing that accompanied Selden’s 1879 patent application bore two signatures as witnesses. One was that of W.M. Rebasz, Jr., Selden’s patent draftsman. The other was that of George Eastman, a name that would later become known worldwide. In 1879, Eastman was still only an unknown clerk in an office in the same building as Selden. He had the germ of an idea for bringing photography within the reach of everyone.
Upon arriving in the Patent Office in Washington, Selden’s application began a long and tedious stay. It was to be the subject of amendment and correspondence for the next 16 years, five months and 28 days before issuing forth in patent form.
Selden was widely criticized for taking advantage of the statutory limit that then governed the pace of patent applications. Delaying patent applications was a common tactic–and it was entirely legal.
Patent Office Backlog
During the 19th century, American patent law had become a veritable jungle of abuses. The Patent Act of 1836 had set no time limit for replies by applicants to Patent Office actions. In 1870 a two-year period was fixed for completing or perfecting applications. But the two-year period was renewable indefinitely.
Once Selden had submitted his patent application, he took advantage of every legal tactic to delay the issuance of a patent. By the end of 1894, the Patent Office found itself with the staggering total of 50,507 waiting applications. Of 12,000 pending for two years or more, five, including Selden’s, had been under consideration for 15 years.
The exasperated Commissioner of Patents ruled in April of 1895 that applicants must show cause why cases of long standing were not more rapidly prosecuted–or face rejection by patent examiners. This ruling had the effect of reducing the number of outstanding cases by 6,859 in 1895. One of these was Selden’s.
Since no one else in 1879 saw an automobile industry on the horizon at that early date, if Selden foresaw the eventual growth of an automobile industry and purposely delayed the issuance of his patent until a social demand arose for the automobile, perhaps his foresight should be recognized. By the primacy of his patent application, he was the first American to conceive of the gasoline automobile.
Procrastination a Tactic
Selden has been castigated by various historians of technology as “a consummate master of systematic and intentional delay” and “that prince of procrastinators.” The charges are true. Patent Office replies to Selden took a month or less. Practically all of Selden’s responses are dated a shade under the statutory limit of 24 months or 730 days. Even such a routine detail as furnishing a new oath took Selden 726 days.
Out of fairness to the Rochester inventor, his explanation for the delays was that he was trying unsuccessfully to line up capital for the manufacture and sale of automobiles of his design. There is evidence that he tried to do so.
Nevertheless, between 1879 and 1895, his 19 original claims were canceled and replaced by revisions that kept up with changes in technology. In all, Selden made about a hundred separate changes. In the more than 16 years his application was pending, it was actively handled by the Patent Office for a total of about seven months. To make replies to Patent Office actions and to pay the final fee, Selden took 15 years and 11 months.
With a nonrenewable life of 17 years, Selden’s patent finally issued on November 5, 1895. Coincidentally, this was the same month that a new magazine appeared, a herald of things to come: The Horseless Age.
A Patent at Last
Selden’s patent emerged but attracted little attention and languished. Car maker Alexander Winton of Cleveland paid Selden $25 for a 90-day option to build Winton cars under the patent, but the option was never taken up.
Fate intervened in the improbable form of a blizzard on the second Monday in February of 1899. Lawyer and financier William Collins Whitney glumly watched from a window of his Fifth Avenue mansion as the snow came down interminably. Towering drifts brought traffic almost to a standstill. Only the newly introduced electric hansom cabs were able to move through the snowbound streets.
Severe as it was–and the cold that preceded it set records that still stand–the blizzard of 1899 was not destined to live on in people’s memories like the great blizzard of 1888. Nevertheless, the 1899 storm was to have a protracted and far-reaching effect on the automobile industry then just being born. Indirectly, it touched off what has been called “one of the strangest litigations in the annals of the American patent system.”
Whitney, leader of a powerful combine of traction and utility promoters, was impressed by the way the electric cabs got through drifting snow when other transportation was halted. The snows of the blizzard of 1899 had barely melted before Whitney and his associate, Thomas Fortune Ryan, bought control of the company that operated the cabs, Isaac L. Rice’s Electric Vehicle Company.
Whitney’s plans were on an imperial scale. Under his aegis, the EVC announced it would place 12,000 electric taxicabs on the streets of the country’s major cities. The next step was to find an automobile builder capable of accepting an order of that size.
The Pope Manufacturing Company of Hartford, Connecticut, was the sole candidate. Colonel A.A. Pope, its founder, had made the Columbia bicycle a household word. He was also the first to build automobiles in quantity.
In April of 1899, Whitney traveled to Hartford to discuss his plans with Pope and George H. Day, Pope’s assistant. Day and Whitney soon discovered that they had something in common: an aversion to gasoline-powered cars and supreme confidence in the future of electrics.
Before long the subject of an order for vehicles was put aside, and Whitney was dazzling Pope and Day with talk of a merger of his EVC and the automobile-building portion of the Pope Company. To capitalize on the widely recognized and respected Columbia name, a new organization called the Columbia Automobile Company was formed to fill the Whitney order.
Whitney and his associates had been the first to conceive of the holding company as a tool for financial manipulation. Using this device, they gained control of utilities and public transportation systems across the country.
Under Whitney’s plan revealed in Hartford, the EVC would become the holding company for subsidiaries operating fleets of electric cabs in New York, Boston, Philadelphia, Chicago and cities in 16 other states, including Georgia and California.
A Troubling Patent
With a caution born of his years of experience in capturing corporations, Whitney, a self-made millionaire and former Secretary of the Navy under President Grover Cleveland, inquired whether there were any basic controlling patents that might be infringed upon by his plan and thus obstruct it.
Hermann F. Cuntz, a young patent specialist on Pope’s staff, obligingly produced a three-page list of patents covering steam, electric and gasoline cars. Cuntz had been pestering the Pope management about one patent on his list for three years, insisting that Pope’s experimental gasoline vehicles infringed on it. Management had turned a deaf ear to the eager Cuntz.
Not William Collins Whitney, who was anxious to hear more about the annoying Selden patent. Inventor Hiram Percy Maxim, also on Pope’s staff, maintained that the engine shown in the Selden patent drawing was “utterly impractical and a joke.”
Cuntz insisted that the wording of the patent determined what it covered. According to him, Selden’s patent covered a combination of the basic elements of gasoline automobiles–“the body, running and steering gear, clutch, power shaft and liquid fuel tank, with an internal combustion engine of the compression type using liquid hydrocarbon fuel.”
This described just about every gasoline car then being built in a hundred backyards and in dozens of small automobile assembly plants springing up across America. To Maxim, the prospect that all this effort could be stopped–if Cuntz was right–was “too awful to be believable.”
The careful reader may wonder at this point what difference a basic patent covering gasoline automobiles could have made to the Whitney scheme for manufacturing electric cabs. The answer is, none. Whitney’s bitter experience of a few years before with a patent for paper products had made him more prudent in investigating patents. Who, he asked, was this Selden? And could Rochester indeed have been the birthplace of the automobile?
Rochester was a sedate and comfortable city on the banks of the Genesee River. After the Erie Canal attracted many flour mills, it became known as “The Flour City.” As railroads superseded the canal and flour milling moved westward, the city was left with an empty name. Rochester encouraged the growth of a nursery industry and soon was reborn as “The Flower City.”
And, like necessity itself, Rochester became the mother of many inventions and home to many inventors, including George Baldwin Selden.
Whitney Acquires a Patent
When William Collins Whitney learned that five other Wall Street speculators were planning to pay a quarter of a million dollars for the rights to the Selden patent, he made up his mind.
We will never know with what feelings Selden greeted the Whitney group’s first overtures. We do know that he favored the assignment of his patent to manufacturers rather than to speculators. On November 4, 1899, with his patent’s useful life already reduced to 13 years, Selden gave an exclusive license to Pope and Whitney’s company for a royalty of $15 per vehicle and a guaranteed minimum payment of $5,000 a year.
Despite Whitney’s preference for electricity as a motive power, the EVC management soon came to the reluctant realization that electric cars were not capturing the public’s favor.
Searching for new sources of income, the Whitney forces remembered the Selden patent. Perhaps royalty payments by the burgeoning gasoline segment of the industry could bolster their tottering financial structure. When rumors got out that this was under consideration, a shiver ran through the ranks of builders of gasoline-powered cars. Even a financially wounded EVC would make a formidable adversary in litigation. The industry monthly Horseless Age called the EVC “the Lead Cab Trust” (because of Whitney’s control of the Electric Storage Battery Company, makers of the lead-acid storage batteries used in EVC cabs) and advised car builders to disregard threats from such combines.
“Grotesque” was how the magazine characterized the Whitney group of promoters. “If they have any saving sense of honor,” the editor wrote, “they will retire and leave the field to the mechanics and manufacturers to whom it rightfully belongs.”
These suggestions went unheeded. Instead, the Whitney lawyers moved to the attack. In June of 1900, leading makers of gasoline vehicles received identical letters from the law firm of Betts, Sheffield & Betts.
“Our clients inform us that you are manufacturing and advertising for sale vehicles that embody the scope of the Selden patent,” the notice said. “We notify you of this infringement and request that you desist from the same and make suitable compensation to the owner of the patent.”
Lawsuits Begin
A month later, court actions were begun. The targets were the Buffalo Gasolene [sic] Motor Company, selected as a parts maker, and the Winton Motor Carriage Company of Cleveland, then the largest builder of gasoline automobiles.
The Selden forces also filed suits against two firms chosen for their financial inability to contest such a suit. One of these–the Ranlet Automobile Company of St. Johnsbury, Vermont–was nothing more than two youths building an automobile in their backyard.
Another suit was brought against Smith & Mabley, a New York company importing Renaults, Panhards, Fiats and Mercedes cars from Europe. With parts makers, automobile builders large and small, and importers of motor cars as defendants, the Whitney group had plugged all legal loopholes.
At the news of the suits, most of the automobile trade press echoed the irritation and anger of the five defendants and the apprehension of those who had no yet been sued. From the beginning, popular sentiment looked with disfavor on the Whitney group, which represented in the eyes of the public the specter of financial and industrial monopoly. Thus, Selden found himself on the side identified with predatory, monopolistic and irresponsible business practices almost from the beginning.
In the fall of 1902, with a treasury depleted by mounting legal costs, the Winton Company learned with dismay that seven manufacturers had applied for Selden licenses. The Winton resistance collapsed immediately, and the company began secret negotiations with the EVC for settlement of the suit. George H. Day, president of the firm, demanded a 5 percent royalty on the sale of each car. Alexander Winton thought this was too steep.
In the meantime, two Detroit manufacturers, Henry B. Joy of Packard and Frederic L. Smith of the Olds Motor Works, decided that the best course would be united action. They provided the backbone for the formation of an association of ten major automobile manufacturers, and offered the Selden group a royalty of one-half of 1 percent, threatening to revitalize the Winton defense if their offer was not accepted.
Negotiations between a now-conciliatory George H. Day and the manufacturers’ group began, reaching a climax at an informal meeting with Whitney and his lawyers in March of 1903. On their drive up to Whitney’s palatial mansion at Fifth Avenue and 68th Street, the manufacturers’ committee of five had appointed Elihu H. Cutler of the Knox Automobile Company of Springfield, Mass., as their spokesman.
At each attempt by Whitney or his lawyers to get the group to discuss negotiating terms, the laconic Cutler simply, again and again, repeated what the manufacturers were prepared to offer, while other committee members sat in stony silence. Reading in a New England twang from his notes scribbled on a frayed envelope, Cutler would drone: “We will pay one and a quarter percent royalty. This association shall determine who shall and shall not be sued or licensed under the patent. These are our terms.”
The urbane and polished Whitney soon realized that he had met his match in the canny Yankee, and capitulated. The organization that would be called the Association of Licensed Automobile Manufacturers (ALAM) was about to be born.
As the holder of the Selden patent, the EVC was to collect the royalties: 0.5 percent would go to the EVC and 0.5 percent to the ALAM; the remaining 0.25 percent would go to George B. Selden. For reasons that were never explained, in an agreement dated only three months before, Selden had consented to share half of his royalties with the enterprising George H. Day.
One condition of the ALAM agreement was that the Winton Company settle its suit out of court with the acceptance of a Selden license. The other manufacturers were expected to knuckle under and quickly follow suit by applying for licenses.
Winton’s sales got a shot in the arm when H. Nelson Jackson, a wealthy Vermont physician, and his mechanic arrived in New York after a grueling 63-day drive from San Francisco that was the subject of a recent PBS television program. Their two-cylinder, 20-horsepower open two-seater Winton car is now in the Smithsonian.
Enter Henry Ford
The ALAM had not reckoned with a highly independent maverick in Detroit named Henry Ford. Apparently, Ford with a record of two unsuccessful attempts to establish himself in the automobile industry, approached the ALAM about a license. In the summer of 1903, his Ford Motor Company was about to begin production of inexpensive autos.
The ALAM told Ford to “go out and manufacture some motor cars and gain a reputation” before asking for membership in the association. Frederick L. Smith, then president of the ALAM, had characterized the Ford factory as a mere “assemblage plant.” But so was the rest of the industry in varying degrees.
Self-interest seems to have dictated Smith’s resistance to Ford’s admission to the ALAM. As secretary-treasurer of the Olds company, a firm that made a car to sell for $650, Smith obviously had more than a passing interest in the success of a car that would sell at a competitive price. The Ford Model A runabout carried a list price of $750.
Ford, with capital running low, made another approach to the ALAM. At the meeting, Smith attempted to justify his position and delivered an ultimatum. The ALAM was prepared to grant him a license under the Selden patent if he would agree to sell his car for $1,000 and to limit production to 10,000 cars a year.
This was too much for James Couzens, Ford Motor Company secretary and later a respected U.S. senator from Michigan. He roared, “Selden can take his patent and go to hell with it.” All eyes turned toward Henry Ford. The combative Ford, sitting in a chair tilted against the wall, underscored the sentiment. “Couzens has answered you,” he said.
“You men are foolish,” Smith responded. “The Selden crowd can put you out of business.” Couzens laughed. Ford stood up and pointed a finger at Smith. “Let them try it, he challenged.”
ALAM advertisements began carrying warnings that motorists whose cars did not carry the association’s license tag–a small brass plate on the dashboard or an inside door panel–faced legal action for infringement. Ford, the bellwether of unlicensed manufacturers, purchased full-page advertisements, often on the opposite page.
Ford recognized the tremendous publicity value an infringement suit by the ALAM would bring and announced that he would give “the Trust” a thousand dollars if they would advertise his business by bringing suit against him.
As the autumn of 1903 approached, the fledgling industry watched with apprehension as the two sides squared off for battle. ALAM membership had risen in six months from ten to 27 firms, with combined resources of $70 million. Although there were more than a hundred unlicensed manufacturers outside the association, their total assets amounted to only $27 million.
Admittedly, it would be a battle of titans, but the independent manufacturers would clearly be going into the fray as underdogs. The two most prominent firms among the independents were the Ford Motor Company and the maker of the Rambler car, Thomas B. Jeffery & Company, which announced its intention to remain independent of the ALAM and of other independents as well. Incensed by Ford’s advertising, the ALAM decided to sue.
After submitting his application, Selden took advantage of every legal tactic to delay the issuance of a patent. Selden managed to keep his patent application pending for more than 16 years. By then the nascent automobile industry had been born.
Selden sold rights in his patent to William C. Whitney’s Electric Vehicle Company. On October 22, 1903, the EVC and George B. Selden, as complainants, filed suit charging patent infringement in the U.S. Circuit Court for the Southern District of New York against C.A. Duerr & Company and the Ford Motor Company. Duerr had the Ford dealership in New York City.
To achieve the greatest effect, the suit was brought at the very beginning of the new model year. In this way, the recently formed Association of Licensed Automobile Manufacturers hoped to scare off potential buyers of the automobiles of unlicensed car builders. “Don’t buy a lawsuit with your car,” warned ALAM ads in newspapers. Ford countered by offering to bond every buyer of a Ford car against suits for damages.
Judging by the history of patent litigation, the automobile industry could expect a lawsuit of long duration, especially since Ford was determined not to settle out of court.
On the heels of the suit against Ford, four other suits were filed in succession–against the O.J. Gude Company, as a purchaser of a Ford car; against the French firm of Panhard et Levassor, as a foreign manufacturer marketing its cars here; against the John Wanamaker department store, which had succeeded Duerr as the Ford dealership in New York; and against Henry and Albert C. Neubauer, a Dutch company with offices in Paris. It imported Panhard and Renault cars for sale in the United States.
Although only 265 Neubauer cars had been imported in 1902, with this suit the Whitney forces showed that they intended to plug all legal loopholes.
To make adjudication easier, the five suits were joined as two test cases: one made up of the three Ford suits and the other the two Panhard suits. Before 1913, the proceedings in patent suits were not held in open court. Witnesses were questioned before an examiner of the court or a notary public in law offices, hotels or other locations. There was no effective way of excluding extraneous matter. Such a flawed system almost guaranteed a protracted and expensive contest in the courts. Also, such a system practically guaranteed there would be few fireworks or vivid scenes for the press to report.
Adding to the volume of testimony, the complainants refused to enter duplicated testimony for the Panhard suits into the Ford record and insisted that separate depositions be taken. The result was that the complete Selden case record is of prodigious proportions, comprising more than 14,000 pages and containing more than five million words. The massive record is today an invaluable source for information about the early history of the automobile.
Attorneys Galore
Assembled for both sides was an imposing array of the best patent law talent available. For the complainants, the major part of the case was handled by Samuel R. Betts and William A. Redding, aided by a battery of other attorneys.
The Ford suits were defended by a tireless 60-year-old Detroit patent attorney, Ralzemond A. Parker, and the Panhard suits were represented by the firm of Coudert Brothers. Parker, a Midwesterner with an unkempt white beard, Whitmanesque wide-brimmed hat and rumpled clothes, made a striking contrast to the other layers who were the cream of effete Wall Street law firms.
Excitement was high when George B. Selden appeared as a witness. A patent lawyer of repute, he clashed frequently with Parker, charging the air with tension. Selden wore a gold stickpin in the knot of his necktie–a reproduction of the vehicle depicted in his patent drawing, with hubcaps and lights made of small diamonds and a body of sapphires.
Despite the ill-concealed hostility between Parker and Selden, upon completing his testimony, Selden sent a duplicate stickpin “with my compliments” to his Detroit counterpart.
The star witness for the ALAM complainants was Dugald Clerk, a Scottish expert brought here for two months at a reported retainer of $20,000 and a generous allowance for expenses. Clerk was the highly respected author of the standard texts on engines, The Gas Engine (1886) and The Gas and Oil Engine (1896).
It turned out that Clerk’s expertise was largely limited to stationary engines. Although Clerk had testified in many British patent actions, his cross-examination at the hands of attorney Parker revealed he was by no means an authority on American patent law.
After completing testimony that added some 300,000 words to the already massive trial record, Clerk ruefully admitted, “If Mr. Parker is right as to American patent law, I fear I have broken down the case of my side.”
Motor Vehicles as Trial Exhibits
A highlight of the trial was the rivalry between the motorcars constructed as exhibits in the case. The Selden buggy appeared in two versions–described by the inventor as “Chinese copies” of his patent. One was built in Rochester and the other, looking strangely dissimilar, was built in Hartford. Frederic R. Coudert, the Panhard attorney, scorned the heavy, trucklike Hartford-built Selden vehicle as “much Hartford and little Selden.”
The Rochester-built vehicle, constructed under the supervision of the inventor’s two sons, incorporated his original 1877 one-cylinder engine, but with the two unfinished cylinders bored out and fitted with pistons. Large metal numbers were added to the sides of the vehicle. These showed the date when the inventor had first conceived his invention, 1877–two years before he had filed his first patent application. The date 1877 applied to a vehicle constructed in the winter of 1905 infuriated the defendants.
Because George H. Day was certain a working example of the Selden patent was needed, he ordered a vehicle to be built in secret in Hartford. More powerful than the one built in Rochester Unfortunately, the Hartford vehicle required the assistance of an air compressor to get it started.
Convinced that a public test of the Selden vehicles would show the flaws of these vehicles, defense attorneys pressured the ALAM to drive them publicly through the streets of the city. After initially agreeing, the Selden forces reneged, insisting that New York’s traffic regulations prohibited such demonstrations. Accordingly, the two ALAM exhibits were moved across the Hudson River to a racetrack near Guttenberg, New Jersey.
Of the two vehicles, the Hartford model gave a better performance. This was understandable, for it incorporated a number of features not shown on Selden’s original patent drawing, including speed-changing gears, a water-jacketed engine and pneumatic tires.
Hugo C. Gibson, a British mechanical engineer, had been retained by the ALAM to operate its vehicles entered as exhibits. Mr. Gibson fenced with attorney Parker, sometimes claiming to be an expert and at other times, an “ordinary human being.” When Parker demanded direct and specific responses, exchanges like the following took place:
A. I have no knowledge in my present capacity of pure flame ignition.
Q. What do you mean by “in my present capacity”?
A. I mean that as an ordinary individual without special knowledge I have no knowledge of pure flame ignition.
Q. Have you any knowledge of “pure flame ignition” as used in this case as an expert?
A. I cannot say what I know as an expert.
Q. As a fact, do you know what flame ignition is as applied to that engine?
A. As an ordinary individual I do not, nor could I possibly.
Q. Do you know as an expert?
A. I cannot tell what I know as an expert.
Q. You mean you can’t or your won’t?
A. I mean I can’t, just as I say.
Q. Why can’t you?
A. I don’t know.
In September of 1907, ALAM attorneys overcame their reluctance to operate the Selden buggy on the streets of New York. It was demonstrated publicly, being driven on 49th Street between 6th and 9th Avenue. Piloted by Hugo Gibson, it “groaned, missed, choked, overheated and stalled. Gibson was assisted by a mechanic known as “Cranky Louis.” According to the magazine Horseless Age, he acquired that nickname because of “his frequent performances in that line.”
During these tests the Selden buggy was equipped with electric ignition. The car’s average speed was only seven miles and hour. Its longest run was a distance of only 3,450 feet.
Henry Ford’s answer to the Selden exhibits had an interesting genesis. When Dugald Clerk testified that a vehicle powered by a non-compression engine, such as French inventor Etienne Lenoir had patented in 1860, would not move at all, Ford’s attorneys pricked up their ears, especially since Lenoir’s car had been successfully operated in Paris.
A Ford-Lenoir car, with a primitive carburetor and engine built with the aid of old Selden patent drawings, was constructed and introduced by the defense to challenge the expertise of Dugald Clerk, the ALAM’s witness.
As the suits closed their fourth year, the sight of these outmoded vehicles on the streets of New York gave the trial an added fillip and revived public interest in the case. Unfortunately, there never was a simultaneous demonstration of the capabilities of the opposing cars.
Trouble ahead for the ALAM
In 1907, George B. Selden lent his name to the Selden Motor Vehicle Company of Rochester, which became a dues-paying member of the ALAM. It would manufacture motor cars until 1914.
The year 1907 was a bad one for the ALAM. On November 21, its driving force and general manager, 56-year-old George H. Day, died in Daytona Beach, Florida. The following month, the EVC, heavily mortgaged for the past five years, went into receivership with liabilities of $3.5 million. The dynamic William C. Whitney was long out of the picture, having succumbed to appendicitis in 1904 at the age of 63.
The EVC’s financial problems touched off a wave of member resistance to payment of royalties to ALAM, an association in trouble. Many firms threatened to leave the association unless the royalty rate was reduced. The 1.25 percent rate was cut to 1 percent in June of 1908, with an added discount of one-fifth for payment within 15 days of the quarterly due-date. This made the effective royalty rate only eight-tenths of 1 percent.
In spite of this reduction, some ALAM members, notably W.C. Durant, then laying the foundation for his General Motors empire, halted their royalty payments entirely. The association countered with suits to force them to pay.
Students of the Selden patent suit have sometimes raised the question of how Ford could sustain the cost of defending against the suits when the Winton Company had found the burden crushing. One answer lies in the swift growth and phenomenal success of the Ford Motor Company. Another explanation is that Ford found it cheaper to fight the ALAM than to pay royalties.
Before 1908, the year the ALAM royalty rate was reduced, Ford would have paid an average royalty of $12.50 on each car sold–but the company was spending only about $6.80 per car to defend the suit. Thus, Ford was spending little more than half the demanded royalty to defend against the ALAM suits. In effect, the ALAM was underwriting the cost of Ford’s defense against its litigation. By the autumn of 1908 the ALAM cases had passed their fifth birthday. Most of the testimony had been taken, but the formidable task of preparing briefs still lay ahead. By the middle of 1909, it was estimated that $2 million had been paid to the Selden interests.
Reporting on the progress of the trial, a trade magazine wrote, “The accumulated evidence and exhibits in the case would fill two standard freight cars.”
Until new procedures were introduced in 1913, one of the paradoxes of patent litigation was that testimony was taken and the case was prepared long before a judge was appointed. Choice of a judge was also a matter of chance, often determined only by the time when the case came up on the court calendar.
Parker, the Ford attorney, feared the designation of Judge Charles M. Hough, whom he described as “not a patent judge.” As it turned out, Hough was the judge assigned to the Selden case.
On May 28, 1909, attorneys for both sides gathered in a courtroom in the mansard-roofed granite Post Office building south of New York’s City Hall for the final six-day hearing. When an attorney for the claimants began his argument before Judge Hough by describing the Selden patent, the judge interrupted. “Someone will have to explain to me what the liquid hydrocarbon gas engine is.” Clearly Hough was no patent judge.
The strategy of the complainants was simple. They emphasized that Selden’s was “the basic, fundamental pioneer patent” and that the difference between engine types was unimportant.
Defense attorney Parker’s sprawling argument lost much of its impact by too much attention to the history and development of the prior art, burying his defense in a mass of distracting detail. It had two basic themes. First, that Selden substituted one motive power for another in a well-known combination without producing a new result and as such the new combination was not patentable. Second, that the scope of the patent should be restricted to the particular engine described by Selden, namely the Brayton engine.
An Opinion and an Appeal
Hough listened to the oral arguments and took the huge record away with him to study at his summer home in Rhode Island. Both sides retired to await his verdict. On September 15, 1909, nearly six years after the first suit had been entered, the judge filed his opinion. In it, Judge Hough found himself in complete agreement with the complainants’ arguments. He affirmed the scope of Selden’s patent and accorded him formal recognition as the inventor of the automobile.
At this, the unlicensed manufacturers’ ranks fell apart; the judicial defeat quickly became a rout. Some manufacturers hurriedly approached the ALAM for licenses. W.C. Durant made peace with the association by paying a reported million dollars in back royalties.
Yet a stubborn Henry Ford refused to give in. He bombarded Ford dealers and newspaper editors with telegrams reading, “We will fight to a finish.” In lieu of an injunction that would have prevented Ford from manufacturing automobiles, Judge Hough set Ford’s bond at $350,000 to cover damages and profits while an appeal was readied. Ford’s only hope was that perhaps the judges of the United States Circuit Court of Appeals for the Second Circuit would see the issues differently.
The case moved swiftly to a new conclusion. Fortunately, the tedious taking of testimony had already been accomplished. New briefs were filed, and a four-day hearing was announced for November 22, 1910. Justices were to be Emile H. Lacombe, Henry G. Ward and Walter C. Noyes.
The latter judge, who was to take an active role in the appeal, had heard several important patent cases. The venerable Parker, who had elected to stay in the background in the appeal in favor of younger attorneys, heard this news with satisfaction. This time the defense would finally have what it wanted–at least one “patent judge.”
Panhard’s attorney, Frederic R. Coudert, had stumbled upon Dugald Clerk’s treatise entitled The Gas, Petrol and Oil Engine, published the year before by the reputable New York publishing house of John Wiley. The two-volume work was an updating, revision and consolidation of Clerk’s previous books on engines. During his oral argument, Coudert scored a telling blow for the defendants. He asked ALAM attorneys Betts and Redding whether their case was based largely on Clerk’s testimony. Their answer was “yes.”
At this, Coudert produced a copy of the newly revised edition of Dugald Clerk’s treatise on gas engines and asked whether they relied on Clerk as a paid witness or Clerk as an author of the standard treatise on gas engines.
Perceiving where the Panhard attorney was heading, Betts objected that the book was not in evidence. Judge Noyes broke in. “Never mind, Mr. Betts, let Mr. Coudert continue,” he suggested. “I think we can judge well enough if what he has to say is applicable or not.”
It was a moment a Hollywood director would love. Coudert held up a copy of the book in plain view. Referring to the engine in Selden’s patent, he said, “Let us see what Mr. Clerk has to say about it. Not Clerk with a retainer in his pocket, but Clerk, the author.” He paused for dramatic effect. “This man who for six years was their retained expert has not a word in his book, not a single syllable, about Selden.”
In fact, Clerk’s book named others as the true pioneers of the modern automobile. He credited Daimler with the development of the small, high-speed, four-cycle engine, ignoring Selden completely.
“In no work upon gas engines or upon automobiles is the name of Selden mentioned”, Coudert pointed out. ”If Selden made the invention which he requests the court to find, it seems incredible that not a single scientific writer has ever alluded to it. It is hardly possible that the whole scientific world, including Clerk, is wrong, when it ascribes the perfection of the automobile engine to Daimler and the development of the automobile to Daimler, Benz, and Panhard and Levassor.”
Reading aloud from Clerk’s appraisal of the Brayton engine that Selden claimed to have modified, the 39-year-old lawyer quoted Clerk: “No one, however, has yet succeeded in carrying Brayton’s engine further than he [Brayton] did.” In effect, Clerk was contradicting his earlier trial testimony in his latest book, which admitted that Selden had made no improvement to the Brayton engine.
He asked pointedly, “Will the Court prefer the theories of Clerk, the retained witness, to those of Clerk, the distinguished scientist, composing the ‘classic’ on gas engines? If no one succeeded in carrying the Brayton type of engine further than Brayton himself, wherein did Selden make any improvement?”
Coudert denounced the Selden patent as a gross abuse of the American patent system. “The Selden legend,” he concluded, “has some important elements of viability–money, publicity, talent. It only lacks a foundation in fact, without which most legend must ultimately fall when the fire of historic criticism is directed at them.”
Resolution at Last
After only six weeks of studying the record, the appeals judges took a different view from that of Judge Hough. On January 9, 1911, more than seven years after the first suit had been filed, Judge W.C. Noyes read the unanimous opinion of the Court. It represented an acceptance of the defendants’ basic arguments. The judges ruled that Selden’s patent was legally valid, but restricted to the particular structure detailed by the inventor, a combination of elements not used by any automobile manufacturer. The problem was that it simply did not cover the modern automobile.
Judge Noyes pointed out the substantial differences between Selden’s engine and the Otto engine that proved crucial to his decision. Selden’s was a two-cycle external compression non-explosive engine had no distinctive external vaporizing device and operated with constant flame ignition. The Otto four-cycle engine mixed fuel and air in the carburetor and used timed electric ignition to explode the resulting mixture in its cylinders.
“He made the wrong choice,” the court opined about Selden’s designation of the Brayton engine. “The defendants,” the judges added, “neither legally nor morally owe him anything.” Had Selden adopted the Otto four-cycle engine for his combination, his patent would indeed have covered existing automobiles, which almost exclusively used modifications of the Otto engine. The vindication of Ford and Panhard was complete. Even the court costs had to be borne by the complainants.
Reversal of the decrees of the lower court landed like a bombshell on the licensed auto manufacturers gathered in Madison Square Garden for their annual automobile show. The ALAM talked bravely of an appeal to the Supreme Court, but eventually abandoned the idea. Instead, they invited Henry Ford, the man who had led the fight against them, to the ALAM banquet, where he was greeted with a loud burst of applause and excited cheers. The newspapers described it as “a love feast.”
George B. Selden accepted the opinion of the court. “I have succeeded much better than I expected,” he told a reporter, “and as my patent has but a year or two to run, the decision has no severe significance.”
This was certainly a pragmatic view, for the patent then had exactly one year and ten months of useful life. Privately, though, Selden was disappointed, according to those who knew him. He returned to the comparative obscurity from which he had emerged for a brief turn in the limelight.
It is difficult today, even after the passage of almost a century, to separate truth from legend or propaganda. Nevertheless, some conclusions are possible. Had Ford abandoned the automobile industry in 1903 after the ALAM denied him a license, the motor car would have remained a luxury article for a long period. The advent of the mass-produced, low-priced car would have been delayed.
The sequential production methods of Ford, which influenced other automobile plants and other industries, would have developed at a slower rate. The increased use of the motor car would have been postponed for years.
In the way of reform, the Selden controversy resulted in the adoption in 1913 of a new set of rules of procedure in suits in equity. Long depositions are restricted; testimony is taken in open court, and delays and delaying tactics are no longer possible.
One legend is that the growth of the Ford Motor Company was hindered by uncertainty about the outcome. There is no evidence that plant expansion was affected. It has also been alleged incorrectly that the Selden patent shackled investment, production and innovation in the industry.
The Selden suit had a tremendous effect on the fortunes of Ford. By 1923, half of the ten million cars in the United States were Fords. “Probably nothing so well advertised the Ford car and the Ford Motor Company as did this suit,” Henry Ford said in his 1923 autobiography My Life and Work, written with Samuel Crowther.
He might have added that the suit did much to enhance his personal reputation, too. Ford saw to it that the public pictured him as the underdog in the contest, and the public in turn gave him its sympathy. His copywriters portrayed him as a knight on a white charger, single-handedly taking on that evil dragon, “the Trust.”
Despite the vehemence expressed by both sides in their advertising, Ford and Selden retained each other’s respect. About Ford, Selden said during the trial, “Personally, I am on good terms with Mr. Ford, and I rather admire the business skill with which he has managed his enterprise.”
For his part, Ford had no personal animosity toward Selden, “He was a decent old fellow,” Ford later remarked to a biographer. “But when others began to make automobiles, he got into the hands of those who wanted to exploit the industry by claiming tribute from every motorcar manufacturer.”
Selden clung to the conviction that he was the original creator of the gasoline automobile. Calling himself “the father of the automobile,” he spent his declining years in a futile and single-minded attempt to develop a rotary engine.
George Baldwin Selden died in Rochester on January 17, 1922, at the age of 75. On his deathbed he was heard to say, “Morally the victory is mine.” His cherished dream that future generations would honor him for his invention died with him. His name survived briefly in the name of the Selden Motor Truck Company of Rochester, in which he had a large financial interest. But it, too, would disappear when the company failed during the Depression that followed Wall Street’s massive debacle in 1929.
