ARGUMENT IN BEHALF OF THE EXTENSION OF THE PATENT OF B. FRANK. PALMER, K O K gut Jmjjrouement in gqtifirial %i%% Dated November 4th, 1846. Before the Hon. Philip F. Thomas, COMMISSIONER of PATENTS. _J&ecamip g&d (Dctiorfe*,, f®60. By CHAELES F. STANSBURY, Attorney for B. F. PALMER. v & Co. Publishers, Booksellers, Printers and Stationers, Baltimore. In the matter of the Application of B. Frank. Palmer, for the Extension Before the of Letters Patent, granted to him \ Hon. Philip F. Thomas, 4:th November, 1846, for Improve- ments in Artificial Legs. Commissioner of Patents. ARGUMENT ON BEHALF OF THE APPLICANT. Washington, 22c? October, 1860. Hon. Philip F. Thomas, Commissioner of Patents. Sir: I never approached a case with more satisfaction than I feel in the presentation of the application which I now have the honor to advocate; because I am convinced that a favorable action upon it by your Honor, will comport not less with the promptings of generosity, than with the dictates of justice. For it must indeed be a pleasure to grant an extension of a patent in a case where, in addition to a full compliance with the legal re- quirements on which the right is founded, you discover that the object of the invention is purely beneficent, and that its pro- prietor has so administered his property in it as to contribute, in the most efficient manner, to the production of the largest amount of good at the least possible expense to the public. Such is the character of the case now presented for your Honor's considera- tion. Mr. Palmer has been in possession of this patent for fourteen years. Had he used it as men too often employ monopolies; had he taken advantage of its great and universally acknowledged superiority, and of the necessities of the mutilated victims who applied to him for aid, and extorted a large, or unreasonable compensation for the relief of their sufferings, he might have re- ceived a much more ample reward for his ingenuity, and been less clearly in a position to ask your Honor for an extension of his patent. But the testimony has but one voice in declaring 2 his course to have been the very opposite of this. He seems to have regarded the invention as a sacred trust, placed in his hands for the relief of suffering humanity, and to have looked upon his own pecuniary interest in it as a consideration altogether secondary to the claims of the mutilated unfortunates who called to him for succor. Testimony in behalf of the extension, was taken at Philadel- phia on the 10th day of September last; at New York, on the 13th, and at Boston, on the 14th day of the same month. The witnesses examined are all disinterested. The employes of Mr. Palmer have been called, as they alone could speak to some of the most important points to be established. His former part- ners, Dr. Hudson and Mr. Eichardson, have stated, at the opening of their testimony, the nature of their interest in the existing patent, which consists, in both cases, of a partial interest in a limited territory. No interest whatever has been assigned to them beyond the life of the existing patent; and, hence, in the language of your Honor's late decision in the case of Eliza Wells, "it would seem to follow that the rights acquired by the assignees are necessarily limited to the term of fourteen years from the date of the grant, and terminate at the expiration of that period, leaving any remaining interest of a contingent character to be rendered certain, and to become reinvested in the original patentee by operation of law, and by the action of the Patent Office, in the extension of the patent." For greater convenience, the testimony has been printed, and carefully compared with the original manuscript. The references which I will make to it, will, therefore, indicate the pages of the printed proofs. In support of my opening statements, with regard to the manner in which Mr. Palmer has administered his property in the invention, let me now recur to the testimony. Richard Clement, a workman who has been with Mr. Pal- mer ever since he commenced the business, says, (p. 5, of proofs,) "I have known quite a number of legs to have been given away; I have known others to have been sold for cost, and less than cost," and, in another place, {same page,) he says, " If we did not get but seventy-five dollars for a leg, we were just as particular with the workmanship as if one hundred and fifty dollars were paid." Edwin Osborne, Mr. Palmer's principal assistant, who has been with him since 1847, testifies, (page 9, of proofs) "The 3 price is one hundred and fifty dollars for a limb: from this, however, great reductions are often made to favor the poor and unfortunate. We sometimes give the leg for nothing; sometimes at cost; and often at a small advance. The rule of the establish- ment is to furnish every applicant at some rate, whether profitable or not. I never knew a person, who was at all deserving, to be turned away for want ofmeans." Joseph D. Koup says, (page 20,) " Mr. Palmer's regular price is one hundred and fifty dollars. I was poor, and he furnished me my limbs for one hundred dollars each; and I believe he generally makes that difference." John B. Wykoff, a patient who had once been in Mr. Palmer's employ, says, (page 23,) "I was about two years with Mr. Palmer in the capacity of clerk, and I know that he usually made a con- siderable deduction from his regular charge, to poor persons. His regular price was one hundred and fifty dollars; but I have known him to take as low as seventy-five dollars, and sometimes less." Dr. Hudson, in charge of the New York office, testifies, in answer to an interrogatory on this subject, that it was the inva- riable practice of the firm to furnish limbs to the poor "when- ever they, or their friends, would pay the first cost of the limb; in many cases where they would pay one-half the cost; and in many other instances, entirely gratuitously." Dr. Townsend, an eminent surgeon of Boston, says, (page 33,) " In many cases they [the limbs] have been provided, at my re- quest, at half the usual price." Mr. Richardson, in charge of the Boston office, states, (p. 39,) "It is our rule and invariable practice, to furnish limbs to the indigent, and patients who are unable to pay, at a price not exceeding the first cost of the limb, and frequently for a less amount." Similar testimony is given by Mr. Lincoln, (p. 43.) The cases in which the reduction of price was made, were so numerous, that it will appear, in the sequel, that the actual amount received, instead of approaching one hundred and fifty dollars, the nominal price of the leg, was, on an average, rather less than one hundred dollars, leaving no more than a mere manufacturer's profit. In view of this testimony, I submit that Mr. Palmer comes before you with unusual claims to favorable consideration. It is owing to the noble and generous spirit in which he has admin- istered his property in the invention, so that no person or class 4 was excluded from a share in its benefits, that he remains to this day'comparatively a poor man. That a munificent fortune would be no more than a proper recompence for the great bene- fits conferred upon humanity by his. ingenuity, will, I think, fully appear from the testimony. The case is unembarrassed by opposition; because there is no ground on which opposition can legitimately stand. The origin- ality and utility of the invention, are as indisputable, as the dili- gent enterprise of the inventor, and the inadequacy of his reward. Every question which the law propounds with reference to the propriety of the extension, can be triumphantly answered in his favor; and a simple perusal of the evidence presented would, I am confident, leave your Honor's mind entirely free from doubt as to the character of the answer you will render to his prayer. Yet our duty would not be all performed, if we failed to present the case in the light which the testimony appears to us to shed upon it. THE ACCOUNT. The law requires the applicant for an entension to furnish "a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures, sufficiently in detail to exhibit a true and faithful account of loss and profit in any manner accruing to him from, and by reason of, his inven- tion." In accordance with this requirement, Mr. Palmer has furnished a sworn account, quite sufficiently in detail, of his re- ceipts and expenditures on account of his patents for the artificial leg. Accompanying this account is an explanatory statement, also sworn, making clear all its items. In his anxiety that this account should have no shadow of leaning in his own favor, he has put down the cost of manufacturing the leg at sixty dollars. In this, he is below the estimate of every witness who has spoken to the point. Dr. Hudson, (p. 28,) testifies that the leg has cost seventy-five dollars, on an average. Mr. Richardson puts the cost at "about seventy dollars, perhaps a little less," (p. 37.) Mr. Lincoln says, he thinks they have cost as high as sixty-five dollars, (p. 42.) Now, supposing the lowest of these estimates to be the correct one, it would seem that Mr. Palmer has made an error against himself in the account, of more than $10,000. It is certainly clear that he has not attempted to over estimate the' cost of manufacturing the limb. 5 The general correctness of the account is testified to by Mr. Osborne, (p. 12,) who has kept Mr. Palmer's books for the past three years, and, according to Clement's testimony, (p. 4,) as well as his own, has been familiar with the whole course of his busi- ness, almost from the date of his invention. So far as the ac- count relates to the business of the Philadelphia establishment, he swears he knows it to be correct. Dr. Hudson swears to a like statement with reference to the New York office; (p. 28) and Mr. Richardson makes a similar declaration with reference to the business at Boston, (p. 37.) In the account rendered, Mr. Palmer has charged $2,000 as an estimate of the value of the time, thought, and expense devoted to experimenting from the period when he lost his leg, in 1837, to the autumn of 1846, when he obtained his patent. That such a charge is a legitimate one, has more than once been admitted by the Office. Mr. Commissioner Holt, in the decision extend- ing the Groodyear patent, says :—" Whether we consult the letter or reason of the law, I entertain no doubt that expenditures made in the progress of experiments preceding the invention, but look- ing to it, are as clearly chargeable to the patent as those made afterwards, either in perfecting it or introducing it into use." {Decision, p. 5.) The charge, then, being legitimate, it is estab- lished by the applicant's oath that its amount is not excessive. The sum, indeed, appears merely nominal when the value of the result is considered. The only other item about which there can be any question, is the charge of the expenses of the trip to London in 1851, to attend the Great Exhibition of that year. Mr. Palmer has clearly and correctly explained it, in the statement accompanying the account, as an advertising measure, intended to spread the knowledge of the importance and value of the invention at home, and therefore a proper charge to " the introduction of the inven- tion into public use." I was myself in London during the whole period of the Great Exhibition, and I am free to say, that no American who shared the sneers with which our unpretending display was greeted by the European press, can but feel that he owes a debt of gratitude to those who, in the end, so nobly vindicated the industrial honor of our country, and carried off the richest prizes for great and original contributions to the mechanic and industrial arts, and thus turned the tables on their supercilious competitors and critics. 6 Prominent among these champions of our national honor, was the present applicant, whose beautiful invention attracted the notice of Europe, secured the approbation of the first surgeons of the age, and carried off the prize medal from a large number of rivals. To these facts witness is borne by the "Reports of the Juries"—a work in the Library of the Patent Office, and to which reference is made in the testimony of Mr. Osborne (p. 7). The newspaper articles from the British press, there referred to, are, some of them, reprinted in the Appendix, (p. 44,) and show how favorable, and how extensive was the impression made by this invention upon the public mind. This impression could not but react on the American public, watching anxiously the prospects and fortunes of our countrymen in that great industrial struggle. The American press re-echoed the laudations of the British, and the invention was made more widely known at home than ever before. Even "Punch" contributed his share to its spreading fame. Mr. Richardson testifies, (p. 39,) that he considers Mr. Palmer's visit to London " one of the most important steps ever taken, in fact, the important step towards the introduction of the invention into this country, giving it a name and position that it could not otherwise have attained. The high character, and professional standing of the judges who decided upon its merits at the Exhi- bition gave it a name, and secured for it the entire confidence of the medical and surgical profession throughout the United States. As an advertising measure, its effect was more valuable than all the other advertising measures ever adopted by Mr. Palmer prior to that time." Viewed in the light of this testimony, the expenses of this visit, and the loss of time on account of it, are fairly chargeable to the patent. The remaining items of the account either explain themselves, or are so fully and satisfactorily explained by Mr. Palmer in his statement, that they require no further remark. The result, as stated, is a profit of $30,507, chargeable to the three patents under which the "Palmer leg" is manufactured. In the account thus presented, no notice whatever is taken of the value of the time devoted to the invention since the issue of the patent. Your Honor has laid it down, in the decision in the extension case of Samuel F. B. Morse, rendered last April, that " The aggregate value of the time, ingenuity and expense of an invention, is the criterion by which, under the law, this Office is to judge of the sufficiency of the remuneration received by 7 him, in order to determine whether an extension of the patent should, or should not be granted." And the decision proceeds, in the next sentence, to point out the mode in which the value of the time is to be arrived at:—"The value of the time devoted to the discovery, perfection and introduction into use of an in- vention, is readily reached by reference to the emolument accru- ing, or that might have accrued, to the inventor from the ordi- nary pursuits of life for which he may have fitted himself." On this principle, undoubtedly the correct one, if Mr. Palmer would have been able, by the exercise of his talents and enterprize in any of the professions, (for any one of which his education and ability would have made him a proper candidate,) to earn the very moderate income of two thousand dollars a year, and should be credited with that amount during the term of his patent, the total profit resulting from his invention would appear to be less than three thousand dollars. Measured by the criterion which your Honor has laid down in the admirable decision just quoted, viz : " the value and importance to the public of the invention itself, as ascertained by the evidence of intelligent and disinter- ested witnesses," the largest sum named, as a compensation for Mr. Palmer's time and ingenuity, seems indeed inadequate, not to say paltry. We shall have to recur to this point later in the argument. But the account rendered embraces all the receipts and expen- ditures on account of three patents, viz : the original patent of 4th November, 1846, and two subsequent patents for improve ments, dated respectively 20th February, 1849, and 17th August, 1852. Now, it is in evidence that the improvements included in these two later patents, have been used in the leg as it has been manufactured ever since they were issued, {proofs, p. 3,) and that they add greatly to its perfection, and are regarded by competent manufacturers as indispensable, {proofs, p. 40-41.) It is proper and fair, then, that a portion of the profits should be credited to those patents. In the case of the Morse extension, before alluded to, your Honor very justly observed, with reference to a state of facts en- tirely similar, that, there being " no standard not purely arbitrary by which their relative value might be ascertained, it has proved impossible to adopt a rule for an apportionment of receipts and expenditures between the two patents." {Decision, p. 24.) You therefore, in that case, divided the receipts and expenditures equally between the patents concerned. {Decision, p. 28.) Upon 8 the same principle, the share of the total profit of thirty thousand dollars, properly chargeable to the patent now under considera- tion, would amount only to about $10,000. But we are willing to admit that this patent, as being the fundamental one, is equal in value to both the others; and, on this basis, $20,000 appears as the net profit, no allowance being made for Mr. Palmer's time. ^ This, as appears from Mr. Palmer's sworn statement, is just about the cost of his new factory and establishment in -Philadelphia. In other words, he has received, as his reward for his invention, a sum just sufficient to enable him to erect for himself, at the expiration of the term of his patent, an establishment suitable for the proper and convenient conduct of his business. Is this a suitable reward, a "reasonable remuneration" for the time, ingenuity and expense, devoted to the invention and its introduction into use ? If it is, the invention must be of very little value to the public. This brings me to the consideration of the requirements of the law on which the right to an extension of a patent is based. There are five questions which arise in reference to an appli- cation for the extension of a patent. They are, 1st. Is the inven- tion novel, i. e. was it new and patentable when it was originally before the Office ? 2d. Is it useful ? 3d. Has the inventor used due diligence in introducing it into public use ? 4th. Is it val- uable and important to the public ? and, 5th. Has the inventor been inadequately remunerated for the time, ingenuity and ex- pense bestowed upon the invention, and its introduction into use ? The first two of these questions are to be answered by the learned Examiner, to whom the case is referred for a report. The others are mainly to be determined by the evidence of dis- interested witnesses, submitted by the patentee in support of his application, the burden of proof being on the applicant. These questions we shall consider in order. • NOVELTY. I. It is a significant^fact with relation to the question of nov- elty, that there has been an almost universal acquiescence in the claim of Mr. Palmer to novelty and originality in this invention. The infringements of the patent have been quite insignificant, the principal infringer having been one Jewett, a workman of Palmer's: and Mr. Osborne estimates that he has not made, in all, more than fifty of the limbs. {Proofs, p. 11.) No one has 9 ever disputed Mr. Palmer's right to the invention by a lawsuit, or by an interfering application for a patent. {Same page) Mr. Palmer never was able to get at Jewett to prosecute him for his piracy; for he fled from place to place at Mr. Palmer's approach, thus manifesting a consciousness of the dishonesty of his use of the invention. When the reputation of the limb, and the great demand for it, are considered, this freedom from the attempts of unscrupulous pirates, is a fact of most significant bearing on the question now before us. UTILITY. II. The utility of the invention admits of no question. What we have to say on this subject will be presented under another head. DILIGENCE. III. Has the inventor used due diligence in introducing his invention into public use ? On this question, I need only quote the statement of Mr. Rich- ardson, in answer to interrogatory 5. {Proofs, p. 38.) " Interrogatory 5. Do you know anything of the efforts made by Mr. Palmer to introduce his invention into public use ? if yea, state what was done to that end. "Answer. I do know that he has been indefatigable, sparing neither time, expense nor effort in introducing, developing, and perfecting the patent. He has advertised very extensively, printed elaborate and costly pamphlets, attended the various fairs throughout the country, and also the World's Fair in London. He has presented gratuitously great numbers of models to the various medical institutions throughout this country and Europe, and also to the most prominent physicians and surgeons in our large cities." This testimony is fully corroborated by Clement, (p. 3,) Osborne, (p. 7,) Moore, (p. 15,) Litzenberg, (p. 17,) Wykoff, (p. 23,) Hudson, (p. 29,) and Lincoln, (p. 42,) all of whom unite in bearing witness to the indefatigable enterprise and industry of Mr. Palmer in bringing his invention to the knowledge of the public. Exam- ples of the pamphlets published and distributed by him, are an- nexed as Exhibits to the Testimony. The presence of the limb at the various industrial exhibitions of the country, is shewn by 2 10 the list of awards made by the institutions which held them, given in Mr. Osborne's testimony, (p. 11). The averments of the " Explanatory Statement," with regard to the efforts and expend- itures for the purpose of introducing the invention, are fully borne out by the evidence, and show that the failure of the ap- plicant to receive an adequate reward, has not been due to any " neglect or fault on his part." PUBLIC VALUE. IV. Is the invention of value and importance to the public ? It has been well observed that it is the ratio between the amount of compensation received by the inventor, and the ascertained value of the invention, which is the true test of the propriety of granting an extension. It is not because the inventor has re- ceived little that his extension should be granted; nor is it be- cause he has received much, that it should be refused. Hence the value of the invention to the public is the principal thing to be shewn in such an application. With regard to this question, this invention stands upon en- tirely different ground from that occupied by an invention whose value is purely pecuniary, and where the saving or benefit to the public can be stated in dollars and cents, and thus the ratio between the public value and the inventor's emoluments, made out with exactitude. We can never reduce the value of an in- vention like this, to exact pecuniary statement, until we learn to measure human sensibilities with a rule, and weigh human joys and sorrows in a balance. Although this invention has, un- doubtedly, a high pecuniary value to the public, yet its chief value is, as clearly, a moral one. "A sound mind in a sound body," is the comprehensive de- scription of the state of a perfect man. The loss of a faculty, or of a member, destroys that enviable perfection; and to restore the one, or provide an adequate substitute for the other, is an object worthy of the highest efforts of beneficence. The greatest poets in our tongue have found a theme in the horrors of natural deformity. Those of accidental mutilation have the added pang of contrast. When a man is deprived of a leg, the measure of his loss is not to be found in the mere privation of its previous service. His affliction is to be estimated, morally, by his mortified and wounded sensibilities, and physically, by a long train of cruel 11 sufferings, arising from well understood physiological causes. Among these are the disturbance of the balance between nutri- tion and assimilation, producing plethoric and apoplectic symp- toms ; the injurious effect of the use of crutches upon the circu- lation, the nervous system, the spine, the skeleton of the trunk, and the lungs. {Proofs, pp. 25-30-33-34-39.) The man's material interests, moreover, are usually affected by his unfitness for the pursuit of the avocations to which he had previously been de- voted. Railroad employes, who are frequently subjects of the accidents which result in mutilation, afford an illustration. They are never, or rarely, able to go about their dangerous work on crutches, and hence are often reduced to pauperism by the loss of a leg, and become a charge upon the community. It is in evidence that men, thus mutilated, are restored by the use of this admirable invention, to the power of following their old avo- cations. The witnesses in the case have illustrated their own testimony, being in the actual enjoyment of a living due to Mr. Palmer's compensatory skill. Lincoln mentions the cases of men with one leg, following the occupations of pilots and common sailors; and I have myself seen an engineer, with two of Palmer's artificial limbs, driving a locomotive. If, then, the invention of Mr. Palmer, enables men who, with- out it, would be reduced to beggary, to pursue their ordinary avocations, and earn by their labor, a living for themselves and their families, it has a direct pecuniary value to the public. We have no way, however, of stating it with accuracy on a balance sheet; as we cannot trace the history of Mr. Palmer's army of over two thousand patients, and show how much each one has gained for himself, or saved to the public, through the pos- session of this invaluable invention. When we consider, how- ever, that, as appears from Mr. Palmer's statement, the majority of these patients are from the industrial and poorer classes of the community, it will be evident that the sum, if it could be cor- rectly ascertained, would have to be stated in millions. For, in a case where a man is enabled by this limb, to make a living, who could not have done it without, his entire support, from the time of his procuring the leg until the day of his death, is pro- perly credited to the invention, and, in addition to this, the saving of the amount which it would have cost the community to maintain him as a pauper. Mr. Palmer has sworn that the largest part of his patients were unable, on account of poverty, to paj' the full price for the 12 limb. This fact also appears from the average amount received for the limb. Many of these persons would not be able, without the leg, to earn a livelihood, and would become, with their fami- lies, more or less dependent upon the charities of the community for support. Let us assume, what is certainly below the truth, that five hundred of these unfortunates are of this character, and that the annual difference to the public between their being able to make their own living, and their becoming paupers, is five hundred dollars in each case,—(certainly, when all things are considered, an extremely low estimate,)—and we shall have an annual saving from this class of cases alone, of $250,000, equal to $3,500,000 in fourteen years. But this saving goes on during the whole life of the wearer of the limb, and is not limited to the term of the patent. The pecuniary saving is, therefore, propor- tionately extended in time, and increased in amount. It is safe to assert, moreover, that of the remaining cases, not included in the above estimate, a large proportion have been directly bene- fited in their pecuniary condition, by being enabled to follow pursuits which would otherwise have been closed to them, or to engage in them with more interest and vigor. The witnesses have spoken on this point with clearness and unanimity. Daniel Moore, {proofs, p. 14,) says: " My opinion is, that it [the leg] is the best I have ever seen, as it enables the wearer to perform work, and follow occupations that he could not do with a peg leg, or on crutches, especially where the amputation is above the knee." T. H. Litzenberg, (p. 17,) says: " I could not do without it. I could not attend to my business on crutches, or on a peg leg, with any satisfaction." And, in another place, he says, " I can't find words to express my high opinion of the value of this invention to those who are so unfortunate as to lose their limbs." J. D. Koup, (p. 20,) says: " Money could not pay the value of them to me. If they were taken away from me, you might as well take my life." This witness wears two of these limbs, and yet walks well, about two miles a day, and earns a comfortable living, as a telegraph operator and despatcher, on the Reading Railroad, (p. 19.) James McEleney has lost both of his legs, and wears two of Palmer's artificial limbs; yet, instead of being reduced to pau- perism, he earns his living as a watchman at a railroad crossing and walks four or five miles a day, besides being on his feet 13 from morning till night, (p. 21.) He says: "I would not be without them if I had to pay five hundred dollars a piece for them. I would not be able to earn a living without them. I can now chop wood, use a pick, a spade, a saw, or do almost anything except hard laborious work." John B. Wykoff gives similar testimony. He states, (p. 23,) " I do a great deal more labor than many who have two good legs. My business is laborious, and requires me to handle bags of grain which weigh from seventy-five to one hundred and twelve." He adds, (p. 24,) " I consider the invention very valu- able." Dr. Townsend, (p. 33,) says, " The effect [of wearing the limb] is beneficial, enabling him [the wearer] to perform the various duties of life with more ease and comfort; and, in many cases, persons have been able to follow mechanical employments with comfort." He adds, further on, " I think it of unquestionable value, and that the public would suffer if they were deprived of it. I also think it would be a disadvantage to the public if it were m,ade free." Peter Uubbell, of Boston, a gentleman of wealth and influence, testifies that he has worn the leg for twelve years. His weight is two hundred and twenty pounds; yet he has worn the leg with comfort and satisfaction, and walks without a cane, (p. 36.) He is in active business, and has to be on his feet a great deal. Mr. Richardson, (p. 39,) says that the use of the limb enables the patient " to attend to his occupation, calling or profession with almost, or quite his usual ability." Mr. Lincoln, (p. 42,) states that the patients are " universally pleased with the success of the limb, and with the manner in which they were able to pursue their previous avocations." Litzenberg, (p. 17,) states that, after he had become accustomed to the leg, he felt that he was " able for most any kind of business, and commenced looking for business again." He adds, " I have great comfort with the leg. I have been able to do almost any- thing that I could reasonably have expected." His leg has never required any repairs for five years; and, when it was taken away for a few days to make a new socket, in consequence of the shrinkage of the stump, he found it so inconvenient to be without it, for even two or three days, that he ordered a duplicate, (pp. 16, 17.) This testimony is cited to show the direct pecuniary value of the invention to the public, in enabling the mutilated to pursue 14 the business they followed previous to their loss with nearly the same facility as before, thus saving them from the sacrifices attend- ant upon a change of occupation, and the public from their being thrown as a burden upon the more fortunate members of the community. As to the general moral value of the invention, and its superi- ority over others, the testimony is so full and so uniform, that I need not cite it, and will only refer to it. The awards of public institutions, where this invention has come into competition with every thing of its class, have been very numerous, and uniformly favorable to the superiority of this limb over every other. {Proofs, p. 11, 12.) The opinions of the most eminent surgeons of Europe and America, have been expressed without reserve, to the same effect. Most of the patients who have testified, state that they obtained this leg, in preference to all others, by the recommendation of their surgeons. {Proofs, p. 13, 16, 19.) The most distinguished American surgeons have not hesitated, notwithstanding the somewhat stringent ethics of the American Medical Association on the subject of patents, to respond to the application of Mr. Palmer, and give their testimony to the value of his invention. (See the depositions of Drs. Townsend and J. Mason Warren, of Boston, Drs. Carnochan and Reese, of New York, and Dr. Rohrer, of Philadelphia. {Proofs, pp. 25, 27, 30, 32, 34.) Each of these eminent surgeons has given it as his opin- ion, under oath, that this is the best invention for its purpose known to him. Dr. Rohrer says " it is the leg most generally used and recommended by the surgeons of this country;" that " it seems to be the only one that answers the best purpose." He considers it " of immense value to the public." Dr. Carnochan says he considers it as " superior in merit to any other invention for the same purpose, and as of great importance and value to the public." The deposition of Dr. D. M. Reese, of New York, is particu- larly full and decisive, and I invite your Honor's particular atten- tion to it as explaining, in a scientific and professional manner, his reasons for preferring this limb to all others, and expressing the highest appreciation of the service rendered by Mr. Palmer to the profession and to the public. Dr. Townsend, of Boston, speaks from long and large expe- rience, and with a full knowledge of all the modern inventions His preference is no less decided than that of his professional compeers. 15 Dr. Warren is fully acquainted with the invention, and con- siders it the best artificial leg known to him. As this is in some degree a question of reputation, I have in- troduced sworn copies of original letters from the leading sur- geons of Europe and America, expressing their opinions of the value and importance of the invention; and also similar copies of letters from patients in England and the United States. The original letters will be produced, if your Honor should deem their exhibition essential. (See Appendix.) I have also added extracts from some of the best, and most widely known works on Surgery, in which the public importance and value of this invention are fully recognized. The original works have been submitted for examination and comparison. It will be seen, from the perusal of those extracts, that the views of Mr. Palmer on the subject of amputations, derived from his long and great experience in the application of artificial limbs, are considered as of controlling importance, and are recognized as those by which surgeons ought to be governed in determining " the point of election" in these operations. I submit to your Honor that the moral and pecuniary value of the invention to the public is fully made out. REMUNERATION. V. The fifth and last question which requires to be satisfac- torily answered, in order to the grant of an extension is,—Has the inventor been inadequately remunerated for his time, inge- nuity and expense, bestowed upon the invention, and its intro- duction into use? On this question very little will need be said. It appears from the sworn account, that $35,000 is the total profit that has accrued to Mr. Palmer from the three patents under which his leg is manufactured; and that, in that account, no charge what- ever is made for the inventor's time. If, on the principle laid down by your Honor in the Morse case, before referred to, the profit be equally divided between the patents, the profit charge- able to the patent now under consideration will be, in round numbers, $10,000. I need not enter into any minute calculations about the matter. If the whole profit of $30,000 were chargeable to this patent, I submit that it would be but a pitiful remuneration for the time, ingenuity and expense, devoted to the production and perfection 16 of an invention which has saved hundreds of worthy men from pauperism, restored thousands to usefulness, and carried hope and happiness to hearts and homes rendered wretched and deso- late by the most direful and hopeless of misfortunes. Mr. Hubbell, who has worn this limb for twelve years, bears the following testimony: "I consider that a man who has in- vented such an alleviation to the sufferings of the human race as this artificial limb, ought to be entitled to a handsome fortune. If Mr. Palmer has made only fifty thousand dollars therefrom, it is, in my judgment, an entirely inadequate remuneration." Dr. Reese gives it as his professional opinion " that the inven- tion and improvements of Dr. Palmer, in the perfect imitation of the natural limbs, and in securing both flexibility and strength to the joint, so that all the functions of the natural limb are per- formed with ease and comfort, constitute him a public benefactor, and entitled to all the rewards of his ingenuity and skill which the laws of his country have provided in such cases. And be- lieving that he has not been adequately rewarded for his great labor and expense in bringing his invention to perfection, and making it known for the public benefit, the undersigned regards it as a professional duty to science and humanity to add, that the continued protection from trespassers upon his rights, by an ex- tension of his patent, would be no more than a just remuneration for the service he has rendered to the profession and the public." When your Honor considers that this is the sworn statement of one of the most eminent surgeons of the country, and remem- bers the reserve which gentlemen of the faculty are accustomed to maintain, especially on subjects of this character, it will carry with it a weight which the testimony of less distinguished and less reticent witnesses could never possess, and which cannot fail to have a corresponding influence on your Honor's opinion. Tested, then, by the opinion of highly intelligent and distin- guished witnesses, as well as by the principle of calculation which has guided the Office in similar cases which have come before you for adjudication, I submit that the remuneration of Mr. Pal- mer has not been a " reasonable " one, but has been altogether insufficient, and inadequate to the merit of his invention. ° THE PUBLIC INTEREST. The law makes it the duty of the Commissioner of Patents, in considering an application for an extension, to have " due regard 17 to the public interest." Where all the requirements hereinbefore alluded to are fully complied with, it is in the discretion of your Honor to refuse an extension, if, in your judgment, the public interest would be injuriously affected by it. It therefore becomes the applicant to show that no such effect is likely to result. In the present case, it is satisfactory to feel that the interest of the public concurs with that of the applicant in asking the extension. It is a law of trade that, where a large demand is created for an article, there is a rush, often of incompetent and unskilful persons, into the manufacture. Competition then lowers the price, and lowness of price reacts unfavorably upon the quality of the product, owing to attempted savings in the stock and work- manship which enter into its manufacture. In the case of an article whose whole utility and value depends upon, although it may not consist in, the quality of the materials, and the character of the workmanship employed in its construction, it is essential to the preservation of its quality in the proper perfection, that its manufacture should be in the hands of those who are directly interested in the maintaining its superiority. If, to apply the principle, the patent of Mr. Palmer were made public, many persons, tempted alone by the desire of gain, would at once begin the manufacture of his limb. Destitute of capital, experience, or anatomical and surgical knowledge, and strangers to those just and elevated views which Mr. Palmer has always held, of the character of the trust which the possession of such a property implies, they would produce an article vastly inferior in material and workmanship, fail in the nice adaptation of the limb to the peculiarities of each case, cut down the price to a standard which would render the highest excellence impossible, and thus ruin the reputation of the limb, destroy the public con- fidence in it, and leave the unfortunates who need such an appli- ance, to the tender mercies of pegs and crutches, or the more doubtful consolations offered by other inventions. As the amputation of every limb differs from that of every other, and as no two human beings are exactly of the same s.ze and proportions, every artificial limb made by Mr. Palmer, must be made for the particular patient to whom it is to be applied, and is a work of combined surgical, mechanical and artistic skill. The new limb must be, in size, shape and action, as nearly a coun- terpart of the one whose place it supplies, as possible. It must fit the stump with accuracy and ease; and, to be comfortable, must be strong and yet light, flexible yet firm, and must act with 3 18 certainty and force, yet without noise. To secure these condi- tions is no easy problem ; and hence it appears m evidence that Mr. Palmer not unfrequently throws aside limbs that have been completely finished, because they do not come up to the high standard of excellence which he has established, and is deter- mined to maintain. His effort has always been to bring the workmanship, as near as possible, to absolute perfection; and, to this end, he has spared neither expense nor trouble. Such is the united testimony of the witnesses. Richard Clement, {proofs, p. 4,) says " Mr. Palmer has got up a great deal of machinery expressly for the purpose of manufac- turing different parts of the leg. He has expended a large amount of money in experimenting in machinery for cutting the knees; he has not yet been successful in it, but he has been suc- cessful in regard to machinery for cutting the ankles." Further on he says, " I think the quality of the workmanship now is much superior to what it was; it is better in every part of it. We insist on having good, fine workmen. Mr. Palmer is very par- ticular about the workmanship. I have known him to throw aside a great deal of work which had been commenced, and I have also known him to have limbs frequently made over after being entirely finished. " If we did not get but seventy-five dollars for a leg, we were just as particular with the workmanship as if one hundred and fifty dollars were paid. " The legs are both more durable and lighter than they were at first." Mr. Osborne, {proofs, pp. 8 and 9,) says, " During the past three years that I have been here, new methods of manufacturing have been introduced, at great expense, for machinery and tools. "The quality of the workmanship of the leg is greatly superior to what it ever has been before; this expense in the machinery was entered into for the purpose of reducing the cost, if possible, and to add to the durability of the mechanism, thereby reducing the expense of repairs, &c, to the patients. " The highest perfection of workmanship is absolutely neces- sary, in order that the full benefit of the invention may be re- ceived ; no expense has been spared to bring about this result." Daniel Moore, (p. 14,) says: "The durability and workmanship of Mr. Palmer's leg I consider very superior, as I have worn the same leg for about twelve years without any material repairs." 19 J. D. Koup, who wears two of these limbs, says, (p. 19,) "My limbs have worn remarkably well. I have had very little repair put upon them, and none at all for the last eighteen months. " I have seen samples of different artificial legs, but I consider Palmer's the best artificial leg that ever was in existence. " The workmanship of the Palmer leg is remarkably good and durable; and, in its motion, and action of the working of the limb, is the nearest approach to the natural limb possible, and also for ease and comfort to the wearer." James McEleney, (p. 21,) says, " 7" walk a great deal, I average four or five miles a day, besides that I am always on my feet from early morning till late at night. " I have used my limbs very hard, but they have lasted re markably well, with very little repairs. The workmanship is excellent; the leg is light, strong and comfortable." J. B. Wykoff, (p. 22,) says, "As soon as I was able I got one of Palmer's legs. I was very much pleased with it, and consid- ered it decidedly preferable to the one I had been wearing. It was lighter, fitted better, and was better constructed; it was a more elastic leg, and it imitated the natural leg more in appear- ance, shape, and movement. I walk a great deal; on an aver- age of at least three or four miles a day, sometimes more." Dr. Rohrer, (p. 25,) says, " It combines lightness, strength and beauty." Dr. Reese, (p. 31,) says, " For all the purposes of durability, mobility of joint, and surgical adaptation to every natural mo- tion of the limbs, he has witnessed, in actual use, the artificial arms and legs of Dr. Palmer's manufacture, by patients who have worn them for years, while performing the most active locomotion with comfort and without deformity, so that they have been able effectually to overcome and conceal their mutilation, by rea- son of the perfection with which all the functions of the natural limb have been performed in the actual duties of life." The following is Mr. Richardson s testimony on this point: " Interrogatory 10. Is there a peculiar necessity for fine work- manship in this invention ? and if so, from what does it arise ? "Answer. There is, requiring the highest order of mechanical skill. This arises from the absolute necessity of the nice adjust- ment of its several parts, in order to secure the successful opera- tion of the leg, and without which, it is absolutely impossible to realize the object of the invention. The objects to be attained in the manufacture of the limb are strength, lightness, durability, 20 and easy and noiseless motion. These can be realized only by the very best workmanship. '' Interrogatory 11. Are you aware of Mr. Palmer's experiments with new machinery, and their object ? If so, please state what you know about them. "Answer. I am aware of both experiments and their object, as I was, for several years a business partner with Mr. Palmer at the Philadelphia establishment. During this period Mr. Palmer was unceasing in his experiments to improve the limb, and its methods of manufacture, and also to reduce its cost. To do this, he was constantly making and trying expensive machinery, involving large waste of time, money, tools and materials." Mr. Lincoln, (p. 43,) testifies as follows: Interrogatory 7. Is there a peculiar necessity for fine work- manship in this invention ? And if so, from what does it arise ? Answer. " There is; and it arises from several causes: the first is, unless the work is done in the most complete and sub- stantial manner, it will not stand the constant and severe wear to which the leg is subjected when in use: another cause is, that there is a great variety of cases, which requires a great deal of ingenuity and skill in the application of the limb, a necessary consequence of which is that none but the best and most ingeni- ous mechanics can be employed in the establishment. Such mechanics command a high rate of compensation, and still must be educated to the business." Dr. Townsend says, (p. 33,) "I think it of unquestionable value, and that the public would suffer if they were deprived of it. I also think it would be a disadvantage to the public if it was made free, because its application requires the nicest mechanical skill. The workmanship of the leg also requires to be of the nicest character.'1 If the patent be extended, the manufacture will remain in Mr. Palmer's hands, and, with the facilities which, it appears, he is now providing at his new establishment, he will be able to supply the entire demand, with an article of the same high character as that which, it is proved, he has heretofore furnished to his pa- tients. {Proofs, pp. 5-9.) The price, regulated by the same just principle as hitherto, will be no higher than the admirable quality of the limb, and the surgical skill required in its application, de- mand and justify. The public confidence in the invention will be maintained and strengthened, and the mutilated will have the satisfaction of knowing that their losses can be supplied by a re- 21 liable substitute, in every respect of the very best quality. The reverse of all this would be true, were the invention to be made public property. I contend, therefore, that the public interest would be promoted by a favorable action on our application. In conclusion, it is respectfully submitted, that all the legal conditions having been fulfilled, my client is entitled to the ex- tension of his patent; and I have no doubt that your Honor will concur in this opinion, and grant the prayer of the petition. I have the honor to be, Sir, Your-ob't serv't, CHAS. F. STANSBURY, Counsel for B. Frank. Palmer. 454 E Street, Washington, \ 22d October, 1860. > V t i 1