VOLUME26 NUMBER 11
Industrial AND ENGINEERING Chemistry
NOVEMBER 1934
J
HARRISON E. HOWE,EDITOR
The Editor’s Page
S
CIENCE AND T H E LAW. In the days of the remote past when, by contrast with the present, life seemed simple, though undoubtedly to those of that day it had its complex features, the opinion of nearly anyone who might be met upon the streets was likely to be as good as that of any other. With the development of new fields of knowledge and as the sum total of information increased, we came into the days of specialists and of more highly organbed specialized information. In those earlier days before Franklin flew his kite, Faraday experimented with his magnets or Priestley with his burning glass, the law was very little, if a t all, concerned with the impact made by science on industry. As the industrial revolution came along inventions assumed greater importance, both socially and economically, but it seems likely that the advance was neither so rapid nor called for such special training as to offer the judiciary problems of any great difficulty. But the pace of science quickened, the number of inventions increased in proportion, and the whole action reached a new stage of acceleration in the early days of the twentieth century. It is no small wonder, then, that our best trained legal minds, even when they have specialized, have found it well-nigh impossible to perfect themselves in the law with all its precedents and at the same time with the progress of science with its kaleidoscopic pattern. Even more difficult has it been to maintain intimate familiarity with science in general, for it is hard enough to follow closely any one branch. We can go still further and successfully maintain that no ordinary mortal can be expert, in several branches of one field of scieqce, such as physics or chemistry, and at the same time know the law as a judge should know it. Fancy, for example, a man who may be very expert in electricity undertaking to qualify as specialist in heat or sound, or \*..here will we find the real coal-tar chemist whose testimony would be of great value in some narrow field of inorganic compounds? On other occasions it has been noted that, if full justice is to be done in the adjudication of patents, the judges should have associated with them in a con-
fidential and’ intimate capacity unbiased, thoroughly competent, scientific aides. It is becoming more and more apparent that the courts as now constituted can rarely reach just conclusions in matters where new and complicated scientific truths must be interpreted and serve as the only guideposts. In the past we believe there have occasionally been competent judges wise enough to realize this situation. They have known intimately scientists who were qualified and who could be called privately to their assistance to help interpret the mass of highly scientific data recorded by experts in the course of a trial. Such judges have been able to reach the right decisions, for they understood the law and they found a proper way to have the science interpreted to them. But, unfortunately, this situation does not always obtain. On the editorial page of the New York Times for Thursday, October 11, 1934, there is a very illuminating communication from Michael Pupin, the dean of electrical and radio engineers in this country, entitled “Science and the Courts.” In this he discusses the difficulties of reconciling testimony with scientific knowledge. And the case in point is one of rather astonishing history. It has to do with the litigation that has arisen over the invention of the regenerative circuit, a matter which has been before the courts for some time. During the litigation thirteen courts have handed down opinions. Six of these tribunals decided the question of fact in favor of Armstrong, while in the case of six others the opinion has been on the side of DeForest or they have affirmed or refused to disturb similar actions. The thirteenth is the decision of the Supreme Court, and it is the opinion of Mr. Justice Cardozo that gives rise to Professor Pupin’s communication. This is not the place to attempt to go into all of the points involved, but as discussed by Alfred McCormick in the Air Law Review, Volume 5, No. 3, July, 1934, the court has declared DeForest to be the inventor of the regenerative circuit, because he observed singing in a telephone amplifier system. This is the patent monopoly over the most important circuit arrangement in the radio field. The court says this is
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the invention. Many scientific leaders assert that this plainly and demonstrably is not the invention. The court says that this apparatus possessed certain electrical properties, and the scientists affirm that it plainly and demonstrably did not possess these properties. The court further says that the gap between this apparatus and the device used to perfect the radio invention is bridged by knowledge that electrical engineers and radio experimenters possessed in 1912, while these same engineers and the men who were the radio experimenters in 1912 assert that the art possessed no such knowledge until Armstrong, not DeForest, discovered and disclosed it. Moreover, the Institute of Radio Engineers has reawarded to Armstrong its medal for his scientific achievement in inventing the regenerative circuit and working out the scientific principles of its operation, after he had once returned it to the institute following the court decisions. So here is a case where a direct conflict of opinion exists between the Supreme Court of the United States and such leaders in science and invention as Pupin, Langmuir, Fuller, Hazeltine, Round, Hogan, and Elwell, all of whom have expressed disagreement with the final disposition of this controversy. It is believed that this difference arises because the court, learned in law, does not understand the story of the record and therefore accepts verbal testimony which goes beyond the record and changes its scientific basis. The scientific mind, on the other hand, understands the record and rejects the contradictory testimony. The present case, although legally closed by the recent refusal of the Supreme Court to grant a rehearing, is likely to have repercussions of far-reaching influence. The subject matter is somewhat outside the field of chemistry, but another litigation dealing wholly with that science and offering equal opportunity for misunderstanding may be met tomorrow. Apparently the protection of both science and the public interests requires that provision be made so that authoritative, capable, and unbiased scientific aid may be available t o the courts in all patent litigation. Such a plan is not untried, for it is practiced with success elsewhere and with modifications could be adopted with safety and advantage in the United States. * *
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‘EANINGLESS WORDS. Overoptimistic claims in advertising frequently mislead because readers accept them a t their face value without critical examination. Only a small percentage of the public can be relied upon to read with such discrimination as to protect themselves in a measure from statements tending to mislead, if not actually meant to deceive. This trick in expert writing has been developed to a fine art by many of those who prepare advertising copy. Intellectual dishonesty, as well as a failure to control one’s sincere enthusiasm, lead to ex-
Vol. 26, No. 11
aggeration, intriguing phrases, and paragraphs so worded that the very elect may subconsciously read into them meanings not actually there. Indeed, so skillful have advertising writers become in coining phrases which are nearly true that honest merchants in increasing numbers seek to safeguard themselves and their customers by insisting that descriptions of their wares be capable of rigid proof. Chemists, physicists, and engineers are called in to examine critically goods and claims made for them. It is fast becoming a fured rule of good business to have merchandise of all kinds certified prior to sale, in much the same way that food and drugs are examined under the law. In view of the purpose for which such testing and certification are required, it is shocking to learn that the results are occasionally reported by the investigators themselves, not in the exact language of science, but in the confusing lingo of the copywriter, which such reports are designed to clarify. A case in point recently appeared in the advertising of one of America’s great mercantile establishments. In that announcement a garment was described as “commercially 100 per cent pure.” This recalled t o mind an earlier experience with just such a phrase. A salesman had guaranteed a piece of suiting to be “commercially all wool” but, upon being pressed for an explanation of the term, he conceded, by 10 per cent steps, that it might contain as much as 60 per cent wool. And so we undertook to learn just what “commercially 100 per cent pure” might be. The outcome in the present case differs from the first, not only because the fabric ran 97 or 98 per cent pure, the balance being an acceptable fiber, but because the advertising copywriter had relied upon the statement of an agency recently set up to assist those who merchandise fabrics in making their guarantees less of a liability. But this laboratory covered up the fact that the garment was just short of 100 per cent pure by reporting it to be .‘‘commercially 100 per cent pure.” One might as well say “almost absolutely pure,” for all the meaning the phrase has. We sympathize with a Gnn which, in its desire to be precise in its advertising statements, was tricked into the use of a meaningless, if not deceptive, term. We have long been interested in the application of science to testing merchandise of all sorts, so that it may be described to the consuming public as far as possible in terms of serviceability and actual values. Much has been achieved in this direction, ard we find an increasing number of mercantile establishmmts with their own laboratories, manned by trained personnel. But this type of work can be injured in the eyes of the public if meaningless phrases, such as “commercially 100 per cent pure,” are allowed to creep in, or if other misleading words are used in reports. There is at stake the future usefulness of a tool, valuable alike to merchant and customer, as well as the welfare of all testing laboratories.
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