History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 9 -- The Feud Between Dr. Thornton and Robert Fulton
THE FEUD BETWEEN DR. THORNTON AND ROBERT FULTON
William Thornton worked with John Fitch on his steamboat back in the late 1780s and early 1790s, and he was very protective of the rights of the late John Fitch to his steamboat and of his own rights to improvements which he invented then and later. When Robert Fulton began work on steamboats and approached state legislatures to secure from them the exclusive right to work steamboats within their boundaries, William Thornton was incensed. He worked with whatever allies he could find to thwart Mr. Fulton at his every attempt to monopolize what Thornton considered common property in steamboats as invented earlier by Fitch and others.
On November 24, 1808, Dr. Thornton wrote to Colonel John Stevens, who was also building and operating steamboats. [footnote 1] Thornton informed him that he had written to New Orleans to warn against granting Robert Fulton an exclusive right to navigate the Mississippi River with steamboats. He also said that he had met with Mr. Fulton and mentioned the subject of the patent for the North River to him. After Fulton rebuilt a boat named the Clermont, he had renamed it the North River. Thornton was of the opinion that Fulton was preparing to take out a patent for a steamboat. He noted that Fulton had not yet taken out any patent whatever, and that, therefore, Thornton could say nothing more than that the earliest information would be given to Stevens when Fulton applied.
On January 11, 1809, Colonel Stevens wrote to William Thornton [footnote 2] from New York, asking for a copy of Fulton's patent when it was taken out. Thornton replied [footnote 3] on January 23 that Fulton had just applied on January 19. Thornton had taken out a patent of his own on January 16 for some of his own improvements on steam engines. Thornton told Stevens that he would determine if Fulton would permit a copy of his patent to be given out, and, if so, he would inform Stevens and have a copy made.
Stevens wrote back to Thornton on January 28, requesting a copy of Thornton's patent, and also expressing surprise that his ability to get a copy of Fulton's patent could depend upon permission from Fulton. [footnote 4] Thornton wrote to Stevens on February 15, stating that Fulton had declined to allow a copy of his patent to be given out. [footnote 5] Thornton said that it had not been the practice of the Patent Office to give out copies of patents without permission of the patentee except in cases where suits in law had rendered it necessary. Thornton felt that he could not, with propriety, send Stevens a copy of Fulton's patent, but stated that if Stevens desired it, he would lay the request before the Secretary of State or Attorney General and act accordingly. [Pg 51] Thornton said that the Secretary of State had decided such a question in favor of an applicant that same day, and that it might become a general rule. He also said that with respect to his own patent, he had no objection whatever to furnishing a copy.
[Page 51 illustration: Portrait of Robert Fulton]
On February 17, Horace Binney wrote to John Stevens from Washington, [footnote 6] stating that he had visited Dr. Thornton to request a copy or an abstract of Mr. Fulton's specification. Thornton informed Mr. Binney that, by a recent direction of the Secretary of State, copies of patents were to be given upon request in cases of this kind, and that accordingly he would have a copy made for Stevens. He said that it would be a work of some time, because of the press of business in the office, as well as the length of the specification. Binney wrote that Thornton had told Fulton that his patent was not worth sixpence. On February 21, Nicholas King gave Colonel Stevens' agent a receipt for $12 for making a copy of Thornton's steam engine patent. [footnote 7]
On May 12, William Thornton wrote to Robert Fulton, [footnote 8] indicating that Colonel Stevens had asked for a copy of Fulton's patent, but that Thornton was unwilling to supply it contrary to Fulton's wishes until the Attorney General answered the Secretary of State's request for an opinion as to whether it should be supplied.
On July 8, Dr. Thornton wrote to Colonel Stevens, [footnote 9] stating that he had been instructed by the Attorney General that he should furnish copies of patents to those who requested them. He wrote that if Colonel Stevens requested a copy of Fulton's patent, it would be furnished. On July 28, Colonel Stevens wrote to Thornton, [footnote 10] declining a copy, stating that Fulton was no longer threatening him with patent infringement, even though he was running his boat on the Delaware between Philadelphia and Trenton. Stevens also indicated that Thornton had offered to make him a partner under Thornton's patent, which offer Stevens declined.
In his May 12 letter to Fulton, Thornton went into some detail about why he considered the subject matter of Fulton's patent to be old. He said that the use of wheels on the sides of a boat was proposed at the time of Isaac Newton and published in the Lexicon Technicum nearly a hundred years ago. Thornton also said that he patented the wheel at the stern of the boat before he knew Fulton had any idea of such an invention. Thornton stated that Robert [Pg 52] Fulton's description of proportions of his boat could not be the subject of patent rights, because the law expressly excluded different proportions or mere variations in form from being patentable improvements.
Thornton seems to have been attempting to force a business connection between himself and Fulton. He suggested that Fulton read Thornton's patent, and he suggested the possibility of a connection with Fulton, in which he would give his aid in the prosecution of the business. Most peculiarly, Thornton stated that the Lexicon Technicum he referred to was in his possession and that he had kept its contents secret from those with whom Fulton was contending.
Thornton stated that the proportions proposed by Fulton were exactly the same as were used in the boat used by John Fitch's company in which he held shares many years ago. "Our boat was exactly eight feet wide and sixty feet keel -- yours twenty by 150, each equal in length to 7 1/2 times the breadth! We also used a machine on Watt's and Boulton's principles. The cylinder I had prepared for a boat, intended for the Mississippi, of 25 tons burthen, was 3 feet 6 inches diameter, 4 foot stroke, the piston to work 30 single strokes a minute. All the proportion of force and velocity depend after this on the quantity of steam supplied by the boiler, for the size of the paddles or buckets of the wheel may be varied with little expense accordingly, but will forever vary according to the force or high power of the steam, which may be varied ad infinitum"
On January 29, 1810, William Thornton wrote to the Speaker of the Senate of Ohio, among others. [footnote 11] He opposed an attempt by the Fulton interests to obtain from the legislature of the state exclusive steamboat navigation rights on the waters in the state. He said that this would effectively deprive many ingenious inventors and mechanics of the benefits expected from the patents which they had taken out. It would also deprive the public of the free use of inventions which they should have after the expiration of the patents.
William Thornton also wrote a similar letter [footnote 12] to the Virginia legislature in 1810, opposing the grant of an exclusive steamboat navigation right on the waters of Virginia. The letter was laid before the Speaker of the House of Delegates after he had put the question of the third reading of the bill. The vote had not been taken, but the members were prepared to pass the law without any objection. The moment after the Speaker read Thornton's letter, he put the question again, and the vote was unanimously against the bill.
About January 1811, William Thornton wrote a similar letter to the legislature of the State of New York. [footnote 13] He suggested that the rapid progress of the useful arts in England dated from the time when patents were first granted. He stated that the American people made a constitutional provision for granting [Pg 53] patents in order to achieve the same results, and that the granting of patents was a federal function, which should be understood to preempt the state's right, formerly exercised, of granting patents of its own. The ability of each state to grant patents would make the federal goals impossible to achieve. Congress required patent owners to relinquish previous state patents in order to obtain corresponding federal patents. This clearly suggests that states should not now be granting new state patents. Thornton requested New York to reconsider its earlier grant of a monopoly for Livingston and Fulton to navigate the rivers of New York by steam, because John Fitch had a federal patent on a steamboat in 1791. When that patent expired, the public obtained the right to navigate by steam anywhere in the United States.
Fulton replied that while the United States may grant to an individual a patent to his invention, that simply means that no one shall use the patented invention without his consent. [footnote 14] The United States cannot authorize him to use his patent where he pleases. One may have a patented bridge and raise a company to build it, but one cannot build it over any river in the Union without the consent of the state through which the river runs. The state of New York can grant an exclusive right to a ferry over the North River for any number of years, and the owner of a patent on a steamboat can not use that boat on the ferry without the permission of the owner of the right to operate the ferry. The state has, he said, granted to Mr. Livingston and Mr. Fulton the right to operate a ferry from New York to Albany and, regardless of the patents which may be granted for steamboats, the patented steamboats cannot be navigated over their route without their consent.
On November 29, 1811, Robert Fulton wrote a nominally polite but obviously threatening letter to Dr. Thornton, [footnote 15] apparently demanding that he sign a previously provided "certificate which is an honest statement of facts" in order to "correct in the public mind an infinite injury" said to have been caused by Dr. Thornton's statements. Fulton threatened "more rigid measures" if this were not done. Fulton stated that it was not appropriate for the director of the Patent Office to volunteer writings and opinions on Fulton's United States patent or state grant. This, he said, was only for the United States courts and those whose evidence was requested. He also objected that Dr. Thornton had been attempting to force himself into a partnership with Fulton. Fulton also said that after he had proved the superiority of water wheels for taking a purchase on the water, Thornton patented Fulton's invention of a wheel behind a boat, and then asked Fulton for $5,000 per year to cede to him his own inventions. Although Thornton cited Fitch's steamboat to Fulton, Fulton maintained that his specific invention had no resemblance to Fitch's boat. He said that comparisons with dormant and unproductive [Pg 54] ideas could not be used to invalidate a patent, for otherwise a host of abortive ideas would destroy any patent and no useful inventor could be safe. Fulton requested that Thornton call on him to render all the justice in his power in order to prevent further trouble.
[Page 54 illustration: Portrait of James Monroe]
Apparently, Thornton did nothing or not enough to satisfy Fulton, because on February 13, 1812, Robert Fulton wrote to Secretary of State James Monroe to complain of Thornton. [footnote 16] He stated that Dr. Thornton was involving inventors in endless embarrassments and should be removed from the Patent Office. There were all sorts of restrictions on the dealings of various government officials to protect them from conflicts of interest, but, said Fulton, Dr. Thornton took patents of his own and then disputed the rights of those who interfered with his pretensions.
Fulton remarked that in January 1807 when he saw Thornton in Washington, Thornton told him that 18 years earlier in company with Mr. Fitch he had made a steamboat run eight miles an hour in still water. However, Fulton observed, such a speed is impossible and is sufficient proof that Thornton did not understand the principles which govern the construction of successful steamboats. Thornton, however, had not taken out a patent for his pretended portion of the invention in eighteen years or made any effort to put it in practice, so that the nation was not benefitted by the invention even if he made one. In the patent of Mr. Fitch, Dr. Thornton's name is not mentioned. Fulton said that in 1807 he set his first boat in motion on the North River with a wheel on each side of her, and the boat ran that autumn and the season of 1808. Still, Dr. Thornton did not take a patent for his pretended inventions. In the autumn of 1808, Robert Fulton came to Washington, and while there he began the drawings, specifications and descriptions for his patent, which took him nearly three months to complete. He said that he informed Dr. Thornton he was preparing the patent application, and at that time, one month before Fulton was ready to file his application, Thornton took out a patent for himself. This was eighteen months after Fulton's boat had been running on the North River, and obviously, in Fulton's opinion, was done to block him in using his own invention.
Fulton told Monroe that Thornton then offered to enter partnership with Fulton and Livingston for equal thirds. When this proposal was rejected, he [Pg 55] offered his assistance for one eighth of the net profits. When this second offer was rejected, Thornton wrote two letters to prove that Fulton's patent and state grant were not legal. Fulton maintained that this action by the head of the Patent Office encouraged others working in this field to infringe his rights and involve him in a ruinous lawsuit. Thornton made another attempt to force himself into partnership in January 1811. Fulton provided Monroe with a copy of a letter in which it appears that Thornton proposed to protest to the New York legislature against monopoly grants to Fulton unless he were taken into partnership. When Thornton's offer was not accepted, he told an acquaintance of Fulton that he intended to do everything in his power to destroy Fulton's patent.
Fulton asked Monroe to make Thornton sensible of his duty. saying: "His business is perfectly neutrally not to interfere with patentees or give opinions. Leave that to the law. If he has genius for inventions and can live by it, he has a right so to do." But he has no right to take out patents for himself, deal in patents, and be director of the Patent Office.
Almost three years later, on December 27, 1814, Robert Fulton wrote another letter on the same subject to Secretary of State (and of War) James Monroe. [footnote 17] The only major difference in the substance of the letter was to the effect that Dr. Thornton had anticipated another of Fulton's invention, to the great injury of Fulton and the grievous injustice to the useful arts and artists of the country.
Immediately, on December 27, 1814, Secretary of State Monroe proposed a regulation to prevent the Superintendent from having an interest in patents, beginning the following February, in accordance with similar restrictions placed on other officers of the government. [footnote 18] Dr. Thornton replied [footnote 19] that it seemed that Fulton's threats had succeeded in preventing him from having a right that every other citizen of the United States had. He pointed out that he was given a salary of only $1,400 per year, and thus had to have outside income in order to live, while the other officers thus restricted were given salaries of up to $5,000 per year and had no such necessity. Other officers were prohibited certain interests because they were entrusted by the government with secrets which would give them an unfair advantage over their fellow citizens. But the Superintendent of the Patent Office could have no such unfair advantage, because a patent application, when filed in the Patent Office, was dated and entered. If someone were to try to take advantage of an opportunity to read such a document, it would be apparent immediately. The Superintendent had no authority to refuse a patent except for lack of citizenship, insufficient witnesses, or nonpayment of fees, and could not affect the right of an applicant to obtain his own patent.
Soon afterwards, on January 9, 1815, Fulton wrote to Attorney General Richard Rush, asking what had been done about his complaint to Secretary of State Monroe. [footnote 20] He wrote that Thornton was causing him great harm, and that, while asking nothing for himself, he wanted Thornton to burn all his patents if he was to continue in office. Otherwise, he intended to go to law against Dr. Thornton.
James Monroe wrote a note [footnote 21] in January 1815, mentioning his refusal to sign a patent to Dr. Thornton the previous December, apparently beginning to apply the prohibition well before February 1815. However, it appears that this prohibition was withdrawn, since the records indicate that Superintendent Thornton was granted a patent for paddle wheels on steamboats on December 27, 1814, and he received one additional patent on July 31, 1827, less than a year prior to his death.
In February 1815, Dr. Thornton wrote to Benjamin Henry Latrobe, who was also interested in steamboats. Latrobe wrote back, [footnote 22] thanking Thornton for information provided about the possible invalidity of Fulton's patent. But, Latrobe observed, Fulton had never been willing to rely on federal patents, and would only build steamboats where he had previously obtained a state grant independent of patents. Latrobe said that no one was as well acquainted with the details of Fulton's maneuvers as he was. He said that he was somewhat ashamed that at his age and with his experience he should so blindly have confided in Fulton, and that he "had not sufficient penetration to see under his exterior" to "the selfishness" and "low cunning of his character."
Robert Fulton died suddenly on February 24, 1815. In July 1817, Superintendent Thornton wrote to Attorney General and acting Secretary of State Richard Rush, giving his version of the controversy. [footnote 23] Thornton said he had evidence that Fulton had taken his ideas for steamboats from papers which John Fitch took to France in the early 1790s. Thornton printed a pamphlet in 1812 describing the work of Fitch and its relation to the work of Fulton. [footnote 24] Thornton sent a copy of the pamphlet to Fulton, and said that Fulton swore vengeance and vilified him to members of Congress until Thornton sent him a message via a friend that he would cut off his ears if he mentioned his name again. Thornton told Fulton to set forth his complaints, sign them, and send them to the Secretary of State, who could be counted on to do justice. The Secretary endorsed him to Congress, and Fulton declared that one of them must quit the public service. Thornton promised that in three months Fulton would not be able to show his face in public. Fulton had all of his friends join in the attack against Thornton. Thornton declared that he wrote something to Fulton and sent it to him in New York, that he read it with symptoms of horror, and died a few days [Pg 57] later. Thornton said that Fulton had sought first to have him fired, but as he "had no salary worth considerations," he decided to prevent him from taking out patents and thus have him resign. Thornton said that the Secretary allowed him a period of time to take out patents on his prior inventions, after which he would be forbidden to take out patents. He had in 1817 never taken another patent because he had no money to pay for them. Thornton had appealed to the President to have this limitation on his right to take out patents revoked, and the President had referred the matter to the Attorney General for decision. In the July 1817 letter to Richard Rush, Thornton asked for a favorable decision from Rush as the Attorney General and acting Secretary of State.
[Page 57 illustration: Blodgett's Hotel (Upper Right) from 1803 watercolor]
Go to top page of Patent Office history material