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Moving back for the moment to early 1978, we also attempted to enforce the George Watson U.S. Patent 3,610,799 against Conn Organ Company. A substantial interchange of correspondence first occurred with no productive results. Consequently, on February 14, 1978, we filed suit against Conn Organ Company in which we cited patent infringement.
The Conn case began moving along slowly until 1981, at which time Kimball arrived at an agreement with Conn Organ Company's parent company, Macmillan, the publisher, to acquire Conn, thus merging the two companies. After that, Kimball and its attorneys took over the Allen vs. Conn case from Macmillan. Discovery plodded along in this combined Allen/Kimball/Conn imbroglio. For almost seven years, paperwork piled up from correspondence, from depositions, and from other evidence produced by discovery. All told, we are talking about thousands of pages of material.
In my opinion, some lawyers have a way of turning a relatively straightforward issue into a morass of obfuscation. I'm still troubled when I look back at the huge pile of material generated as a result of this case.
To continue about the actual Kimball vs. Allen litigation, the trial itself began on October 7, 1985. In the end the jury decided against Allen. The case then went to the Appeals Court, which rendered a final decision also against Allen. The case began in 1978, and the final Appeals Court decision was rendered in 1988. Incredibly, it took almost ten years to crawl through this legal quagmire.
The sad thing is that the patent had passed the "real" tests of merit—other than two of the thirty-six patent claims, the jury found it to be a truly inventive idea. Moreover, they found it to be a non-obvious idea at the time it was conceived. What was actually used to invalidate the patent was an alleged breaking of a rule having to do with how the patent application was filed. As Kimball was trying to establish this part of their case before the jury, I found it to be so implausible that I took for granted that the jury would also find it to be so. This was a gross mistake on my part.
Once again, Ralph Deutsch had resurfaced—this time in the Kimball case. During the trial he testified as Kimball's witness and admitted that his fee was $1,000 per day. Deutsch, under oath, testified that all of the elements of Watson's invention were present in the "demonstrator," the special apparatus which Rockwell assembled to demonstrate the sound of the proposed digital organ. Deutsch, the digital organ program manager, had shown the "demonstrator" to people at various organ companies in his quest to find a company willing to fund the program—he was seeking an arrangement which would ultimately lead to the development of the actual digital organ. This is the apparatus which I went to see in California in 1968.
Patent law states that one can't get a patent on an invention if it is put on sale or in public use more than one year before filing the patent application. In fact, the inventor must swear under oath that the invention was not in public use or "on sale" more than one year before filing. As part of Kimball's broad-brush attack of the patent, they alleged that the invention covered by the patent was "on sale" and in public use in the form of the "demonstrator" more than one year before the patent application was filed. If one were to read the section of the trial transcript dealing with this allegation, I believe it would be agreed that Kimball and its witnesses made every effort to give the impression that the "invention" was in public use and "on sale" when Deutsch went around to the organ companies to solicit development money. I believe that there was a great deal of confusion and uncertainty about what the witnesses were really saying. However, given the confusing testimony and the complexity of the issue, the jury ended up agreeing with Kimball's allegation much to my shocked dismay. Thus, the trial ended on November 6, 1985. Aside from appealing, the patent was lost. This was a bitter pill to swallow even though the patent's seventeen-year life was due to expire anyway on October 5, 1988.
After the initial shock of the verdict wore off, I realized that the trial had turned into a fiasco. However, I still had every confidence that it would all be straightened out by the Appeals Court. I was told that the Appeals Court consisted of judges who not only knew the law but also were trained to understand the complex technical issues often encountered in patent cases. So, off to the Appeals Court in Washington, D.C., we went. After more than two years of anticipating a ruling in our favor, the Appeals Court finally delivered their judgment on February 12, 1988. I was horrified! These sages of justice simply rubber-stamped the jury's confused findings. Now it was final. We had lost the patent.