March 10, 2016
Waterman’s v. Shipmans
, the Ideal pen war of 1888, the second fountain pen war.
[Posted on L&P in September 2005, August 2007, March-April-May 2012, and January 2013.]
The “Sheaffer v. Barrett” case is important because it involves so many of the penmakers at the time. Dennis Bowden wrote that Jim Lobb told him he found the original “Sheaffer v. Barrett” transcript in the files of the Circuit Court for the Northern District of Illinois, Chicago.
Here’s another seminal pen battle, the second fountain pen war, covered by two court cases that involved many of the early penmakers. The earlier-decided “Waterman v. MacKenzie[sic]”, case, 138 U.S. 252, 11 S. Ct. 334, was argued on Nov 19, 1890 and decided on Feb 2, 1891. The defendant’s name was misspelled in the title. It’s actually McKenzie. And the complete list of defendants included James A. McKenzie & Samuel R. Murphy, owners of Harvard Pen Co. and Siphon Pen Co., but also included the Yale Pen Co., Rowley Pen Co., and Lapham & Bogart, the distributors of the Rowley. But the major lawsuit, “Waterman v. Shipman”, was started in 1888, and not decided until Apr 18, 1893. The summary of the case appears in The Federal Reporter, vol. 55, pp.982-987, but the original court file may still exist in the original circuit court. The report even cites the earlier-decided case, but of special note is an 1886 pamphlet, which is called “scandalous” on p.987 of the case report. The author of this 25-page exposé, a rival of Waterman, is unnamed in the report, but is revealed in the transcript. That rival was the Yale Pen Co. Now, get this. The full title of the booklet is “Penthemis, An Exposé of the Assumptions and Business Methods of a Dealer and Reputed Inventor”. The fairly long synopsis of the case in The Federal Reporter makes for some interesting reading, but it’s only a summary, and the best evidence of all is contained in the transcript of this case. The transcript of the “Waterman v. Shipman” court case is obviously the whole basis for the Bob Tefft article “The Stormy Birth of Waterman”, in Pen World, vol. 2, no. 4, Summer 1989, pp.19-22, although the court case isn’t mentioned specifically by title in the article. Tefft covers the court case fairly well, but I wish he had dealt with certain aspects of the case in more detail, especially the booklet that was filed as an exhibit in the case. Tefft also covers another aspect of the case that is almost glossed over in the report. The Shipman lawyers rested part of their defense on “the prior invention of Fisher”, see p.987 of the report, but Tefft tells us on p.19 of his article that on May 24, 1883, Waterman placed an order for “hard rubber feeds based on his new design” with machinist and model maker Herbert Fisher. And then on p.20 he writes, “It was not until June 28, 1883, that Waterman finally got around to filing an application for a U.S. patent on his new feed. When he did, he discovered a [prior] competing application had already been filed by none other than Herbert Fisher, the craftsman hired by Waterman to produce his feeds. [Fisher] had claimed the design for his own! To compound the situation, Waterman’s lawyers failed to respond to the Patent Office’s request for testimony, and the question of priority was decided in favor of Fisher. The matter would not be finally settled for over [a year]. In August of 1884, Fisher finally agreed to give up any competing claims in return for a payment of $250”. I want to see the transcript! And it’s absolutely imperative to find a copy of “Penthemis”! But I’m more interested in the incidentals and circumstantials than the essentials and fundamentals of the case. And here are three look-a-like pens, the Shipman, Waterman, and Holland pens. Now, all we need is an example of a fourth one, the Fisher pen, if there is one.
Rob Astyk wrote, “I believe that the court in the Shipman suit originally was the Southern District of Manhattan and the state, not Federal, court. That case meandered through the state and Federal courts because one of the issues was the contract between Waterman and Shipman that transferred ownership of both Waterman 1884 patents to Shipman. Key to the Shipman suit was a prior ruling of the U.S. Supreme Court in “Waterman v. McKenzie”, handed down on Feb 2, 1891. Lewis Waterman lost his patent infringement suit against James A. McKenzie and Samuel R. Murphy because he was not the owner of his patents, and therefore, had no standing to sue McKenzie and Murphy. The court ruled that Waterman had transferred ownership of the patents to his wife Sarah, and from Sarah had mortgaged them to Asa L. Shipman. When the mortgage was not redeemed as agreed, the collateral for the mortgage, the patents, became Shipman’s property. The U.S. Supreme Court determined that Shipman was, in fact and in law, the owner of those patents and that Lewis E. Waterman’s only interest in those patents was an exclusive and unrevoked license to manufacture pens under those patents. That license became the crux of the Shipman suit. Justice Gray, writing for the majority in “Waterman v. MacKenzie”, held that the only circumstance that could void Shipman’s ownership interest would be a clear violation of Waterman’s license to manufacture. In the suit of “Waterman v. Shipman” (130 N.Y. 301; 29 N.E. 111), James D. & Edward L. Shipman, his sons, co-partners, and heirs were named because Asa Shipman had died in 1888. Waterman appealed an earlier, unfavorable decision in the light of the McKenzie decision on Dec 8, 1891. The New York Court of Appeals found that Asa L. Shipman’s brief foray into manufacturing pens under the Waterman patents in April and May 1888 had violated Lewis Waterman’s exclusive license to manufacture, thereby voiding the mortgage that had transferred ownership to Shipman and returning patent ownership to Waterman. The U.S. Second Circuit Court of Appeals issued an affirming decision on April 18, 1893, 55 F. 982, finally closing the issue.
“We definitely need to examine the transcripts. Of even greater interest is the pamphlet and its contents. Scurrilous attack or not, I think most of us would love to hear his fellow penmaker contemporaries dish the dirt on L. E. Waterman. Let me also suggest that there is an opportunity for great research here for anyone who might be interested. In most major cities, especially those in which a U.S. Circuit Court of Appeals sits, there are going to be court records of suits like the ones above. Digging into those files going back into the 1870s-to-1920s, and copying transcripts, and even getting lists of suits will give us all a clearer picture of the early pen business in the U.S.”
David Nishimura wrote, “The underlying material [in the “Waterman v. Shipman” case] was not found in any public institution, but rather in a flea market, so likely was a copy belonging to one of the parties in the trial. It was reportedly quite voluminous, and was being lent around between a handful of older collectors. Take note, this does not mean that another copy of the full transcript might not be on file somewhere else, so it would still be well worth tracking down. Ever since that article was published, I’ve wanted to get my eyes on the documentation behind it. It seems that it has changed hands many times, including some long loans.”
And I wrote, “One of the biggest disappointments in The American Stationer is the lack of any Waterman’s pen ads in the 1883, 1884, 1885, and 1886 volumes. In fact, the first time the name “Waterman’s” appears in an ad in the magazine is in an Asa L. Shipman’s Sons ad that starts appearing on July 14, 1887, p.50. This was after Waterman parted ways with this wholesale stationer who was an early partner with and investor in Waterman’s penmaking venture. It’s a simple text-only ad, and the name “Waterman’s Ideal Fountain Pens” appears last in a list of products that Shipman dealt in. The Shipman company continued having the pen made for them, and continued selling the pens, even while Waterman was taking them to court over it, so these ads are, technically speaking, not Waterman’s ads.
“A few months later a second type of Asa L. Shipman’s Sons ad, this time with some imagery, starts appearing on Sept 8, 1887, p.550. But the image is of some of their other products, and the size of the type for the line about pens is smaller than the type for the other products in the ad.
“Then the phrase “Waterman’s Ideal Fountain Pens” disappears altogether in the third type of ad that starts appearing on July 26, 1888, p.206.
“And this is why. A fourth distinctly different ad starts appearing on Oct 18, 1888, p.973, and this one finally has a picture of a pen in it. This pen looks exactly like a Waterman’s pen, but this pen has the name “Shipman’s Fountain Pen” on the barrel.
“And an advertising article on Nov 8, 1888, p.1123, has the same picture and an explanation. It’s not a pen with the Waterman’s three-fissure feed. Instead it has the spiral-groove feed in US patent no. 397,413.
“Then finally this ad started appearing on Nov 15, 1888, p.1176. The Waterman’s company was finally free of the Shipman Co. even though the court case wasn’t settled until the early 1890s.
“This article from May 3, 1888, p.899, is about the appointment of a receiver to take charge of the estate of L. E. Waterman.
“More elaborate ads for the Shipman’s pen with the spiral feed also appeared in The Century Magazine, January 1890, and October 1890.
“At last, the first Waterman’s ad makes its late appearance in Am. Stat., July 3, 1890, p.31, but it’s not for their pens. It’s for their traveling ink bottles with their eyedropper stoppers. Two types were available, one for the desk top, and one for the pocket, or suitcase of a traveler. Their pens are mentioned only peripherally in a short line at the bottom of the ad, “Manufacturers of Waterman’s Ideal Fountain Pens”. It’s strange that they didn’t place any images of their pens in this ad, let alone place any ads for their pens in this magazine this late.
“And here’s an article about the “Waterman’s Ideal Fountain Pen Ink Filler” from Am. Stat., July 3, 1890, p.19. It refers to a patent, even though the Barnes patent wasn’t applied for until 1891, and not issued until 1892, which is to be discussed in this later blog topic.
“The first images of Waterman’s pens in Am. Stat. don’t show up until Oct 23, 1891, p.890, and Dec 3, 1891, p.1174. What a shame that they are so late, since that means that we are robbed of any images of the early pens, but what makes up for it, somewhat, is that we are shown the large variety of models available just 7-to-8 years after Waterman’s started manufacture.
“So even in 1893, there are no Waterman’s ads in Am. Stat., but here’s a curious coincidence. In the 1892 Shipman’s Sons ads, they still featured a fountain pen, but in the 1893 Shipman’s Sons ads, they switched to advertising their stylograph.
“And this may be the reason why. The Shipmans lost the court case initiated by Waterman’s in 1893, and had to stop infringing on Waterman’s fountain pen patent, and that Waterman’s was “entitled to an accounting”, and that’s the coincidence.
“This is what the Shipman’s Sons ads had dwindled down to in the first half of 1894, an ad for their “Common Sense Binders”. It was their staple before they got into pens, and it was still there to fall back on after the pen market had dried up for them.
“It’s because in 1894 they were “burning the midnight oil” while creatively “balancing” their books, and probably trying to figure out the entitled accounting that they owed Waterman’s in the above mentioned infringement lawsuit that they lost.
“Finally! a Waterman’s pen ad shows up in Am. Stat. on Nov 1, 1894, p.815. It’s only 10, or 11 years late. It’s ten years, if you use the November 1884 Century ad as a starting point, and eleven, if you use the December 1883 ad that David Nishimura found. It almost looked like they were avoiding placing ads in Am. Stat. as long as the Shipman’s Sons ads were still in the same magazine. They wanted the Am. Stat. roost all to themselves, or else they wouldn’t play. The ad says that the two-kerf feed “has been proved by ten years’ use”, and it shows the two types of pen styles in one ad, the old straight-cap type made since 1883, and the “new style of holder” since 1894. The ad appeared at about the time of the introduction of the new cone-cap style, which Waterman’s stole unrepentantly from A. A. Waterman without attribution and without giving him his due credit, his entitled accounting. But the appearance of the new type didn’t mean the demise of the old type, which was kept in production by the old fogeys well into the self-filler era.”
At 12:00 am