Pye Radio had been found guilty on December 21st 1957, in the Chancery Division of the Royal Courts of Justice, of infringing Marie’s patent. Pye had appealed to the Appeal Court and now, seven months later, the day had arrived for the three appeal judges to give their judgement. Marie and her daughters sat in the court, knowing that at the end of the day their happiness depended on the Appeal Court upholding the judgement of the lower court in Marie’s favour. If it went in her favour, the battle would be won and justice would have been served and all that would remain is for her damages to be assessed!
Here is an extract from Chapter 39 of A Sound Revolution.
The Final Judgement
On 21st of July 1958, Mother, Dawn and I were sitting in the Court of Appeal, awaiting the three Judges decision on whether to uphold the Judgement of Justice Lloyd Jacob in the lower court.
Lord Justice Romer opened the proceedings with the following words,
‘ROMER. L.J.
“The Judgement which Ormerod, J., is about to read is the Judgement of the Court.”
ORMEROD. J.
“This is an appeal by the Defendants, Messrs Pye, Ltd, who are manufacturers of and dealers in gramophones and gramophone equipment, from a judgement of Lloyd-Jacob, J., dated 20th December 1957, whereby he held that the plaintiff’s Patent was valid and subsisting and that the Defendants had been guilty of infringement.”
We sat, listening intently to the judge’s words, confident that the evening would find us celebrating the Courts decision. Mother refused to believe that all her hopes and dreams for justice and a new life would come to nothing. Pye had spent thousands of pounds on the appeal and she wondered what was going through the minds of the directors for, although their personal wealth was not at stake, the prestige of their business and confidence in their firm was. The Judge continued his delivery,
‘OMEROD. J.-
“In the course of the argument, it appeared that the result of the appeal depends on the answers to the following questions, namely: Does the specification fail through in-utility, in that it claims embodiments, which would be useless?
Is the absence of any mention in the claim of the necessity for bevelling the angle on the conical sides and the flat bottom of the stylus fatal to the validity of the patent?
Does the specification disclose an inventive step? And was the patent infringed by the Defendants?”
I will not relate much of the judgement, as it would be going over old ground. Part of it, however, is useful to know, since it informs one of the more pertinent points relating to the three Lords’ decision.
‘OMEROD. J –
“The evidence before the learned Judge occupied the whole or the greater part of five days, of which period by far the larger portion was occupied by the two expert witnesses, Mr Thornton for the Plaintiff and Mr Meyer for the Defendants, both of whom were subjected to the most detailed cross-examination. What is more, as the learned Judge pointed out, no evidence was called on the Defendant’s part by persons experienced in the relevant art (as they had been, for example, in the Benmax case) to show that one skilled in the art would at the date of the Plaintiff’s patent, in the natural course of events have been led to the conclusion comprised in the Plaintiff’s specification.”
“In these circumstances it seems to us that this Court should in conformity with the principles laid down for us by the House of Lords in the Benmax case, be somewhat slow to reverse the conclusion which the learned Judge – in this case a Judge peculiarly qualified in matters of this kind — drew at the end of so much expert testimony on the question, was there or was there not any inventive step in the Plaintiff’s specification? — Unless, at any rate, it could be shown that the grounds stated by the Judge for his conclusion were defective.”
The Judge went on to list seven patents previous to Mother’s invention and concluded, that anyone involved in the art of sound reproduction, at the time of her specification would not, as a matter of course, come to the same conclusion as she had done. A hasty look from Mother reassured me that, so far, matters were meeting with her approval. The tension in the courtroom mounted as it became clear that a judgement was likely to be given in Mother’s favour. Always interested in the attitude of the opposition, I looked over in the direction of Mr Johnson, Pye’s leading Counsel. He was busy studying some papers that lay before him on the bench. He should, I thought, at least have shown some interest, as I fixed my eyes on Justice Ormerod, straining to make sense of the complex matter at hand.
‘ORMEROD. J. –
“Having concluded in favour of the validity of the Plaintiff’s patent, there remains for us only the final question – whether it was infringed by the Defendants’ ‘Universal’ sapphire needle. One argument presented by the Defendants below, was to the effect that the bottom of their needle was not in truth flat at all, but was rounded throughout – although the radius was at the end of the needle extremely large, Lloyd-Jacob, J., rejected the argument, holding that the bottom of the needle was in truth, for practical purposes, flat. Mr Johnson had not pursued this argument before us; but he says that he contended also before Lloyd-Jacob. J., that even though the extreme end of the Pye needle was or should be regarded as flat, it was nevertheless clearly distinct from the Plaintiff’s needle by reason of the presence of the substantial bevel, or further rounded portion, between the conical part (properly so called) and the flat end; and he complains that Lloyd-Jacob, J., neglected entirely to deal with this argument in his judgement. It is true that the learned Judge did not in terms reject his argument, but we think that he can be treated as impliedly doing so by his conclusion that the Pye needle was substantially flat-bottomed, not regarding the bevel as constituting a distinguishing part or feature: and in this we agree with him.”
Mother squeezed our hands, reassuring us by her gesture that things were going well and victory was hers.
‘ORMEROD.J.-
“In the circumstances, we can state briefly our reasons for holding that the Defendants’ needle infringed the Plaintiff’s patent. In our judgement the question: Aye or No, have the Defendants infringed? (Once the specification has been construed in the sense in which we have construed it), is a question of fact to be answered in accordance with a common sense judgement of the comparison between the Plaintiff’s claim and the Defendants’ needle. So judged, we think the Defendants needle is in truth and in substance within the ambit of that claim. We do not accept Mr Lloyd’ submission that the Defendants’ should be regarded as ‘a flattened sphere’, and, as such, something distinct and different from the Plaintiff’s flat-bottomed stylus. In our judgement the Defendant’s needle has the essentials of a conical portion and a flat ground on the end having the respective dimension which bring it within the terms and scope of the claim of the Patent: and although the bevel on the Defendants’ needle is substantially greater than the bevel intimated in the body of the Plaintiff’s specification, it remains none the less, in our view, a bevel properly so called: that is, no more than a common and convenient mechanical means of connection between the conical part of the needle and its flattened end. We therefore hold that the Defendants’ needle constituted an infringement of the Plaintiff’s Patent. It follows that in our judgement, no good grounds have been shown for disturbing the Order made by the learned Judge below, and the appeal should be dismissed accordingly.”
Over sixty years later, Dawn and I can still remember the thrill we experienced at Mother’s victory. All that was legally left for her to do was to gather in the substantial damages due her. The long and savage storm was over: her ship had, at last, come safely into harbour. An order for costs, which amounted to many thousands of pounds, was made against the defendant. Their work done, the three Lords gathered their papers and with due dignity, they left the courtroom. The gallery above buzzed with comment on the outcome. Even the air we breathed seemed to taste of champagne as we made our way out of court. When we walked out into the Strand, the newspaper reporters and photographers were waiting. Camera bulbs flashed and popped as they snapped the victor, and the reporters pressed round Mother, eager to know her reaction to the judgement.
“Of course”, she said, “I am delighted with the Judge’s decision to uphold Justice Lloyd-Jacob’s Judgement. The children and I have been through so much, it has been a mammoth battle and now justice has been done!” She went on to stress, “But the hard work is not over until my damages are assessed and in the bank.”
“What does it feel like to have triumphed over such a large and powerful company as Pye”, one eager reported wanted to know.
“Wonderful, but It has been a tough fight. I never lost my faith in British Justice and it has not let me down. But there were times when, I have to admit, I wondered if my case would ever come to court. I prayed to God to give me the strength to carry on the fight.” The press, thrilled with her victory, invited us to join them in a celebratory drink at The Wig and Pen, the local pub where they would take one last photo of Dawn and me toasting Mother’s success.
That photo appeared the next day in the Daily Mirror in an article entitled,
“MUM’S IN THE MONEY!
Record-player invention was hers, court rules
Every British National Newspaper proclaimed her victory. Another headline,
‘A WIDOW WINS HER LONG-PLAY FIGHT -THE £5,000,000 BRAINWAVE.’
‘WOMAN INVENTOR WINS FIGHT. INVENTOR SAYS:
“I’LL GET £5 MILLION”
THE SAPPHIRE NEEDLE CASE.’
They went on to report that Mother designed her stylus so that it would not wear out records, and that her sapphire stylus had been used in millions of record players and radiograms. They reported that her victory meant that gramophone companies throughout the world have made and sold her stylus, and may owe her millions of pounds. The papers reported how, after being granted a British Patent and other patents throughout the world, she began to manufacture the stylus. How, from the beginning, she had contracts worth £58,000 and on the strength of this, she bought a big house and car and engaged a governess for Dawn and me. But by 1948, she was out of business. Big companies were making her stylus and getting contracts that should have been hers. The paper reported that Mother was forced to sell her house and car and get rid of the governess to begin her legal fight. Gradually everything she had was sold. “Only last Saturday I sold my last piece of jewellery. Now I can claim from everybody who has manufactured the stylus.” The report stated that the appeal judges had ruled at the end of a twenty-day, £20,000 lawsuit, that Pye Ltd., the radio firm, had infringed the patent protecting her stylus.
“This decision means I am the only person who has this stylus. Manufacturers all over the world have awaited the decision. Every shopkeeper who has been selling it has infringed my Patent.”
The paper reported that Mother had been in contact with the Board of Trade, who told her that more than three million sapphire styli have already been sold. She could, once she proved they came within the claims of her patent, claim royalties on them. In America 75 million dollars worth of sapphire styli have been sold, and that Mother intended to sue the companies that have infringed her patent. Lord Justice Ormerod had stated in court, when giving judgement, that, “The needle gave a high-quality reproduction for a considerable time.”
Pye had claimed in their defence that Mother’s patent was too wide to be enforced.“In our judgement there is no reason why she should not frame her claim in the broad way she has,” said the judge.
The Evening Standard reported the musical world’s reaction to the outcome of the case with the following article.
“GRAMOPHONE FIRMS MEET ON NEEDLE DECISION’
‘A fraction of sapphire on the end of a needle was worrying Britain’s gramophone and sound reproduction industry today.’
‘The court’s decision meant companies concerned in the manufacture
and distribution and sale of bevelled–edge sapphire stylus, have cause for thought.’
“At least a million needles of this general type are in use every year.
But how many infringe Mrs Killick’s patent, nobody can say,” an expert, said today.’
It was reported that many of the big musical firms called board meetings concerning the Appeal Court’s decision to uphold the judgement of Justice Lloyd-Jacob that Pye had infringed her patent. It was stated in the paper that a spokesman for one of the giants of the industry, Electrical and Musical Industries, said,
“As far as we know none of our needles is covered by Mrs Killick’ patent.” The paper went on to say that one of the companies to call an urgent meeting today, was the £5,000,000 radio firm, Pye. The world’s press took up the story and the shock waves from the Courts decision reverberated round the musical world, as other large musical companies had to consider their position concerning the ‘stylus’ that had caused such an uproar. It cannot be known what discussions went on behind the closed doors of their conference rooms, but their opposition to the judgements in Mother’s favour was soon to be revealed. Pye were not, it seems, prepared to defer to the Court’s judgement in the matter of damages, and over the next few months they were to unleash their fury on our family.
