Thursday, September 16, 2004

Did Marconi foresee more than point-to-point radio?

In addition to his suggestion that the inventors of the transistor anticipated uses only in hearing aids, Mark Lemley (based on previous statements by Nathan Rosenberg of Stanford University) suggested that Marconi only foresaw applications in radio involving a transmission from one point to one point.

A basic problem with this is that it conflates the business model of Marconi (which did involve point-to-point transmissions called Marconi-grams) with the technical understanding of Marconi. This issue is somewhat like the improper practice of limiting the claims of a patent to the commercial embodiments of the patentee (e.g., Rawlplug Co. v. Illinois Tool Works, Inc., 11 F.3d 1036, 1041 (Fed. Cir. 1993)).

The issue is further discussed in the September 2004 issue of Intellectual Property Today-->


Lemley, in referencing work of Rosenberg, has suggested that Marconi only envisioned point-to-point communications, rather than broadcasting, and that Marconi is thus an example of an inventor who did not see the full scope of his invention. This may be an oversimplification of the situation, which does present interesting patent issues. First, Marconi's invention was radio telegraphy, rather than radio telephony, which telephony was established by Fessenden. Second, Marconi established a successful business based on his embodiment of radio telegraphy. His embodiment may not have been the best technology through most of the time he dominated radio telegraphy, but it did fill a need. Third, Marconi was certainly aware of the point-to-many points nature of radio, both from the early growth of amateurs who listened to radio telegraphic messages and from an incident related to the Titanic disaster, in which radio telegraphic instructions about restriction of the news of the disaster were intercepted by the U.S. Navy. Fourth, although Marconi initially disbelieved in the science of Fessenden's CW technology which facilely permitted radio telephony, after Marconi saw that it worked, he obtained a license. However, radio telephony was blocked by the failure of diverse patent owners to come to an agreement. This impasse was broken by World War I, with the U.S. government combining the technologies, which, among other things, allowed President Wilson to make a radio address to the German people. After World War I, Marconi was forced out of the American radio business.

Of the technology issue, Marconi initially ridiculed Fessenden's suggestion that a wireless signal could be produced by applying a high frequency [HF] alternating current to an antenna. Early workers in the art were nearly unanimous in the view that a spark was essential to wireless, an error in understanding that delayed the commercial development of radio telephony. The lack of correct scientific understanding by others did not keep Fessenden from getting patents, but it did alter the way in which he got financial backing. The continuous wave [CW] approach of Fessenden was the pathway for radio telephony, which in turn was necessary to open up mass broadcasting. A court opinion stated: "in effect it has been established that the prior art practiced, spark, or damped wave transmission, from which Fessenden departed and introduced a new or continuous-wave transmission, for the practice of which he provided a suitable mechanism which has since come into extensive use." The CW technology of Fessenden presented problems distinct from the spark gap technology of Marconi. First, at a distant station where the received signal was weak, and the receiver had to be carefully tuned to this narrowband signal in the expanse of unused radio spectrum. The broadband spark signal was more easily found. Second, the coherer-type detector used for reception of spark transmission was ineffective for detecting CW signals. In 1914 the Marconi Company purchased a license to Fessenden's patents from the National Electric Signalling Company (NESCO), whose interests were later controlled by the Radio Company of America (RCA). RCA was incorporated October 17, 1919, to control the radio-related patents of GE, AT&T, Westinghouse and United Fruit, according to a plan of GE lawyer Owen D. Young to buy out American Marconi and create an American monopoly. The Navy approved of the plan to keep radio out of the control of British Marconi.

In proving he was right about the technology, Fessenden also established the radio broadcast. Through a contract with the United Fruit Company (which had installed wireless systems on the boats to control the harvesting and marketing of bananas in Puerto Rico), Fessenden gave a Christmas Eve present to his customers on the dozen or so ships of the United Fruit Company at sea. He told the wireless operators to listen on Christmas Eve for "something different". At 9 pm on December 24, 1906 the operators heard the familiar "C.Q." ( meaning "listen all stations" and further demonstrating the point to many points nature of early radio telegraphy) from his transmitter at Brant Rock and then they heard first Fessenden's voice speaking, and later Christmas music.

The issue of "broadcasting" was involved in the Titanic disaster. The initial distress call from the Titanic was CQD (listen all stations, distress), later followed by SOS, with many ships, sadly not including the Californian, receiving the signal. After the sinking, messages from the mainland to the Carpathia (which ship carried surviving Titanic radioman Harold Bride), which were intercepted by the U.S. Navy (indeed, the New York Navy Yard maintained an "intercepted messages" book), proved to be an embarrassment for Marconi, who was in the United States (and booked on the return trip of the Titanic). The New York Times, which benefited mightily from its coverage of the Titanic disaster, was to pay Bride (and another person Cottam) roughly $1000 each for their exclusive story, and radio telegraphy was used to inform them to keep their mouths shut until the Times contacted them. Unfortunately, the messages (called Marconi-grams in those days) were intercepted, and a New York Times rival, the New York Herald, had a field day (the page one headline of April 21, 1912 was 'Keep Your Mouth Shut, Big Money for You,' was Message to Hide News). Further, Marconi himself was questioned about this in the Titanic inquiry headed by U.S. Senator Smith.

Endnote 12: Again, footnote 29 of 71 U. Chi. L. Rev. 129 (2004). The article by Carol Haber, Electronic Breakthroughs; Big Picture Eludes Many, Electronic News, 1994, 40, 46, amounts to an interview with Professor Nathan Rosenberg of Stanford. Of Marconi, Haber writes: “The inventor of the radio, Guglielmo Marconi, expected its users to be steamship companies, newspapers and navies who needed directional, point-to-point communications.” These entities were users of Marconi’s radio telegraphy, but that does not mean Marconi thought radio telegraphy (or the radio telephony of Fessenden) was limited to point-to-point. In a different publication (the McKinsey Quarterly, June 22, 1995), Rosenberg wrote: “The idea of communicating to a large audience of listeners rather than to a single point seems never to have occurred to the pioneers of radio.” Early on in radio, there was a large group of listeners (amateurs). Further, early broadcasting in the 1920's was directed to selling receiving sets as much as anything else, somewhat like the later waggish assertion that the broadcasting of Bonanza was directed to selling color television sets. [The contents of footnote 29 appear elsewhere, including 56 Stanford Law Review 1345 at footnote 160.]


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