transmission by telegraph. Morse was the first and original inventor of the electro-magnetic telegraph, for which a patent was issued to him in 1840, and re-issued in 1848. His invention was prior, as well as superior, to those of Steinhiel of Munich, and Wheatstone and Davy of England.¹ Though in some respects a telegraph company is like a common carrier, it is not strictly a common carrier, nor is it held to the same degree of responsibility. A common carrier is an insurer; a telegraph company is held only to a reasonable degree of care and diligence, in proportion to the degree of responsibility. Since telegraph companies undertake to exercise a public employment, in many respects analogous to that of a common carrier, they must bring to the employment that degree of skill and care which a prudent man, under the circumstances, would exercise in his own affairs; and any stipulation intended to relieve them from this duty, or to restrict their liability for its non-use, is forbidden by the demands of sound public policy.2 A telegraph company, by express contract or by reasonable rules contained in a printed notice so brought to the knowledge of a patron as to create an implied contract, may limit its liability for delay or error in transmitting and delivering a message, except as to such delay or error as is caused by its own misconduct or gross want of care. Most of the rules and regulations embodied in the printed blanks for messages have been upheld by the courts as reasonable requirements. While the contract for a message is made only with the sender, companies have been held liable to receivers who have been misled to their damage by negligence in the companies' servants. When a message is sent over a connecting line, the same principles are applied as in the case of common carriers of merchandise. A company cannot protect itself against gross negligence or incompetency in its employees, or as against a remediable imperfection in its instruments. It must receive all messages offered, except such as are illegal or immoral in character, unreasonably lengthy, or in disregard of reasonable rules; and must send them in the order in which they are received, preference being given to government messages. Every message is to be sent as written; if illegible, it may be refused. Liability for negligence extends to the natural and immediate consequences only.3 1 O'Reilly v. Morse, 15 How. 134, 63 (1853). 2 Smith v. Western Union Tel. Co., 83 Ky. 114 (1885), cases. 3 See generally Western Union Tel. Co. v. Reynolds, 77 Va. 180-83 (1883), cases; Pinckney v. Western Union Co., 19 S. C. 82-85 (1882), cases; Western Union Co. v. Blanchard, 68 Ga. 299, 308-10 (1882), cases; White v. Western Union Co., 14 F. R. 710, 718-23 (1882), cases; Jones v. Western Union Co., 18 id. 717, 718-19 (1883), cases; Southern Express Company v. Caldwell, 21 Wall. 270 (1874), cases; 24 Am. Law Reg. 331-39 (1885), 2As to the use of the public domain and materials, the priority of Government messages, and the purchase of lines by the Government, see at length R. S. tit. LXV, §§ 5263-69. Chief Justice Waite, delivering the opinion of the majority (four) of the court, said, in substance, as follows: The important question in each of these cases is as to the scope of the fifth claim of the patent of March 7, 1876, which is as follows: "The method of and apparatus for transmitting vocal or other sounds telegraph- A conversation held through a telephone is a message, or a communication transmitted by a telegraph, -a ically, as herein described, by causing electrical undutelegram.? A telephone is a telegraph. The idea conveyed by each term is the sending of intelligence to a distance.3 lations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth." It is contended that this embraces the art of transferring to or impressing upon a current of electricity the vibrations of air produced by the human voice in articulate speech, in a way that the speech will be carried to and received by a listener In a general sense, “ telephone" applies to any instrument or apparatus which transmits sound beyond the limits of ordinary audibility. But the word is technically and speech is not mentioned by name in the patent. The primarily restricted to an instrument or device which transmits sound by means of electricity and wires similar to telegraphic wires. In a secondary sense, the term ✓ refers generally to the art of telephony; and, ✓ more particularly, to the apparatus, as an ✓ entirety, used in the transmission, as well as in the reception, of telephonic messages.4 The discoverer of a new art is entitled to the broadest claim for it which can be permitted in any case; not to the abstract right to the art without regard to the means, but to all the means and processes ✓ which he has both invented and claimed. Edison's patent, granted July 30, 1877, infringed on ✔ Bell's patent of December 9, 1876. In the five cases (bills for the infringement of letters ✓ patent No. 174,465, of March 7, 1876, and No. 186,787, of January 30, 1877, to Alexander Graham Bell, for "improvements in telegraphy" and "electric telephony," respectively) between the American Bell Telephone Company and Dolbear et al., the Molecular, the Clay Commercial, the People's, and the Overland Telephone Companies, decided March 19, 1888, by the Supreme Court, and known as the Telephone Cases or Dolbear v. American Bell Telephone Company, Gk. tēle, far: phōnē, sound, voice. Whence te-leph'- ony, tel-e-phon'-ic. ? Attorney-General v. Edison Telephone Co., 43 L. T. J703 (1881), Stephen, J.; Telegraph Acts of 1863-26 & 27 Vict. c. 112, and of 1869-32 & 33 Vict. c. 73. Commonwealth v. Pennsylvania Telephone Co., 42 Leg. Int. 180 (Pa., 1885) - Revenue Act 7 June, 1879. Haughey's Case (Hockett v. State), 105 III. 250, 261 (1885), Niblack, C. J.; ib. 599; Central Union Telephone Co. v. Bradbury, 106 id. 9 (1885). American Bell Telephone Co. v. Spencer, 8 F. R. 509 (1831), Lowell, Cir. J.; Same v. Dolbear, 15 id. 448 (1883), Gray, J., 17 id. 604 (1883). at a distance on the line of the current. Articulate invention, as described, "consists in the employment of a vibratory or undulatory current of electricity, in contradistinction to a merely intermittent or pulsatory current, and of a method of and apparatus for producing electrical undulations upon the line wire." The question is not whether "vocal sounds" and "articulate speech" are used synonymously as scientific terms, but whether the sound of articulate speech is one of the "vocal or other sounds" referred to in the claim for the patent. We have no hesitation in saying that it is. In this art-or, what is the same thing under the patent law, this process, this way, of transmitting speech - electricity, one of the forces of nature, is employed; but electricity, left to itself, will not do what is wanted. The art consists in so controlling the force as to make it accomplish the purpose. It had long been believed that, if the vibrations of air caused by the voice in speaking could be reproduced at a distance by means of electricity, the speech itself would be reproduced and understood. How to do it was the question. Bell discovered that it could be done by gradually changing the intensity of a continuous electric current, so as to make it correspond exactly to the changes in the density of the air caused by the sound of the voice. This was his art. He then devised a way in which these changes of intensity could be made, and speech actually transmitted. Thus his art was put in a condition for practical use. In doing this, both discovery and invention, in the popular sense of those terms, were involved; discovery in finding the art, and invention in devising the means of making it useful. For such discoveries and inventions the law has given the discoverer and inventor the right to a patent, as discoverer, for the useful art, process, method of doing a thing, he has found; and, as inventor, for the means he has devised to make his discovery one of actual value. Other inventors may compete with him for the ways of giving effect to the Lamar, J., not being a member of the court, at the • United Telephone Co. v. Harrison, L. R., 21 C. D. time of argument (Jan. 24-Feb. 8, 1887), took no part 720 (1882). 126 U. S. 1, 531-73, Waite, C. J., Miller, Matthews, and Blatchford, discovery, but the new art he has found will belong to him, and to those claiming under him, during the life of his patent. If another discovers a different art or method of doing the same thing, reduces it to practical use, and gets a patent for his discovery, the new discovery will be the property of that discoverer; and thereafter the two will be permitted to operate each in his own way, without interference by the other. The only question between them will be whether the second discovery is in fact different from the first. The patent for the art does not necessarily involve a patent for the particular means employed for using it. Indeed, the mention of any means, in the specification or descriptive portion of the patent, is only necessary to show that the art can be used. The effect of the decision in the case of O'Reilly v. Morse, 15 How. 62, 105 (1853), was that the use of magnetism as a motive power, without regard to the particular process with which it was connected in the patent, could not be claimed, but that its use in that connection could. In the present case the claim is not for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current, in a closed circuit, into a certain specified condition, suited to the transmission of vocal and other sounds, and using it in that condition for that purpose. So far as at present known, without this peculiar change in its condition it will not serve as a medium for the transmission of speech, but with the change it will. Bell was the first to discover this fact, and how to put such a current in such a condition; and what he claims is its use in that condition for that purpose, just as Morse claimed his current in his condition for his purpose. Bell's claim is in all respects sustained by the authority of Morse's case. It may be that electricity cannot be used at all for the transmission of speech except in the way Bell has discovered, and that therefore, practically, his patent gives him its exclusive use for that purpose, but that does not make his claim for the use of electricity distinct from the particular process with which it is connected in his patent. It will, if true, show more clearly the importance of his discovery; it will not invalidate his patent. When Bell applied for his patent, it is true that he had never actually transmitted telegraphically spoken words so that they could be distinctly heard and understood at the receiving end of his line, but in his specification he did describe accurately, and with clearness, his process, that is to say, the exact electrical condition that must be created to accomplish his purpose, and he also described, with sufficient precision to enable one of ordinary skill in such matters to make it, a form of apparatus which, if used in the way pointed out, would produce the required effect. The particular instrument which he had, and which he used in his experiments, did not, under the circumstances in which it was tried, reproduce the words spoken so that they could be clearly understood, but the proof is abundant, and of the most convincing character, that other instruments, carefully constructed, and made exactly in accordance with the specification, without any additions whatever, have operated, and will operate, successfully. The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection; it is enough if he describes his method with sufficient clearness and pre cision to enable those skilled in the matter to understand what the process is, and if he points out some practicable way of putting it into operation. This Bell did. The patent is for both the magneto and the variable resistance methods, and for the particular magneto apparatus which is described, or its equivalent. There is no patent for any variable resistance apparatus. When Bell got his patent he thought the magneto method was the best. Indeed, he said, in express terms, he preferred it, but that does not exclude the use of the other, if it turns out to be the most desir. able way of using the process. Precisely how the subtle force operates under Bell's treatment, or what form it takes, no one can tell. All we know is that he found out that, by changing the intensity of a continuous current so as to make it cor respond exactly with the changes in the density of air caused by sonorous vibrations, vocal and other sounds could be transmitted and heard at a distance. This was the thing to be done, and Bell discovered the way of doing it. He uses electricity as a medium for that purpose, just as air is used within speaking distance. In effect he prolongs the air vibrations by the use of electricity. Reis discovered how to reproduce musical tones. He could sing through his apparatus, but he could not talk. In his first paper on the subject he said "I have succeeded in constructin speech, but that the true way was to operate on an unbroken current by increasing and diminishing its intensity. This he called a "vibratory or undulatory current," not because the current was supposed to actually take that form, but because it expressed with sufficient accuracy his idea of a current which was subjected to gradual changes of intensity exactly analogous to the changes of density in the air oссаsioned by its vibrations. Such was his discovery, and it was new. Reis never thought of it, and he failed to transmit speech telegraphically. Bell did, and he succeeded. Dr. Van der Weyde copied Reis, and it was not until after Bell's success that he found out how to use a Reis instrument so as to make it transmit speech. The patent office was right in holding that James W. McDonough had been anticipated by Reis. The patents of Cromwell F. Varley, of London, were for "improvements in electric telegraphs." His purpose was to superpose upon the ordinary signal current another, which, by the action of the make-and-break principle of the telegraph, would do the work he wanted. As to the alleged anticipation of Daniel Drawbaugh between three and four hundred witnesses were produced whose testimony was taken to establish the priority of his invention. No one of these witnesses could tell how Drawbaugh's instruments were originally constructed, or what the process was by which sound was transmitted when the instruments were in use. All that any of the witnesses could say was that they had used one or more of the instruments at Drawbaugh's shop, had heard sounds and sometimes spoken words through them, and that Drawbaugh told them the sound was carried on the wire by electricity. There was nothing whatever produced in print or in writing on the subject; not even a memorandum or a drawing of any kind. And there is nothing in the testimony to show that Drawbaugh ever told any one how his earlier instruments were made, or what his process was, until he was called as a witness in December, 1881, and explained it in his testimony. This was nearly twenty years after he had begun his experiments, nearly seven after he had made and used alleged "perfectly adjusted and finished magneto instruments," and more than five after microphones as good, or nearly as good, as those of Blake, which were not invented until 1878, had been constructed in his shop. It was also nearly six years after the date of Bell's patent, more than five after the success of Bell's discovery had been proclaimed at the Centennial Exposition in Philadelphia, four after his process had got into public use, three after it had become an established success, and two after he had brought his first suit for infringement. In the meantime, Bell's discovery had been heralded to the world, and Drawbaugh had had abundant means and ample opportunities to make his claim known. During part of this time he had treated his discovery as of secondary importance, and had devoted himself to the advancement of other inventions of his of comparatively small merit. In addition, the instruments of Drawbaugh were fairly tested in March, 1882, at the instance of the Bell Company, and failed to produce satisfactory results; when offered in evidence, they were in mere "remains." Two years afterward other reproductions were presented, differently constructed, and used in a different way. These would "talk," but they were neither made nor used in the same way as the original. These second experiments conclusively showed that the original instruments could not have done what the witnesses supposed they did, and that what they heard was produced by some other means than an electric speaking telephone. We do not doubt that Drawbaugh may have conceived the idea that speech could be transmitted by means of electricity and that he was experimenting upon that subject, but to hold that he discovered the art of doing it before Bell did would be to construe testimony without regard to the ordinary laws that govern human conduct. We therefore decide that the Drawbaugh defense has not been made out. The charge that after Bell swore to his application on January 20, 1876, and after the application had been formally filed in the patent-office on February 14, 1876, an examiner, who got knowledge of the Gray caveat put in afterward on the same day, disclosed its contents to Bell's attorneys, and that they were allowed to withdraw the application, change it so as to include Gray's variable resistance method over Bell's signature, and over the jurat, and then restore the application to the files, thus materially altered, as if it were the original, and all this between February 14 and 19, is not sustained by the testimony. Nor was Bell's claim as a whole, being for an electric telephone, in the construction of which the plate or diaphragm, the permanent magnet, the sounding box, the speaking tube, etc., or any of them, are used, and not for the several things in and of themselves, anticipated by