, and some early MacKinnon patents and legal cases.
[Posted on L&P on Apr 6-12, 2010.]
David Nishimura wrote, “The all-metal MacKinnons are rare. Although other examples were undoubtedly tucked away in collections at the time the pen that started this thread was found, this pen was probably the first example that most collectors–even advanced collectors–got to see and bid on. It was bought by Fultz, with me as underbidder. Whether the pen ended up in Fultz’s own collection or the Sachs-Fultz collection. I’m not sure.
“Since then, several other examples have turned up, including one from Canada and one from Europe. All that I have seen bear either an 1875 Canada-UK, or 1876 USA-France patent date, with no “Patent Pending” markings. I have yet to see an example with the 1879 patent date.
“At this juncture, I am inclined to the following interpretation. These all-metal pens are the exact design shown in the 1879 patent, 217,888, but their manufacture likely predates the patent and the patent application. As we all know, MacKinnon wasn’t the savviest about protecting his
inventions, so it would not be at all surprising for him to have started manufacture of these pens ca. 1875-76, applying for patent protection [174,965 in 1876] once he began to realize what the competition was up to. This delay could also be explained by the fact that the 1879 patent covers improvements to the mechanism in the 1876 patent–improvements that were patentable, of course, but which MacKinnon might well have believed were not so drastic as to dilute the earlier patent’s protection for the basic design. Circumstantial evidence also points to a very early date for the all-metal pens, including their absence from advertisements, their rarity, and the clear superiority of hard rubber, which would have been almost immediately apparent–and hard rubber MacKinnons (and other stylographic and nibbed fountain pens) were definitely in full production by the late 1870s. Not to mention that by 1880 the standard MacKinnon pens had posting pegs at the end of the barrel, whereas this feature is absent from the metal pens, and the early hard rubber MacKinnons, as well, so this is not a function of the materials used.
“According to [Ron Dutcher’s article on] Francis C. Brown, [also see my two blog posts on Francis C. Brown’s two autobiographies] it was the very first MacKinnons that were metal. Note that the all-metal MacKinnons that I’ve examined do not have a spring in the needle mechanism, just a simple weight. One very interesting feature, however, is what appears to be an adjusting screw at the back end of the needle weight. This does not appear in the illustrations in the 1879 MacKinnon patent, 217,888, nor is it described in the text. It does appear, however, in the first Cross patent, 191,798, filed 1876, granted 1877.
And I wrote, “David, since you’re dealing with MacKinnon, you might want to look at the original Canadian patent from 1875, Canadian patent 4,809. I can’t help with a transcript of the trial, but the abridged report of the case, “Cross v. McKinnon”, Circuit Court, S.D. New York, Mar 8, 1882, appeared in The Federal Reporter, vol. 11, pp.601-2. You might also want to look up the court case between Cross and Livermore, which Cross lost, “Cross v. Livermore”, Circuit Court D., Rhode Island, 9 F. 607; 1881 US App. LEXIS 2056, 1881. The abridged report appeared in The Federal Reporter, vol. 9, pp.607-11. In the Livermore case, Cross applied for an injunction and was refused. In the index for the volume, 9 F. 950, the Livermore case is used as an example in the clarification, or definition of the term “Injunction, When Refused”, on p.950. “A preliminary injunction will be refused where grave doubt exists, on the evidence, whether [or not] there has been any infringement, and there is some doubt as to the validity of the patent. Hence, a motion for a preliminary injunction, made by Alonzo T. Cross, as the patentee of letters patent Nos. 199,621 and 227,416, and reissued letters patent No. 9,716, for improvements in stylographic or fountain pens, against Charles W. Livermore, is denied.” It was deemed that, concerning Cross’s patents, there was some doubt as to their validity! and that grave doubt existed as to whether there had been any infringement! That should have been the conclusion of the MacKinnon case as well!
“Antonios Zavaliangos has a list of legal cases on his blog. The university where he works has access to LEXIS, and he uses it to find all the reports of pen company court cases.”
David Nishimura wrote, “Further digging reveals the summary of the “Cross v. MacKinnon” suit online. It does appear that the spring was the sole matter at issue. This is also found, in the case of “French v. Foley”.
“The answer to who French was appeared in yet another bit of MacKinnon litigation, a case decided in December of 1882. As for further details on French’s identity and other activities, that will take some further digging. As it was, the case cited above shows that a number of our assumptions about both the MacKinnon company and Francis C. Brown’s machinations were false. For one thing, I very much doubt that the Cross lawsuit did all that much to slow down the MacKinnon company. The death of the founder is far more significant, along with the flood of imitators rushing into the market and driving down prices. In any event, it now seems clear that Brown & Sutherland had sold MacKinnon before the Cross lawsuit was decided–and possibly even before it was filed. And that Brown took over the Fountain Ink Co. at some point shortly after the sale of MacKinnon–probably late 1881, or early 1882–his actions behind the screen of Fountain Ink Co. being the cause of French’s lawsuit.”
And I wrote, “Well, this gets us a little closer to French, but he’s still only a surname. Perhaps a bit more information might come forward in this case, “MacKinnon Pen Co. v. Fountain Ink Co.”, Court of Appeals of New York, 93 N.Y. 658, 1883 N.Y. LEXIS 378, argued October 16, 1883, decided October 26, 1883. Sorry, I couldn’t find it in Google Books.
“As for the Cross lawsuit, I agree that the spring in the Cross patent is over blown. I have already said elsewhere that “the spring was constantly submerged in the highly acidic ink of the day, and it very quickly corroded, even though it was made of silver or gold alloys, and it quickly lost it springy tension, and didn’t function very well after all”. It’s ironic that Cross eliminated the spring from his later stylos and used a simple weighed needle just like the one in the MacKinnon stylos, and the MacKinnon company could have successfully sued Cross! I go on to conclude, “Just look at all the drafting pens of our time, the direct descendants of the stylographic pens. Not one of them makes use of the spring idea. Every single modern drafting pen, to the last one, makes use of the weighted needle idea. MacKinnon’s original idea was vindicated. So now who has the last laugh?”
David Nishimura, “That’s strange, in that the link above is also “MacKinnon Pen Co. v. Fountain Ink Co.”–itself an appeal, so it would seem the case was appealed yet again. I can’t find it online, either, so we may have to appeal ourselves to someone with Lexis access.
“The spring may be “overblown” in terms of design, but what we really need to know is its impact in terms of litigation. Were there penalties or injunctions that disrupted the MacKinnon company’s operations? Or did this lawsuit have more to do with backroom haggling of which we have no record, where calling in the lawyers was just another means of applying pressure when negotiation came to an impasse? We should be mindful of situations, past and present, where rival companies sit on stacks of patents of sometimes questionable scope or validity, and rather than file suit at every possible instance of infringement, generally let things go as long as there is
a perceived balance, rather than risk upsetting the whole rickety construction.
“I also wouldn’t exaggerate the weaknesses of the spring system in stylographic pens.
A simple sprung needle, without a weight, was widely used in early 20th-century stylos by companies such as J. Ullrich Co., and was the norm for the English stylos that were so widely exported in the same era. The peculiarity of the Cross system is the combination of the weight and the spring.”
And I wrote, “In the meantime, the Carleton in French, Carleton, & Coffin is definitely George W. Carleton, president of the MacKinnon company in the early 1880s. As for Coffin, he may be Edmund Coffin, Jr., who received a patent for a stylograph in 1882, or it could be his father. And French might be Frederick S. French, who was a pen and pencil maker in Providence, R.I., later in the 1880s. The latter two names are still conjecture. Some of the reporters of these legal cases are better than others when it comes to giving the full names of the people in the cases they summarize, thus leaving us guessing about the identities of those involved.
“I just got back from the law library after looking up this second “MacKinnon Pen Co. v. Fountain Ink Co.” case. I found the appeal, but because they “all concurred”, and “agreed to dismiss the appeal”, there was no court case, and “no opinion” from the judges, and therefore nothing else to report on. All that the report consists of is the case name, “MacKinnon Pen Co. v. Fountain Ink Co.”, and six brief sentence fragments. In that sense it was a disappointment, but in another sense it was very fruitful. Unlike the other reports we have been dealing with, the full names of those involved are given.
“As it turns out, the Coffin in French, Carleton, & Coffin is definitely Edmund Coffin, Jr., whose name is listed “for the respondents”, so that name is no longer conjecture. And Samuel Jones, another new name to me, is listed “for the appellants”. Now, the only one we still need to find is French. Another problem with the reporters of these legal cases is that some of them misspell the names of the people involved. Getting back to the “French v. Foley” case, I looked in my Penmakers book and could find no penmakers named “Clarke”. It is possible that this is a misspelling of “Clark”, in which case the penmaker involved is probably G. S. Clark & Co., the principal names involved being Gilbert S. Clark and James M. Clark.”
David Nishimura, “Good work, and thanks! Quick question, though: aren’t the names listed as “for the respondents” and “for the appellants” the lawyers for the contending parties?”
And I wrote, “The names listed for the respondents and the appellants are the individuals who present the case, and you’re right, they’re usually the lawyers that represent the companies, or individuals. But they might also be a treasurer of the firm, or one of the owners, or some other officer on the board, or someone from the legal department. It just seems highly unlikely that there would be a lawyer and a writing-instrument inventor and patentee with the same idiosyn- cratic name, Edmund Coffin, Jr., both working for the same company. I think it’s the “Jr.” in his name that cinches it. But I still don’t know who Samuel Jones is.”
David Nishimura, “I wouldn’t be at all surprised to have Coffin being both counsel and partner. But Jones might just well be a lawyer, with no deeper connection to the litigants.”
And I wrote, “Or Jones might be a silent partner, and an investor. [Since this was first posted on L&P, a lot more information showed up for my Penmakers book. Carleton is definitely George W. Carleton, Coffin is definitely Edmund Coffin, Jr., and French is Alvah S. French. More on all this in my next post. As for Samuel Jones,] More than likely, he was just a lawyer.”