Sunday, March 25, 2007

Issues of priority, whether writing about Gettysburg or embryonic stem cells

In the context of a post on californiastemcellreport relating to the Cha/CIRM matter, I wrote:

I have been interested by the disregard of priority by certain historians. A recent book on the prison at Andersonville published by the University of Tennessee Press contained significant material plagiarized from an earlier book. The "theft" was discovered only when the earlier author was given the later book to review. A different book, on Custer at Gettysburg published by Putnam, portrayed as "novel" a theory that had been published many times before.

Subsequently, I came across another review of the Gettysburg book (Lost Triumph: Lee's Real Plan at Gettysburg—And Why It Failed by Tom Carhart (2005)) which included the following:

One would naturally assume that to date, everything that could or should have been published about the Battle of Gettysburg and its aftermath has already been written. Just in recent years, however, such works as Mark H. Dunkelman, Gettysburg's Unknown Soldier: The Life, Death, and Celebrity of Amos Humiston (1999); Thomas A. Desjardin, These Honored Dead: How the Story of Gettysburg Shaped American Memory (2003); James M. Paradis, African Americans and the Gettysburg Campaign (2005); Margaret S. Creighton, The Colors of Courage: Gettysburg's Hidden History (2004); Earl J. Hess, Pickett's Charge: The Last Attack at Gettysburg (2001); and Carol Reardon, Pickett's Charge in History and Memory (1997) have revealed that the subject of the Civil War's most famous battle is by no means exhausted. Tom Carhart's and Kent Masterson Brown's seminal volumes also aptly demonstrate that the subject of Gettysburg is still a vital and volatile topic, with enough material for both the student of the Civil War and academician alike to relish and interpret. 1
Since the Civil War, a multitude of theories have been promulgated to explain the defeat of Lee's Army of Northern Virginia at Gettysburg, from the failure of Pickett and Pettigrew's Charge to fuse problems or faulty shells used by the Southern artillery. Years after the close of the war, former Confederate, General Harry Heth, passed judgment by stating that "the failure to crush the Federal Army in Pennsylvania ... can be best expressed in five words—the absence of the Cavalry" (as quoted and italicized by John S. Mosby, Stuart's Cavalry in the Gettysburg Campaign [1908], 154). 2
Through the use of primary sources and deduction from the evidence, Carhart reveals the astute knowledge General Robert E. Lee had of the tactics and strategies of Napoleon and demonstrates that the Confederate commander did not simply make a poor tactical decision that fateful day on July 3, 1863, but that "Pickett's Charge ... was at least in part, a massive distraction" (p. 4) of a master plan known only to Lee and possibly a few other key individuals.

The review is by Daniel N. Rolph and appears in volume 130 of the Pennsylvania Magazine of History and Biography, published October 2006.

The problem with the review by Rolph is simple. It ignores previous work. For one thing, it ignores previously published books which advanced the same thesis. For another thing, it ignores people who wrote about the previously published books. For example, one notes the following from a review by Steven Leonard of a 2002 book by Paul D. Walker:

In The Cavalry Battle that Saved the Union: Custer vs. Stuart at Gettysburg, Paul D. Walker reveals the apparent genius behind the plan: Confederate General Robert E. Lee's grand scheme was to attack with infantry from the front while Confederate General J.E.B. Stuart's cavalry swept into the rear of the Union formations.

I had written a post on IPBiz in October 2005 (one year before Rolph's review) titled: Was Tom Carhart's book on Gettysburg pre-empted? Within the post I had referenced text from Scott Hartwig:

D. Scott Hartwig got it right when he wrote:

Our final book this month is yet another revelation of Robert E. Lee’s real plan at Gettysburg. Tom Carhart, in Lost Triumph: Lee’s Real Plan at Gettysburg—and Why it Failed (G.P. Putnam’s Sons, New York, 2005), contends that Lee planned to attack the Union rear with Jeb Stuart’s cavalry while James Longstreet’s assault struck their front on Cemetery Ridge, and that the plan failed due to the bravery and impetuousness of George Custer. Carhart is not the first to advance this notion of Lee’s plan for July 3. It has been around for many years, but lacks evidence to support it.

In addition to the IPBiz post, I had published my comments in Intellectual Property Today and I had expanded upon them in JPTOS. I am not the only one who has commented on the Carhart book.

But an improper claim of priority remains.

To return to a theme of examination of patent applications, the examiners at the USPTO are charged with finding all pertinent references. If they fail to find something on the level of obscurity of the book by Paul D. Walker, it is a big deal. The examiner who missed such a reference will be criticized. Apparently, when historians fail to find (and/or acknowledge) a book such as that of Paul D. Walker, it is no big deal. Re-inventing the wheel seems to be all right in the history business, but it simply won't do in the patent business. People who are quick to criticize patent examiners should note what a lousy job of identifying prior art is done in other fields, such as history.

**Also see


A fascinating narrative, and a bold new thesis in the study of the Civil War, that suggests Robert E. Lee had a heretofore undiscovered strategy at Gettysburg that, if successful, could have crushed the Union forces and changed the outcome of the war.


note LBE also got linked on the site

Military Justice 101:


note relevant text in 88 JPTOS 1068. Pertinent to a claim by Senator Webb of Virginia that Nathan Bedford Forrest was never beaten by a West Point educated commander, see footnote 28 of 88 JPTOS 1068:

See also footnote 16 of Robert A. Frezza, A Pocket History of the Personnel Claims Act, 1989 Army Law. 43 (1989) ["In 1863 Colonel John T. Wilder, an Indiana industrialist commanding a brigade in Rosecrans' Union Army of the Cumberland, entered into a interesting contract with his men to buy them Spencer rifles, the best breech-loading infantry weapon available ..."]; note also James H. Wilson's cavalry raid of March 1865 employing Spencer rifles in which a successful charge was made against forces of legendary Confederate commander Nathan Bedford Forrest, even though Union forces were outnumbered 6 to 1. See

James H. Wilson graduated from West Point. The fact that Wilson defeated Forrest at Selma, which contradicts Webb's assertion, is hardly a secret; from Wikipedia: In 1865, Forrest attempted, without success, to defend the state of Alabama against the destructive Wilson's Raid. His opponent, Brig. Gen. James H. Wilson, was one of the few Union generals ever to defeat Forrest in battle. The point here is not to diminish Forrest's military skills. It should be self-evident that cavalry troops armed with repeating weapons (here Spencer carbines) will have a tremendous advantage over troops with single shot weapons. Custer proved this at Gettysburg on July 3, 1863 against troops of J.E.B. Stuart, and, unfortunately for Custer, re-proved this on June 25, 1876, where he played the role of the technologically-deficient party. [see 88 JPTOS 1068, 1073]

Also, Nathan Bedford Forrest was a character in the novel The Guns of the South (Harry Turtledove) in which time-travelers alter the path of the Civil War.

One notes that, at the beginning of the Centennial period (circa 1960), a major US magazine ran a feature describing what might have happened if the South had won. In both the 1960 and 1992 stories, the South and North become separate countries.

[If you are wondering, MacKinlay Kantor's Civil War Centennial piece for LOOK, "If the South Had Won the Civil War" originally appeared in the November 22, 1960 issue of LOOK, producing a deluge of correspondence from readers, leading to a related book in 1961."]


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