Tuesday, September 18, 2012

OWENS v. AMERICAN STEREOGRAPHIC

     This is the third and final installment of my investigation into the litigious back story of 3-D comic books. To get a full understanding of what follows, it is best to have read both of my previous posts, "Two Views of 3-D Comics" and "Tale of the Tape". Unheard in the courtroom, but very much in the minds of the participants, chosen portions of the tape are interspersed throughout this article.-- Ken Quattro
__________________________________________________________

          FELDSTEIN: When we made all these conjectures, I lifted myself from being Lenny’s friend, and looked at it from a purely business point of view.
__________________________________________________________

THE PLAINTIFFS

     The whole situation had gotten out of hand. It started with an uncomfortable business meeting between old friends, schoolmates, suspiciously eyeing one another over a contract. Clandestine dealings and a month of contentious communications followed, capped by a surreptitiously tape-recorded interrogation/brainwashing. Smooth legalese soon tempered blunt accusations and elevated a Brooklyn street fight to a Foley Square courtroom.


Stenographer's minutes from 
OWENS v. AMERICAN STEREOGRAPHIC
[filed Oct. 7, 1953]
 
     On Sept. 1, 1953, the attorneys for the opposing parties appeared before Judge Irving R. Kaufman at 10:30 a.m. to argue the case. Emanuel Posnack, who represented American Stereographic, the corporation formed by brothers Norman and Leonard Maurer, their friend Joe Kubert and publisher Archer St. John, requested more time to prepare his case. Martin Scheiman, representing inventor Freeman H. Owens as well as Gaines, fought that request. Judge Kaufman heard both attorneys and granted a one week delay. The case was rescheduled for the following Tuesday, after the Labor Day holiday.
     The attorneys next appeared before Judge Edward A. Conger on September 9, 1953, which was a Wednesday. In a quick hearing, Scheiman requests to be heard as soon as possible. It is indicated that Posnack cannot make it the next day (Thursday). Court is adjourned and convenes once more at 10:30 a.m., Friday, September 11th.
     Scheiman immediately asks the judge for permission to serve Posnack with additional papers. When the court asks why, Scheiman launches into a long story explaining how Posnack served him with papers late in the afternoon the previous Wednesday. Since it was so late in the day, and the following Thursday was a Jewish holiday, he wasn’t able to serve Posnack in turn. The judge cuts Scheiman short and allows him to serve Posnack with additional papers. The court briefly adjourns.
     When court finally resumes at 12:15, Scheiman begins.
     "If your Honor please, this is a motion for a preliminary injunction in connection with a suit for the infringement of a patent issued to one Freeman H. Owens, on October 13, 1936. The patent will expire on October 13 of this year."  1 
     "Then it will be moot on October 13th," reasoned Judge Conger. Scheiman agrees, and after noting all the parties involved, he points out the uniqueness of Owens patent,“…to provide a set of complementary stereographic pictures from a flat drawing.” He goes on to say, “Lest your Honor be in any way misled by what I say, I want to impress upon you that no claim is made by the Owens patent or by the plaintiffs that Mr. Owens invented anything new in the sense of stereoscopy as a science, which has been long and well known for perhaps a hundred years or so; what he did do in his invention was to make it possible to make an ordinary drawing and by a unique process convert that drawing into something which could be adapted to several forms of entertainment, advertising, and other purposes.”

"Method of Drawing and Photographing 
Stereoscopic Pictures in Relief"
(patent # 2057051)      

     “If you will examine the letters patent you will note that Mr. Owens illustrated his process in part by the use of certain panels cartoon-like in character depicting what might be termed a Tarzan-like scene.”      
     "The defendants," Scheiman continued, "have produced in the recent past a number of so-called comic books. Several of them are before your Honor. The first one which was produced by the defendant St. John pursuant to the process which I have referred to as the Illustereo process professedly invented by certain of the individual defendants, was on the New York newsstands approximately on July 3rd or July 5th."
     "It has been followed in rapid succession by a number of similar comic books employing the same process."
     "It is the plaintiffs' contention, and I don't think there can be very much doubt of that in view of the affidavits that are now before this Court, that the defendants have, in fact, made use of the Owens process in the preparation and production of their comic books. 
     “The defendants have attempted to explain their position by introducing the proverbial red herring in this matter in large quantity. I submit, your Honor, that most of those red herrings are so decomposed that they putrefy the atmosphere,” Scheiman suggested. You should imagine that he took a pause to let his colorful imagery sink in.
     “The defendants have attempted by the use of distortions and other media to create the impression that the Owens patent is not a patent relating to the conversion  of an ordinary drawing into a 3-dimensional effect. That, your Honor, I submit is equally transparent and sham.”
     Scheiman then presents an affidavit from a retired chief examiner for the United States Patent Office named George Hanlin. Hanlin was the examiner who approved Owens original 1936 application and Scheiman claims that his affidavit , “…clearly and convincingly demonstrates that the Owens patent is beyond reproach, beyond criticism, as valid as any patent.”
     Scheiman notes the case being made by American Stereographic is, “…that the Owens patent constitutes in part prior art.” This claim, he says, undermines their own Illustereo patent application, which was made in May, 1953.
     Legally, prior art constitutes everything ever known publicly about an invention before a given date. In other words, if knowledge relevant to an invention is accessible by the public, it could disqualify a patent application. A trade secret, which is confidential information not readily available to the public, is usually not considered prior art.
__________________________________________________________

          GAINES: Now, at that time, I was very definitely given to understand that he had...that you had...patents pending.
__________________________________________________________

    Scheiman further contends that the defendants' application, "...to my knowledge has not been prosecuted beyond its initial stages, except that the defendants have alleged that they have made application for special treatment of that particular application."
     The special treatment he referred to was the requested accelerated consideration and approval of the Illustereo application by American Stereographic. Clearly, they wanted to get their comics on the stands and start licensing their process as soon as possible. The 3-D fad was currently hot, and there were no guarantees on how long that would last.
     After stating his opinion that this request would be denied, Scheiman says, "If the defendants knew about the Owens patent at the time they "jumped the gun" then they have committed a serious wrong, created an immoral situation, in my humble judgment."
     "If they did not know about the Owens patent existed at the time they filed their application, then they were guilty of inexcusable ignorance because they professed in their papers to have made a laborious search through experts."
__________________________________________________________

          FELDSTEIN: Who made St. John’s patent search?
          KUBERT: The one guy was this Asher Blum." 
__________________________________________________________

     Asher Blum was an old-time patent attorney and while it's curious that St. John used him instead of Posnack to do the patent search, it's even more interesting (as far as comics history is concerned) that Blum was the lawyer for Victor Fox in the landmark copyright infringement lawsuit brought against him by D.C. comics, Detective Comics, Inc. v. Bruns Publications. [covered in my article in ALTER EGO #101 and online beginning here: DC vs VICTOR FOX]
     Scheiman went on. "It would be impossible, your Honor, for a patent of this nature to be overlooked in the ordinary course of such a search. But I shall no dwell upon the facts in that connection, because it is unnecessary to the attainment of the relief sought herein to prove knowledge on the part of the defendants or lack of it."
   Once again asserting that the defendants had "usurped" Owens process, Scheiman points out, "...that the papers that have been interposed by the defense illustrate and clearly depict a steady retrenchment, a steady backward motion of the position originally asserted by the defendants as to their rights."
     "For example, in the original comic book published, the first one of this nature using the plaintiffs' process and referred to in the trade and publicly as "Mighty Mouse", there are clear indications that the defendants have published this book pursuant to a licensed process for which a patent application is pending. Gradually and steadily the defendants have obliterated, removed, and concealed any such assertions."
     At this point, he picks up a comic book. "Yesterday, the book I hold in my hand, "Little Eva", went on the New York newsstands for sale, and it significantly omits any references to there even being a patent pending application for their alleged Illustereo process."

   
Comparison of "Mighty Mouse" comic with "Patent Pending" note 
and "Little Eva" comic without.

     Scheiman then makes another accusation. As soon as American Stereographic had applied for their patent in May, "They immediately licensed the St. John Publishing Company under that so-called Illustereo process."
     "I submit, your Honor, that the evidence before this Court suggests strongly that the defendants never intended in any way or manner to license anybody else. But they were pretty sly. They knew what they might be confronted with should they confer upon St. John an absolutely exclusive right, and they profess to offer such license to competitors of St. John."
     "They did this, mind you, sometime after they had given Mr. St. John the opportunity to be the first "infringer". 
     Hyperbole aside, there was some truth to Scheiman's accusation. Years after the fact, Leonard Maurer told interviewer Ray Zone,"We gave St. John a 25 percent partnership in our licensing company, along with a 6 month's head start for his publishing company in exchange for financial guarantees for Norman and Joe as Editors, and myself, as supervising producer..."2
     Scheiman went on.
     "But in the course of the next succeeding months or weeks they preferred self-styled standard licensing agreements to the plaintiffs in this action, and presumably to other comic book publishers in the City of New York and perhaps throughout the country."

   
Copy of licensing agreement offered to E.C. 
and likely other publishing companies.
 
     "These contracts, those self-styled license agreements, are so unfair, your Honor, that if time permitted I believe I could convince you from the bench to agree wholeheartedly with me that it was never the intention of the defendants to license anybody other than St. John."
__________________________________________________________

          GAINES: How do we know that we don’t have the same process as you have? Or maybe we have a different process. Why should we pay you $2,500 a book?
__________________________________________________________

     Scheiman claimed that, “…in the course of the negotiations had by the defendants with the plaintiff corporations it became quite obvious to the plaintiffs and their counsel that the defendants had nothing to license, nothing to sell, and they were asking quite a price."
     “In the course of those negotiations because of the suspicious inclusion and/or exclusion of necessary clauses in the license agreement, the plaintiffs became suspicious.”
     “They undertook to make a search of their own. They discovered the Owens patent. They negotiated with Mr. Owens and secured a license agreement under the Owens patent and have been endeavoring since obtaining that license in July to publish 3-dimensional comic books for sale to the public.”
      Scheiman continued. “Now, your Honor should bear in mind that the comic book market today is highly competitive, that the introduction of 3-dimensional comic books was considered a great scoop. Mr. St. John has admittedly done a wonderful job filling his coffers with profits and in enhancing his prestige in the industry.”
     “The inventors admit in certain releases,” he states, “…that the market for 3-dimensional comic books is necessarily a limited one in respect of time, that in the course of a few months succeeding the introduction of the epic “Mighty Mouse”, it would be highly probable that millions of this one comic book would be flooded throughout the United States and elsewhere, perhaps, so that comic book publishers who undertook to sell their own comic books at a later date would find it virtually impossible to gain a ready and successful market.”
     “The evidence before the Court is replete by admissions by the defendants that it was their intention to glut and flood the market…”.
     The gushing  publicity that was so welcomed by St.. John and the others just weeks before was being used against them. "It was a publisher's dream come true," wrote Aron Mathieu in the August issue of WRITER'S DIGEST, "enough sales of one issue of one magazine to call it quits and retire...or bat out a dozen imitations for three months before the onrush of 50 hurried and harried competitors swamp the field."  3 
     Schieman opined that however the defendants learned of Owens' patent, "...they knew the Owens patent would expire, and whether they learned it when Mr. Owens sent letters to them, is immaterial. Those letters were sent in July. It has not stopped the defendants from releasing for publication three or four more of the same kind of books, employing the very same infringing process."
     “What cared they? They made their investment and they were going to protect it,” he dramatically stated, “But in an effort to conceal, to confuse, to obscure the rights of Mr. Owens and the plaintiffs in this dispute, they have resorted to skullduggery and roughism such that I have never confronted in my life.”
     When Judge Conger asks for an example of distortions claimed by Scheiman, he directs the jurist to Leonard Maurer’s affidavit. When Scheiman goes on at length to point out an observed discrepancy between Maurer’s affidavit and Owen’s, the judge finally cuts him off.
     “I don’t see anything so frightful about that. I don’t see that there is any great or deliberate or terrible distortion.”
     Scheiman makes one more attempt. He points to Norman Maurer's affidavit which attempts to show the differences between the Illustereo process and Owens' patent.
     "By the Owens process, several months are required to produce a 3-dimensional comic book," Maurer claimed,"whereas by the Illustereo process, the production can be completed in 14 days."
     Schieman sees this as a purposeful distortion on behalf of the defendants.
     "The matters pertaining to the placing of a book on the market are far beyond the process used. There are many things that follow the use of this process, the making of photographic plates, the printing on the plates, the assembling of the book, the putting of the covers on the books, the stapling of the books, the placing of the finished product in the hands of the distributors, and the like."
      "It is now obvious, transparent and clear that the defendants were attempting to delude the plaintiffs and they were attempting to delude this Court when they uttered those remarks."
     This draws no comments from the judge this time, so he launches right into another claim.
     “I realize full well that the Owens patent hs not been adjudicated before. The defendants are relying strongly on the fact that because the Owens patent has not been adjudicated, they can go on freely and merrily selling their books, preventing the plaintiffs from having the possibility of enjoying a fruitful market, and in that respect they estimate that whatever penalties they may have to pay in the future for their infringement will only be a fraction of the prestige they have gained by being self-professed pioneers in an industry that at the present time is one of great proportion.”
     “Your Honor knows that the 3-dimensional craze has seized this country in its grip,” Scheiman observed.  "Your Honor knows that while there is a tendency on the part of all of us to enjoy a fad or a fashion, these books will sell.”
     Then, obviously referring to Joe Kubert’s statements in the WRITER’S DIGEST article, “But Mr. Kubert, one of the inventors, said in a press release,” said Scheiman, “that by November there will be nothing left in the market. They are going to be sure that theirs are sold, and not their competitors, that their competitors will not have a free and equal chance to make a reasonable and proper profit.”

portion of WRITER'S DIGEST article (Aug. 1953) 

After acknowledging the fact that while he is not a patent attorney, Scheiman concludes that the defendants argument is, "...so much balderdash and nonsense...". Once again, he refers to Hanlin’s affidavit.
     "...a man whose integrity is clearly beyond reproach," Scheiman attests, "and I point to the contents of that affidavit as completely and significantly demonstrative of the fact that the Owens patent is entirely valid."
     He was much less impressed, though, by an affidavit supplied to the defendants by animator Paul Terry. In addition to being owner of Terrytoons Studios, Terry also licensed St. John to publish comic books based upon his cartoon characters. Including Mighty Mouse.

Paul Terry (July 13, 1951)
[Associated Press wire photo]

     This affidavit was what Posnack’s office presented to Scheiman late the preceding Wednesday. Scheiman asserts, “…that the only thing that impresses me in this affidavit is Mr. Terry’s residence, which is the Westchester Country Club, Rye, New York, and I envy him that.”
     Despite Schieman's flippant dismissal of Paul Terry's affidavit, there was no denying his animation credentials. Starting out in the studio of J.R. Bray and Earl Hurd, Terry had been witness to many of the earliest innovations in the industry. Bray had patented the method of making cartoons on translucent paper, a method cited by Terry as a predecessor of Owens' process.    
     “The affidavit is offered in a suggested attempt to demonstrate that the process described in the Owens patent was well known as far back as 1915. The affidavit,” claimed Scheiman, “was drawn in an inartistic attempt to convey the impression that one reading its contents would be impressed that such a process was indeed known to the animated cartoon industry in 1915.”  
     Scheiman disputes this by noting that, “ Mr. Owens’ patent states in its disclosure and in its specifications that its process involves the tracing of drawings on cells, which, in Mr. Owens’ language,is a well known process employed for many years in the animated cartoon industry.”

Detail from page 1 of the Owens patent

     Scheiman states that, “….the defendants either through ignorance, or, again, in an attempt to delude someone or some persons, suggested that that old process of tracing used in the animated cartoon industry is the Owens’ process. Nothing is further from the truth, and a close reading of Mr. Terry’s affidavit indicates that he said no such thing.”
     Scheiman then quotes Terry's affidavit at length.
     "As a result of my long experience, I am thoroughly familiar with the methods, processes and devices employed in the production of composite pictures having a stereoscopic, 3-dimensional effect."
     After granting that Terry is indeed familiar with such processes, Scheiman reads on, "Since 1915, I have actually used in  my various businesses and am still using a process relating to the creation of 3-dimensional effects from a drawing, whereby the final product, whether viewed through a stereoscope of some similar device, produce a final picture with a 3-dimensional or multi-planar effect."

John R. Bray's first patent, 
"Process of and Articles for Producing Moving Pictures"
(patent # 1107193)      

     Scheiman then makes a lengthy argument disputing Terry’s affidavit. He claims that Bray-Hurd patents referred to by Terry have been examined and contain no similarity to Owens’ except for, “…the simple expedient of tracing characters on transparent sheets.” He again notes Owens’ acknowledgement of that particular technique in his patent and to refute the defendants’ argument that it constituted “prior art”, a claim which, if proven, would devalue Owens’ patent. His counter argument once again, was Hanlin’s affidavit, which, Scheiman asserted, “…states that if there had been any such prior art he never would have granted the Owens (application) letter.”
     Scheiman finishes with, "There is nothing 3-dimensional about the Bray-Hurd process referred to by Mr. Terry. As I say, the affidavit is utterly insignificant, and if read in conjunction with the answering affidavits, the transparency of the argument is quite obvious.”
     This closes Scheiman’s presentation and the judge recesses the court until 2:15.
__________________________________________________________

 GAINES: He said Posnack has a civil suit all prepared to hit us with no matter what our process is.
 __________________________________________________________

THE DEFENDANTS

     William Gaines had good reason to be concerned about Emanuel Posnack.
     The man knew his stuff.
     Not only did American Stereographic have a top notch patent attorney representing them, he was an inventor himself. Putting the engineering degree he acquired to good use, Posnack had patented everything from desk accessories, to a stapling machine. He even invented an exhaust system for industrial furnaces.
    
 
 Emanuel R. Posnack (circa 1951) 

     When court resumes in the afternoon session, the defendants’ attorney, Posnack, presents his case.
     “Your Honor, this motion is based upon a simple cause of action for patent infringement,” he began. "In such a case there are only two issues: The issues of infringement and validity. In the trial of a patent infringement suit the burden of proof as to infringement is, of course, upon the plaintiff.”
     As Posnack starts into a description of what is necessary to proof a plaintiff’s case in such matters, Judge Conger cuts him short. After a discussion of several similar cases, Conger then asks Posnack a question.
     “Any injunction that I might issue here, would that go beyond October 13th?”
     “It becomes a moot case,”
replies Posnack.
     “I  can only grant an injunction for a short time,” states the judge.
     “Up to October 13th. The question of damages is something else,” Posnack points out.
     As the judge pondered the usefulness of such a short-termed remedy, Posnack begins his attack on Scheiman's arguments by noting that there has been not, “…one word describing or comparing the process of the defendants with the claims of the patent, and I know of no other way in which infringement can be proven except by that comparison.”
     "We have a defense of non-infringement, we have a defense of invalidity," he stated flatly.
     Referring to the Bray patents, Posnack continued, "Our defense of invalidity is based upon prior art which we have discovered, which the Examiner (Hanlin) has never seen."
     "And we have even better," he offered, "We have an affidavit from one of the world's most famous cartoonists who swears he uses the very  same process which is described and has used it since 1915. Now, assuming that the affidavit of Paul Terry raises a doubt with respect to validity, I think that doubt is completely dispositive of this motion for a preliminary injunction.”
     But dismissing the validity of Owens' claim was not Posnack's whole case.
     “Up until the spring of this year the printing industry had never been able to produce a 3-dimensional effect from a drawing. Stereoptican pictures are old. Your Honor may remember the old stereoscopic arrangement that was known and practiced at the turn of the century.”
     “That was 3-dimensional,” notes Conger.
     “Yes, but that was taken from a photograph,” Posnack answers. “There were two pictures and when you looked through the stereoscope you saw a single picture giving the effect of real depth.”
     “Yes, my  grandmother had one,”
interjects the judge.
     “It dates back as long as my  grandmother’s time,” agrees Posnack. “Now, never has anyone been able as a practical matter to take a drawing on a flat sheet and give a multi-planar effect, as we call it. They tried it. And while they produced some effect, it was impossible to produce it on a mass production basis so that it could be printed.”
     “The defendant St. John Publishing is one of the oldest and most reputable publishing companies in this country,”
Posnack states emphatically, but with more than slight exaggeration. Although he had once been a crusading newspaper publisher thirty years earlier, Archer St. John's comic book company had only been in existence about six years.
     The judge inquires, “Are they responsible and reliable?”
     “Most reliable,”
assures Posnack, “and I don’t think it is questioned by the plaintiffs. Two of the employees, two of the artists who had been doing work for St. John, had together with another party developed and perfected a new technique for making 3-dimensional pictures for printing purposes. The presented this to the employer of two of them, St. John, and when he saw the process he was impressed, impressed to the point of putting in in, in the last few months, close to a million dollars in the production of publications showing this 3-dimensional effect.”
     “Success was instantaneous and dramatic. I was the attorney for the inventors, as well as for the St. John Publishing Company. I was instructed to file patent applications and to file a petition to make the case a special one so to expedite the consideration. That was done. Patents are now pending. Your Honor knows it takes time for a patent to issue.”
     Posnack continued.
     “In the meantime, since St. John had decided to expedite this, a company was formed, the American Stereographic Corporation, whose main objective was to do this, to help in the perfection of the process, to surevise licensees in their use of the process, and to license others. Licenses were offered to all.“
     Then Posnack makes one of his main points.
     “Included among those who were interested was this very plaintiff Gaines and all his corporations that are producing various publications. At the time they negotiated with the St. John Publishing Company or with American Stereographic Company, they did not know and did not have the Owens patent, which is the patent in suit.”
     The judge seems surprised. “I did not hear that,” he states. Posnack goes on.
     “At the time the plaintiff Gaines was negotiating with the defendants for a license under the defendants’ Illustereo process, Gaines did not have the patent in suit; it was only after the negotiations fell through that he sought and found this patent.”
     “Was he an assignee of the patent?”, Judge Conger asks.
     "He became an assignee either of the whole patent or certain rights," Posnack replied uncertainly, "I did not get that clear."
__________________________________________________________

          FELDSTEIN: ...So we had to buy the patent. We didn’t exactly buy the patent. We bought the exclusive assignment. 
          KUBERT: So he let it go for three bills, huh?
          FELDSTEIN: That’s right. We would have paid a thousand.
__________________________________________________________ 

     “Since that date," Posnack went on,  "the St. John Publishing Company has published many more of the 3-dimensional comics, and intends to publish more, under this new special technique. The plaintiffs have not as yet published a single 3-dimensional book.”
     “What was Gaines offered in his negotiations with the defendants? He was offered, just as every other publisher in the country was offered, a license to practice a secret process under a confidential disclosure. Gaines refused to accept certain of the obligations of a licensee with respect to confidential disclosure and, as I said, the negotiations fell through.”
     "In the motion papers Gaines is now challenging the defendants to disclose the process which they refuse to do. That is the general background picture."
     Posnack was well aware of the disclosure language in the licensing agreement. He wrote it. By signing the agreement, a licensee was legally required to keep the Illustereo process a secret. At the time of this trial, Gaines still didn't know for sure what that process entailed, making the claim that it infringed upon the Owens patent difficult to prove.       
     “This patent has never been adjudicated," Posnack continued,  "For almost 17 years of its entire life it has never been commercially exploited or used. It is known in patent parlance as a paper patent, unknown, unused, unadjudicated. The plaintiffs now wave this piece of paper at the Court and over the heads of these defendants and their proposed licensees and seek to destroy the terrific investment made by the defendants.”
     "We say, in the first place, that because the patent has not been adjudicated, there is no basis whatsoever for a preliminary injunction..." .
     “It seems to me that Mr. Scheiman, plaintiff’s counsel, was a bit na├»ve when he referred to the very Examiner (Hanlin) who passed upon the patent as proof of the validity of the patent," Posnack suggested,  "I think if an examiner’s word was sacred not a single patent would ever be adjudicated by the courts.”
     Posnack goes on to make the point that Hanlin was unaware of other prior art that would have never allowed issuance of Owen’s patent. Although he doesn’t go into all of the aspects he claims are similar between Owens’ patent and the method used by Paul Terry, he does point to one similarity.
     “All of the affidavits of the plaintiff indicate that the Owens patent relies upon a shifting of the cellophane sheets. First a stack of sheets are placed one upon the other, being transparent, and a picture is taken. Then there is a shifting of these sheets relative with each other. The picture looks different. Another photograph is taken. From that a combined effect is obtained which is 3-dimensional. Mr. Terry swears that that same series of steps which he sets forth in detail has been used by him. I rely upon that.”
     Posnack then confronts the claim of infringement; a claim he dismisses out of hand.
     “There is not a single statement made by the plaintiffs in the affidavits which indicates that anyone has seen the defendants’ process, which is held secret.”
     "Never seen what?", Conger asks.
     "The defendants' process," Posnack replied. "In other words, the plaintiffs charge that the Illustereo process infringes the patent. In order to prove infringement they must know the process. Not one of the affiants has stated that he saw the process in actual use. What did they say? The first group of affiants looked at the final product, which is not the patented process, and deduced it was made by this process, which is utterly inadequate for any suit."
__________________________________________________________
GAINES:  ...It took me about an hour to figure out what I thought I could produce...a way I thought I could produce a book to look exactly like the book you had produced.
__________________________________________________________

     “Two days ago a new witness was obtained by the plaintiffs," said Posnack, in reference to an affidavit sworn to by artist Bill Elder,  "He set forth in detail conversations he had with one of the defendants. Some steps he states he saw. Others he states he heard about. I submit, your Honor, it is utterly unfair and unjust and inequitable to decide a patent infringement suit in favor of the plaintiffs based upon such hearsay testimony without a single bit of evidence to show what the process consisted of.”
     “There is no actual proof of infringement. There is, on the other hand, positive evidence of non-infringement. The patent has never been adjudicated. The patent is invalid by the evidence which we have in our affidavits. For almost 17 years of the patent’s existence it has never been commercially exploited or used. The affidavits on behalf of the defendant American Stereoscopic (sic) Corporation indicate that a patent application for its process has been filed, and in order to expedite the issuance of the patent an application therefore has been made special.”
     “The defendants have been the first to exploit, popularize, and make successful 3-dimensional comics. The plaintiffs are utter newcomers in the field of 3-dimensional publications and are seeking unfairly to profit from defendants’ successful pioneering efforts.”
     “I submit for these reasons that this suit for preliminary injunction be denied.”
     With that, the plaintiff’s attorney Scheiman requested a rebuttal.
     “There is an affidavit before the Court given by Mr. Elder, who states that at the defendants’ offices on a particular day the defendants instructed him in the very process employed by them, step by step, making use of demonstrable exhibits that were employed by the defendants in the production of their first 3-dimensional book, “Mighty Mouse”. There is absolutely no question of hearsay evidence. There is no question of incomplete knowledge. There is direct proof by the defendants to this affiant stating what the process is. There can be no question with respect to identity of the process.”
     Scheiman refuted Posnack's test of validity by first agreeing with its necessity.
     "I agree with Mr. Posnack that it is necessary to prove a valid patent. I think that the proof of that validity is encompassed in the affidavits before this Court. There is no proper attack upon the validity of the patent in any of the answering patents."
     Continuing on, Scheiman pointed out that, "...the prior art referred to in the Terry affidavit is," as he stated earlier, "related to animated cartoons in the two dimensions."
     "Mr. Terry never produced prior to 1936, when the Owens application was filed, any 3-dimensional animated cartoons. I am prepared with exhibits and demonstrable apparatus in this courtroom to show this Court exactly what Mr. Terry has done. I realize time does not permit of any such demonstration at this moment. But I would gladly and happily proffer it."
     Having avoided subjecting the courtroom to a showing of Farmer Alfalfa cartoons, Scheiman goes on.
      "The Terry affidavit is self-serving, confusing in its contents, and by reference to motion picture patents goes clearly beyond the field of art that is in purview here, at least with respect to the process here, which was never employed by Mr. Terry at any time in the production of any of his motion pictures.”
     Scheiman avers the originality of Owens’ patent as, "...a unique process whereby a drawing just like the drawings that were used in the defendants' publications could be traced onto separate cells, photographed so as to create the image as would be seen by one eye; the cells would then be shifted laterally with reference to each other and for a background view so that a photograph could then be taken with the other eye."
     "By use of Mr. Owens' process the two complimentary pictures were obtained. These complimentary stereoscopic pictures are then available for reproduction and were available for reproduction when Owens invented the process.
     To counter Posnack's contention that Owens' invention was merely a "paper patent", Scheiman offered, "There is no doubt that Mr. Owens did not publish a 3-dimensional comic book in the form of "Mighty Mouse. The papers, his own affidavit, indicate that when he in 1936 attempted to exploit his invention, the people whom he approached were no longer interested in printing 3-dimensional material because there was no market for it at the time."
     While making a point comparing Owens’ patent to the pending Illustereo process, Scheiman parenthetically mentions,“…that the defendants have never shown us that application,” in an effort to cast doubt that it had even been subjected for patent consideration.

    
Will Elder (seated) and John Severin
from FRONTLINE COMBAT #5 (March-April 1952) 

     Scheiman once again asserts that nothing Posnack presented, in any way cast doubt upon the patent’s validity. And secondly, “…the proof of the infringement lies in the affidavits on file, particularly the affidavit of William Elder, served upon the defendants a couple of days ago, in which he states under oath that on June 18, 1953, at the office of American Stereographic Corporation, with an address given in that affidavit, that the defendants, two of the inventors of the so-called process, there having been three in the first instance, instructed this Mr. Elder in the exact technique employed by them to create the “Mighty Mouse” publication.”
     “The affidavit states that they showed him the artwork that was involved in the creation of that “Mighty Mouse”, showed him the several cells, explained to him how they were assembled after they were created, explained to him the unique shifting technique that is the heart of the Owens patent, showed him that the “Mighty Mouse” itself was merely the product of the use of that process and the wonderful invention of printing that has existed for hundreds of years.”
     After once again pointing out that the defendants, “…do not have any patent application that can be granted at any time with respect to the process used by them to create “Mighty Mouse”, Scheiman asserts that, "it will be established beyond any doubt that the defendants have unlawfully, or at least, improperly usurped to themselves profits and rewards of the Owens invention that have no business being in their pockets. While, as I stated before, your Honor, they will be held responsible for pecuniary damage at the proper time, it is extremely unfortunate that while the defendants are reaping their rewards, the plaintiff is put in the position of having to meet this competition of the defendants."
     "The plaintiff hopes to have its publication reach the newsstands during this month, probably about September 20th, and that is being issued in the wake of a flood of Illustereo products, comic books, five or six in number, the last of which hit the New York newsstands yesterday."
     In actuality, E.C. didn't come close to that September date. Their first 3-D comic, THREE DIMENSION E.C. CLASSICS #1, was released with a Spring 1954, cover date late in 1953.
     "So great is the marketing of the defendants' products that the plaintiff corporations will have a very, very difficult time obtaining any financial return from their substantial investment."
     "I think that on an application for a preliminary injunction the equity should be regarded from both points of view, not from the defendants' point of view alone. If they made a mistake or if they were corrupt, whichever it may be, and made improper use of an invention, they should not be permitted to go along for the ride, they should not be permitted to continue on indefinitely, capitalizing on an improper and immoral act."
     "Bear in mind, your Honor, that these are competing companies. The plaintiff companies were in existence long before the defendant St. John; the plaintiff companies were the pioneer of comic books. These companies were founded by the plaintiff Gaines’ father, and the prestige which the St. John Company is now attempting to achieve through this immoral, improper and illegal act is being denied the plaintiffs. What good will come to the plaintiffs at a trial later on? The damage will have been done by illegal, improper and unlawful distribution of 3-dimensional comic books to a point where it will be virtually impossible, according to the defendants' own statements attached to the motion papers, to sell these books."
     Once again Scheiman cites Kubert's comments in the WRITER'S DIGEST article.
     “The defendants said that by October or November it will be practically impossible to do any business in that field. This is a passing fad, a passing fancy. The plaintiffs are being denied it merely because they proceeded in an honorable, in a proper, in a lawful manner to operate under the patent of an inventor who licensed them for that purpose.”
     “These defendants have on color of right; they have no title; they have no authority; they are usurpers; they are newcomers; they are the ones who have achieved and are achieving the fruits and labors and rewards that belong to Owens and his licensees.”
     “Mr. Posnack suggests that every one of the comic book publishers in the City of New York or elsewhere was given the opportunity to have a license. The fact remains, Judge, that St. John is the only one who has a license under this so-called Illustereo process.”
“Nobody else took a license because of the terms. I suggest to your Honor, as the moving papers show, that the defendants never intended any such license agreement to be accepted by anybody.”
     With that, the court adjourns to await Judge Conger's decision.
__________________________________________________________

THE DECISION

     On September 30, 1953, Judge Conger handed down his decision. What follows is an abridged version.

This is a motion for a preliminary injunction restraining the defendants from making and distributing three-dimensional comic books or magazines produced by a certain "3-D Illustereo" process upon the ground that said process infringes United States Letters Patent No. 2,057,051 issued to plaintiff Owens on October 13, 1936.

The plaintiffs have filed various exhibits as well as a number of affidavits in support of their motion.


According to the affidavit of the plaintiff Gaines, the corporate plaintiffs are well known publishers of comic books and he is well acquainted with the efforts involved in the production and knowledge of stereoscopy and the aspects of its production through the medium of photography; he is the assignee of the Owens patent and has made a study of it. He sets forth his analysis of the patent which is entitled "Methods of Drawing and Photographing Stereoscopic Pictures in Relief"...
 

The Owens patent technique embraces according to Gaines the following production steps:
 

"(a) analyzing the drawing and breaking it down into the desired number of planes;
 

"(b) copying each plane, either by hand or photographically, on to a separate sheet or transparent cell (acetate, celluloid or the like) or a combination thereof, and, in the case of transparent cells, opaquing the areas covered with white where and if desired;
 

"(c) superimposing the sheets and/or cells in register to simulate the original drawing and then copying photographically;
 

"(d) shifting the sheets and/or cells laterally with reference to the background so that each sheet or cell is shifted slightly more in reference to the preceding one, which shift distances may be varied in amounts and in proportion to each other, and then copying the composite result photographically;
 

"(e) the photographic copies produced or obtained through steps (c) and (d) above described are then reproduced for visual observation.
 

"Reproduction for visual observation is achieved in the following manner: plates are made from each of the two photographic copies referred to in the process outlined above; one being usually inked in red and the other in green, and a printing is then made with the impression of each plate superimposed. When viewed through color filters of the same two colors that the said plates were respectively inked in, a three dimensional effect is obtained through the application of well-known and, concededly (sic), not now patentable principles of `stereo-anaglyph' viewing."
 

He reminds the Court of the "3-D" craze and the profits to be reaped, and he describes the efforts of the defendants in marketing the "World's First Three Dimension Comics" under a so-called secret "illustereo" process for which patent application is pending; he further describes his negotiations with defendant for a license to employ the process in his own publications and his refusal to accept the same because of the conditions imposed therein; he charges that the defendants actually never had intention of licensing anyone other than St. John Publishing Company and that defendants are out to corner the market in 3-D comic books; he cites an announcement in a trade magazine by one of the defendants and inventors, Kubert, to the effect that there will be an immediate but short-lived market for 3-D comics and "then it will be all over"; the announcement also refers to the problem of acquiring glasses for the comic books because of the limited supply of acetate in New York; this points up the difficulty because it takes Gaines' companies several months to produce a 3-D comic book.
 

Mr. Gaines' affidavit further goes on to relate his discovery, during the course of the license negotiations, of Owens' patent; that he became absolutely convinced the defendants were employing the Owens process; and he is equally convinced the defendants infringe the Owens patent since the "naked eye tells the story"; he studied defendants' work and can't think of any method other than Owens' that might have accomplished the result.
 

Mr. Gaines' affidavit winds up by "challenging" defendants to admit or deny the use of certain practices in their production and pleads the necessity of the relief sought, because of the defendants continuing publication despite full notice of plaintiffs' rights, the limited (in time) market, the limited source of supplies created by defendants' activities and the fact that the Owens patent expires October 13, 1953.
 

The affidavit of plaintiff Owens recites, among other things, his invention, his belief that defendants infringe, his failure ever successfully to promote the patent, or to receive one penny from it, his experience as an inventor, his introduction to the defendants' claimed infringing production, the receipt of a visit from plaintiff Gaines and subsequent conversations with the latter after which he assigned his patent to Gaines, his notification to defendants of infringement and various replies. He has no doubt that defendants use his technique in their productions, for the same reasons Gaines gives.
 

One Feldstein, a commercial artist and employee of the plaintiff corporations, also expresses the opinion that "only one of the methods invented, taught and detailed in the Owens patent could have been used in the production of that (`Mighty Mouse') comic book ****
 

Further, one George Hanlin files an affidavit in support of the application. Hanlin is no less than the Government patent examiner, now retired, who examined and allowed the Owens patent in 1936. It is his opinion that the Owens patent was and is valid in every way. This opinion results from a refreshed recollection and further study by Mr. Hanlin. He is further of the opinion that if defendants use certain processes in producing their comic books, they infringe the Owens patent.
 

One Elder, a commercial artist, formerly a free-lancer, but now employed by the plaintiff corporation, relates that he visited the offices of American Stereographic Corporation in June of this year and that defendants Kubert and Norman Maurer explained to him the process by which defendants' comic book "Mighty Mouse" had been produced. He is of the opinion that it "is undoubtedly the process invented and taught by Mr. Owens."
 

One exhibit is a transcript of a tape recorded interview between defendant Kubert and plaintiff Gaines and plaintiff corporations' employee Feldstein at Gaines' office in August of this year. It appears that Kubert was invited to Gaines' office by Gaines and/or Feldstein for a little chat and, unknown to Kubert, the conversation was tape recorded — 70 pages in all.
 

I read the entire transcript. Without giving consideration to its propriety or admissibility — plaintiffs have filed a memorandum in support of the submission — I can only conclude that it completely establishes that Kubert was innocent of any wrongdoing in connection with Owens' patent and the publication of defendants' 3-D comic books. Further, I regard it as worthless in establishing any impropriety on the other defendants' part. The conversation consisted mainly of Gaines' and Feldstein's relation to Kubert of what they had learned, suspected, speculated and otherwise. Kubert was astonished by some of the revelations but he was unaware of wrongdoing on his own part or anybody else's, except possibly, if what he was told was true, a certain lawyer's part.
 

The defendants have filed affidavits in opposition to the application.
 

Leon (Leonard) H. Maurer, general manager of the defendant American Stereographic Corporation, states that he, in conjunction with Norman A. Maurer and Joseph Kubert, invented the process whereby defendants produce 3-D comic books; that a patent has been applied for along with a petition for "special" attention in order to expedite the application; that defendants sought to license Gaines and his companies but the latter would not agree to the conditions in connection with secrecy of the process; he states that Owens' patent has no relation to defendants' process; he is of the opinion, after study, that the Owens patent is and always was invalid in view of the prior art which he purports to cite; that the St. John Publishing Company has invested three-quarters of a million dollars in the project and the plaintiffs have yet to produce a comic book.
 

Archer St. John relates his part in the production, his substantial investment, the great success of the venture, his belief after investigation that his process infringed no patent, among other things.
 

Norman H. Maurer states that he is a coinventor of the Illustereo process; that it is different than the disclosures of the Owens patent; and that such Owens process is not capable of producing a product of the quality of defendants' comic book.
 

Paul Terry, a producer of well-known animated motion picture cartoons, states that he has used, since 1915, a process relating to the creation of 3-D effects from a drawing which process is described in many old patents, which he cites.
 

I believe I have given the highlights of the various affidavits and I have considered the exhibits.
 

I am convinced that the plaintiffs have not made a case for the relief sought.
 

I shall assume for the purposes of this application that the Owens patent is valid.
 

It is plain from all the circumstances, however, that defendants' infringement of the Owens patent is not reasonably clear, if at all.
 

Only Elder among the affiants in support of the application has any knowledge of defendants' process. Gaines and others cannot think of any method other than disclosed in the Owens patent to do the job. Hanlin says in effect that if the defendants use the Owens method they infringe the Owens patent.
 

Elder's affidavit remains practically unanswered. Of course, in general the defendants deny using the Owens patent, aver that the Owens method has no relation to their own and have their own invention for which they seek a patent. But they do not deny that their method was explained to Elder nor do they counteract Elder's opinion that it is the Owens method. This circumstance along with others raises a suspicion that the defendants may have appropriated Owens' work. I do not, however, regard it as clear proof of infringement in view of defendants' denials and averments, and particularly since defendants have seen fit to file their own "invention" in the patent office.
 

This doubt coupled with the fact that the plaintiffs will not be irreparably damaged by defendants' continued production compels me to deny this application. There appears to be no question that the defendants are financially secure and well able to compensate plaintiffs if and when they are successful in this suit. It may well be three years before it reaches trial, yet the patent will be in the public domain within a month. Even assuming that the defendants saturate the market within a short time, it may not be said that they are sole contributors to this circumstance since it appears that at least one other company is in the field.
 

The application is denied.
 _________________________________________________________

THE AFTERMATH

     With the Sturm und Drang past, when the dust settled, in the end, nobody really won. 
     Despite their loss, Gaines and Feldstein eventually published their two 3-D comics. Despite their win, American Stereographic eventually folded; from lack of customers for their process and the predictable fading of the 3-D fad.
     Although Archer St. John probably lost as much as he had made on this debacle, he didn't go out of business. While his comic book company withered, along with the rest of the industry at that time, his other publishing ventures did well. Right up to his death by drug overdose on August 13, 1955.
     In addition to his continued success as a patent lawyer, Emanuel Posnack wrote several books on economics. His 1956 book, WORLD WITHOUT BARRIERS, proposed a theory of a global economy that presaged events decades later. 
     William Gaines would go on to other battles, including an ill-advised one with the Senate subcommittee investigating juvenile delinquency. A lesser skirmish with a lesser foe was fought by his attorney in December of 1953.
     Massachusetts Attorney General George Fingold, citing the depiction of Christmas in a "pagan" manner and Santa Claus as being divorced, had copies of E.C.'s PANIC #1 pulled off the stands. Gaines' lawyer, Martin Scheiman, decried the "wanton damage" suffered by his client, inflicted by people who had "come to the rescue of a wholly imaginary, mythological creature rarely believed to exist by children more than a few years old."  4 
     He would go on to represent Gaines in far more serious cases including a copyright infringement suit over the image of Alfred E. Neuman and Irving Berlin's attempt to prevent MAD from using his songs in their parodies.
     Scheiman, who counted Gaines cohort Lyle Stuart and radical publisher Paul Krasner among his clients, would be found dead in the Time-Life Building in 1966, an apparent suicide.
     And Freeman H. Owens, the inventor who Gaines had told Kubert in 1953, "...is so near to death. He’s had seven strokes. He’s an old man…a little old man," continued inventing until he died at age 89 in 1979.
__________________________________________________________

BONUS MATERIAL DEPT.

     Proving that a little thing like an expensive lawsuit couldn't stop their respective creative juices from flowing, both St. John and E.C. published humorous takes on the 3-D comics saga. Presented here, for not-for-profit historical purposes only, are "The 3-D-T's" from WHACK #2 and the first page of  "3-Dimensions!" from MAD #12. All copyrights are retained by the estate of William M. Gaines and all other respective copyright holders. 

   
  "The 3-D-T's"  
WHACK #2 (Dec. 1953) pg. 1

   
  pg. 2

   
  pg. 3

   
  pg. 4

   
  pg. 5

   
  pg. 6

[the following image courtesy of Ger Apeldoorn]

   
"3-Dimensions!"
MAD #12 (June 1954) pg. 1
 
__________________________________________________________

1  All quotes of Martin Scheiman and Emanuel Posnack come from the court stenographer's notes for OWENS v. AMERICAN STEREOGRAPHIC CORP., et. al.,United States District Court S. D. New York, Sept. 1-11, 1953.

2  Zone, Ray, "Leonard Maurer: 3-D Comics Pioneer"http://www.ray3dzone.com/LM.html
3 Mathieu, Aron M., "3-D Comics Knock 'Em Dead", WRITER'S DIGEST, Aug. 1953.

"Santa Claus Cartoon Damages Are Charged", PALM BEACH POST, Dec. 28, 1953.

Additional general information obtained from the NEW YORK TIMES archives, HOLLYWOOD ON THE HUDSON by Richard Koszarski, ARKANSAS BIOGRAPHY: A COLLECTION OF NOTABLE LIVES by Nancy A. Williams and Jeannie M. Whayne and the online Google patent search engine.

Thursday, September 6, 2012

Tale of the Tape

     How would it really feel to be that fly on the wall; to hear history in the making?
     As recounted in my previous post, there was a basic disagreement over who was the creator of the process that made 3-D comic books possible. Leonard Maurer claimed it came to him "fully formed", while inventor, Freeman H. Owens swore it was based upon his 1936 patent. As any time when money is at stake, a lawsuit was inevitable. But it wasn't just Owens and Maurer who were involved. There were others; others with a financial interest, with a lot to lose and a lot to gain. 
     What follows is a transcript of a taped conversation I obtained from the National Archives. The men speaking are legends in the comic book industry, icons of popular culture, and key players in the drama surrounding the creation of 3-D comics. 
     This is a very long transcript, but to maintain the flow of the conversation, I've chosen to present it in one post. The only edits I have made are to correct obvious misspellings and typos. Since this blog is accessible to all ages, I also partially censored some of the stronger vulgarities . 
     Due to this post's length, I have refrained from making any comments. Those will appear in my next post, which will also explain references made by the speakers and details on the names they mentioned. -- Ken Quattro
__________________________________________________________

Transcript of a tape-recorded interview between Mr. Joe Kubert of American Stereographic Corporation and William M. Gaines and Albert B. Feldstein of Entertaining Comics Group, held in room 803, at 225 Lafayette Street, New York City, on August 3, 1953, at approximately 12:05 p.m., through 1:15 p.m. __________________________________________________________

FELDSTEIN:  Hello, Joe!

KUBERT:  Hi ya, hi, ya!

FELDSTEIN:  Joe Kubert, as I...

KUBERT:  Is this your sanctum sanctorum?

FELDSTEIN:  Yah. Sit down Joe. Is it “Cuebert” or Koobert”?

KUBERT:  Any way you want to say it, as long as it isn't dirty; it's alright...Very, very nice.

GAINES:  Al was having a lot of trouble...

FELDSTEIN:  In fact, Lenny was up here, you know. Lenny came up to see us.

KUBERT:  When was this?

FELDSTEIN:  When we were...You tell him Bill.

GAINES:  About three weeks ago, was it?

FELDSTEIN:  He was kind of cool. Quite frankly, his attitude was very belligerent.

GAINES:  Tell you why we wanted to talk to you alone, Joe. There are a lot of interesting...developments and in trying to figure out what was going on...for some queer reason, I assumed all along, that you're an honest man...

KUBERT:  I'm flattered.

GAINES:  So figuring that you/re an honest man, we came to the conclusion that maybe you didn't know some of the things we found out. So frankly I was curious to know whether you knew them, and if you don’t know them, I want to tell you.

KUIBERT:  I’m all ears.

FELDSTEIN:  Do you want to first tell him what Lenny said to us?

KUBERT:  I would like to know because I've heard...because Leonard has pretty well kept us up on things happening. He repeated the things...

FELDSTEIN:  Well, Lenny said to us if we go ahead with 3-D, with our process, American Stereograph (sic) will sue us for unfair competition...fair trade or something like that.

GAINES:  Well, he didn't say so in so many words.

FELDSTEIN:  Well, he said a civil suit, that’s what he said.

GAINES:  He said Posnack has a civil suit all prepared to hit us with no matter what our process is.

FELDSTEIN:  See...and...and...I was trying...

KUBERT:  Them's pretty hard words.

GAINES:  Huh?

KUBERT:  Them’s pretty hard words.

GAINES:  Yeah...Well, I think you're .going to be pretty surprised at what we have to tell you. If you're not, ah, maybe...maybe you know.

FELDSTEIN: Well, look, this is the way we felt about it, Joe. When you sent out your circulars and everything, we immediately figured out the process...and when we went up to see you...

KUBERT:  Yah.

FELDSTEIN:  We told it to you, right? And Lenny said...

GAINES:  That's the...

FELDSTEIN:  When we explained the process that we had...we said we had a process...

KUBERT:  Yah.

FELDSTEIN:  He said it was actually your process, right?

KUBERT:  Well, no, actually what happened up there was we were not in a position where we could say that your process was like ours because had we admitted something like that...

FELDSTEIN:  Well, you'd be telling us that it is your process...but Lenny did say it infringed...

KUBERT:  Yah.

GAINES:  The point I am trying...

FELDSTEIN:  But it is your process.

GAINES:  The point I’m trying to establish...

KUBERT:  As to myself, I happened to be only one of the four fellows up there in the Stereographic office. I’m not as of now...as of probably about a month and a half ago in the Stereographic office at all. Neither Norman or myself. That’s why I asked if it would be O.K. if Norman came up here. Because neither Norm or myself have been doing any business with Stereographic.

FELDSTEIN:  Who are the other two?

KUBERT:  What two?

FELDSTEIN:  You said there are four fellows in Stereographic.

KUBERT:  There are four. St. John, there is Leonard, myself, and Norman.

FELDSTEIN:  What about Posnack?

KUBERT:  Posnack is not any part of it -- as yet. He had offered Lenny. He had offered...he wanted to come in. As a matter of fact, it’s in the stage of being negotiated right now.

GAINES:  Are you sure he isn’t in already?

KUBERT:  I’m positive he isn’t in already.

FELDSTEIN:  At this stage of the game...

GAINES:  No, look, wait -- you phrase it in such a way that Joe doesn’t want to answer. What I’m trying...what I’m trying to say was...we came up there knowing a process.

KUBERT:  Yes.

GAINES:  Knowing a process...It took me about an hour to figure out what I thought I could produce...a way I thought I could produce a book to look exactly like the book you had produced.

KUBERT:  The same.

GAINES :  We came up that first day, the first Friday; we got the brochure on a Thursday. I don’t know what date it was offhand, and we came the next day, because Al and Harvey were all excited. We came in and we told you at that time that we knew a process. And we said, “How do we know that we don’t have the same process as you have? Or maybe we have a different process. Why should we pay you $2,500 a book?” Lenny said, “You tell me the process, and I’ll tell you if it infringes.” So I told him the process; I said, “You make a drawing on cells, plane by plane; you take a picture, you shift the cells varying amounts, you take another picture.” And he said, “That infringes.”

KUBERT:  Right.

GAINES:  Now, at that time, I was very definitely given to understand that he had...that you had...patents pending.

KUBERT:  Right.

GAINES:  On the process.

KUBERT:  Right.

FELDSTEIN:  Excuse me. And we felt, you know the attitude we had. Remember Lenny...Lenny said to me, “I...you know.” I mean, I said to Lenny, “You guys got it.”

KUBERT:  I remember it distinctly.

FELDSTEIN:  You went ahead and put your patent in.

KUBERT:  Right. So...

FELDSTEIN:  Although we know the process, we’re up the creek. Unless we want to try and beat you out before you get your patent. See, that’s why we went through this routine to tell you why we knew the process.

KUBERT:  I was very happy about the fact that you guys did play it...

FELDSTEIN:  When we went in, we really were serious about going into production. So that’s why we sent Bill Elder up. Because we...you remember the whole routine with the contract. Everything would be worked out amiably.

KUBERT:   Right.

FELDSTEIN:  And we wanted to be all signed up, sealed and ready to go. We wanted to catch an August crowd if we could or at least get out soon so that’s why we sent Bill up. But Bill, when Bill went up, I had already produced a page on some cells and showed it to him.

KUBERT:  What’s this again?

FELDSTEIN: I had already produced a page with cells.

KUBERT:   What was this? When did you do this?

FELDSTEIN:  Before Bill went up went up to get a disclosure from you.

KUBERT:  Yah.

FELDSTEIN:  When he was up there, didn’t he tell you that I showed it to him?

KUBERT:  Not that I remember. Perhaps he told it to the other boys.I don’t remember...

FELDSTEIN:  Well, he did. It was funny, he was surprised to find out that we never did get a disclosure.

GAINES:  It was a week and a half later, before Bill realized that we didn’t get a disclosure from you...because...

KUBERT:  Well, that can’t be because I remember telling Bill myself specifically that no one up in the office knows what the process is as yet and since he has signed these papers, he’s not to talk about it to anybody up in the office.

GAINES:  He went along. He went along. Well, I’ll tell you, as far as that disclosure is concerned, that’s one thing I want to discuss, not the biggest thing. I sent Bill up to sign a disclosure that he had seen the process. I didn’t know that in the disclosure was also going to be (1) “I admit I never heard of this or had any prior knowledge of it.” (2) “I agree not to so forth and so on for five years.”

KUBERT:  Yes.

GAINES:  I didn’t know that was in there...because we had already been negotiating with Posnack to have that thing out of our contract. You see? But that’s neither here nor there...the thing is, that we had a method, ...I still don’t to this day know if it’s exactly the same as yours.

FELDSTEIN:  Bill has never told us your process.

GAINES:  We’ve been for legal reasons very goddamn careful…

KUBERT:  Very frankly, I’ll tell you, both Norman and myself have talked about that particular point, and we realize it’s like hanging, like holding on to a guy by the nuts by having him sign a paper like that. And it could conceivably bring it to a point where a guy might have to sacrifice a certain amount of his money-making potential for having signed that paper.

GAINES:  But, Joe, do you know why?

KUBERT:  We couldn’t do anything else.

GAINES:  Do you honestly and truly know what all those clauses were in the contract that I objected to? And do you know...

KUBERT:  Do I know why? Frankly, I did not.

FELDSTEIN:  Joe...

GAINES:  I know why those clauses were in the contract, and I know why that disclosure...

FELDSTEIN:  Well, here comes the thing...

GAINES:  Here’s...you’re going to get yourself shocked...I hope...

FELDSTEIN:  We feel that you’re going to get shocked. We don’t know. You may be aware of this. Do you know you’re not going to get a patent?

GAINES:  Did you ever hear of a man by the name of Freeman Owens?

KUBERT:  Freeman Owens?

GAINES:  Yeah...

KUBERT:  No.

GAINES:   Did you ever see Owens’ patent?

KUBERT:  No.

FELDSTEIN:  Show him Owens’ patent...

GAINES:  Did you know that American Stereographic a week and a half ago or so got a letter from Owens? Did you know that?

KUBERT:  Son-of-a-bitch.

GAINES:  Now, raise your right hand, did you know it, Joe? Huh?

KUBERT:  Well, I’ll tell you. Leonard did tell me that we had received some information that put our patent in a very shaky position, but he did not tell me what it was. He said that the less people that spoke about it, the better off, we’d all be.

GAINES:  Joe, how much does Lenny know? I mean Normy know? Is he very friendly with Lenny?

KUBERT:  Pretty much. But he’s pretty busy lately.

FELDSTEIN:  Let me ask you this: Did you examine the patent search?

KUBERT:  St. John did. St. John got the patent search. As a matter of fact, as we told you up in the office...

FELDSTEIN:  Who made St. John’s patent search?

KUBERT:  The one guy was this Asher Blum.

FELDSTEIN:  Did he go to Washington?

KUBERT:  No.

FELDSTEIN:  He did a patent search here?

KUBERT:  He has people, or he had people, I understand...well, one other guy that did a patent search was what’s his name? Posnack.

FELDSTEIN:  We know about Posnack. Posnack is Supreme Knitting Mill’s patent attorney, right?

KUBERT:  That’s...ah...yeah...that’s how we got involved with him.

FELDSTEIN:  That’s how Lenny got involved?

KUBERT:  That’s right...that’s right.

FELDSTEIN:  Did Lenny ever do any patent work for Supreme Knitting Mills? Did he ever go down to the library and examine books?

KUBERT:  Yes.

FELDSTEIN:  Do you know that there is a knitting mill patent...there is a knitting patent...two away from Mr. Owens’ patent?

GAINES:  Here, Joe, brace yourself. Seventeen years ago. Read it.

FELDSTEIN:  Look at the pictures. We did a search on what we felt was your process, which you told us infringes.

KUBERT:  Yah.

FELDSTEIN:   We did a search on that process, and we came across this patent. Didn’t your boys come across this patent?

KUBERT:  Where did you do this search? Did you go up to Washington to do it?

FELDSTEIN:  Why did you ask that question?

KUBERT:  Because I know there was a cursory search made. And I know that several different patents dating back to the late 1800’s were submitted to Mr. St. John. And he looked over those patents and none of them came anywhere near...

FELDSTEIN:  Was that patent ever given to St. John?

KUBERT:  No. No, sir.

FELDSTEIN:  Post engraving made a search and didn’t turn up that patent in Washington.

KUBERT:  Didn’t?

FELDSTEIN:  They couldn’t find it. In other words, when he asked out Class 88, you see the front of that patent--it says Class 88--when he asked out Class 88, he got a sheaf of patents to read, and it comes out of a hopper or shelf or somewhere in the patent office in Washington, and that’s how every patent attorney makes a search. He reads all the patents.

KUBERT:  Yah.

FELDSTEIN:  And that patent was not in that file.

KUBERT:  You’re kiddin’.

GAINES:  I ask...

FELDSTEIN: We ask whether it was possible for someone to have pulled that patent.

KUBERT: Where did...

FELDSTEIN:  That comes later, Joe. He did pull out a patent given to Disney...not to Disney, to two animators in 1950 involving some kind of a shift of cells on the Garrity Camera. But in the back of that patent was a citation. Do you know what a citation is on the back of a patent? There isn’t any on that one.

KUBERT:   I know very little about patents.

FELDSTEIN:  All right. Show him the patent, Bill.

GAINES:  Here’s the first patent we got ahold of...somebody got it for us.

FELDSTEIN:  That patent showed up. The Owens’ patent did not.

KUBERT:  Yah.

GAINES:  Look it up, Al.

FELDSTEIN:  See, it says, “References cited: Owens.” Now, we looked up...this is the Garrity reference...

KUBERT:  Yah.

FELDSTEIN:  The Garrity is a camera...

KUBERT:  Yah.

FELDSTEIN:  Burkhardt was...what...do you remember...you looked at them all?

GAINES:  What’s the difference?

FELDSTEIN:  None of these were applicable. Owens was this patent. So we went to see Owens’ patent in the New York Public Library.

(At this point there were three people speaking at the same time and the voices were indistinguishable.)

FELDSTEIN:  We immediately started to wonder what is going on. Is it a swindle or something? Four patent searches don’t turn up your process?

KUBERT:  Christ!

FELDSTEIN:  What about Asher Blum?

GAINES:  Now, the following is pure speculation, pure speculation.

KUBERT: (Whistles)

FELDSTEIN:  Bill and I are twisted mentally...

KUBERT:  This is quite a shock.

GAINES:  I thought it would be, Joe. I am glad it is too, because I didn’t want to think you were in it. Maybe Norman isn’t either, but I didn’t want to take a chance.

FELDSTEIN:  We may be all wrong, Joe.

GAINES:  Here’s my thought, Al’s and my thought. This is not an accusation, it’s a thought. Lenny is thumbing through idly through old patent books looking for something on mill equipment. Two or three patents away from something on mill equipment. Two or three patents away from something on textile equipment... incidentally, there was one five behind it and one to three in front of it. He might have been going from one to the next. And if you will notice that Owens’ patent... if you’re thumbing through a volume with 200 of these, and you went through and you see a thing like that, it hits you in the eye. If you have a brother in the comic business...

FELDSTEIN:  Tarzan...

GAINES:  Now this, Joe, now, later, I’ll give you time to read it, but you can see the shift. If you read this word for word, Joe, down to coloring in different pencils...

FELDSTEIN:   Whose idea was that, Joe? Coloring in different pencils?

KUBERT:  That was just in kicks. Norm and I were doing it in pencils...

FELDSTEIN:   Lenny didn’t suggest it, did he?

KUBERT:  No, sir. As a matter of fact, I know it couldn’t have worked this way because if anything, it’s strictly coincidental.

FELDSTEIN:  No, no, no. The layout...

KUBERT:  Strictly coincidental.

FELDSTEIN:  O.K., O.K., all right.

KUBERT:   I’ll explain to you why. The idea came from myself. It originated from me.

FELDSTEIN:  You mean the penciling?

KUBERT:  No, sir. The idea of 3-D in comic books came from me. Leonard did not suggest it. It did not come from Leonard. We were seated, I might have told you...I’m not sure...

FELDSTEIN:  But Lenny has seen 3-D in comics four years ago.

KUBERT:  He said that he had seen something that you had shown him.

FELDSTEIN:  Four years ago?

KUBERT:  Yah.

GAINES:  But why does Lenny go around now palming this off as his idea, his process?

KUBERT:  Actually, all three of us, you know, have filed our names on the patent application. All three of us are down there as inventors.

FELDSTEIN:  Yes.

GAINES:  Who actually had the thought of shifting planes with cells?

KUBERT:  Leonard was the guy.

GAINES:  Leonard.

FELDSTEIN:  Do you think Leonard got that...

GAINES:  Joe, is it possible that when you suggested 3-D in comics...what was your original thought on how to do it?

KUBERT:  I had an idea. I had suggested this to several people. I had talked it around a bit. The thing that gave me the idea originally was that I had seen several books, several magazines in Europe while I was overseas in three-dimensions, but they were photographs and I immediately thought this applied to comic books, if it could be done in art work. I knew nothing of what the problems it involved or anything else.

FELDSTEIN:  Did you ever see our old stuff, by the way? The thing I showed Lenny four years ago?

KUBERT:  No.

FELDSTEIN:  You want to show it to Joe?

GAINES:  Well, it has no bearing on this.

FELDSTEIN:  Well, it was a one-panel drawing.

KUBERT:  Yah.

FELDSTEIN:  In three dimensions. You looked at it through red and blue glasses.

KUBERT:  Was that a drawing or was it a set-up? Or was it done in set-ups?

FELDSTEIN:  I didn’t tell Lenny how it was done...I don’t think! And what is the difference?

KUBERT:  Leonard said that was in the set-ups...he did mention it. He did say that it was in set-ups.

FELDSTEIN:  He did say it wasn’t set-ups?

KUBERT:  It was in set-ups.

FELDSTEIN:  Was in set-ups?

KUBERT:  Yah.

FELDSTEIN:  Well, actually, it was in set-ups. This was a stage. Naturally, you see the plane running away from me on the sidewalk?

KUBERT: Yah.

FELDSTEIN:  The fence running away from me? You can’t get that in planal (sic) shift. But that’s not the point. This is something he knew about while he was working for Supreme Knitting Mills. So if he came across this system, and say that it was...

KUBERT:   Did he see this?

FELDSTEIN:  Yes.

KUBERT:   Four years ago? He saw this four years ago?

FELDSTEIN:  Yes, My wife, my mother-in-law, my mother were there at the time. Lennie came up from Georgia Tech. I think he just graduated or was still going and I...

GAINES:  All this is quite besides the point.

FELDSTEIN: ...came up in a red Oldsmobile convertible.

GAINES:  All this is quite beside the point...

FELDSTEIN:  We were very...you know the old friend routine. I don’t say he stole this idea...but 3-D in comics was imbedded in his mind from this. Now, perhaps he ran across this patent while he was working for Supreme...

GAINES:   Or something else.

KUBERT:   He never mentioned it.

GAINES:   Or perhaps when 3-D in comics was thought of, Lenny having something to do with patents and knowing about it, which you or I or Al probably would never in our wildest dreams think to go look in a book of patents...I never did in my life until recently. He might have run across it then. I don’t know when he ran across it. As I say, I don’t even know for sure if he did run across it. Although I had a case all built up in my mind. It looked awful fishy.

FELDSTEIN:  Now, this is the patent.

KUBERT:  What’s his first name?

FELDSTEIN:  Freeman H. Owens.

GAINES:  He sent two letters of cease and desist to St. John’s...

FELDSTEIN:  He sent a letter to American...

KUBERT:  I know that there has been a furor up there. I know that there has been a lot of trouble up there.

FELDSTEIN:  Did the find that patent yet?

KUBERT:  This patent?

FELDSTEIN:  Yes.

KUBERT:  I’m not sure. I just came in the first of the week.

FELDSTEIN:  Well, well, he sent them another letter telling them that the number of the patent was. If you look at the date of that patent, Joe, you see that it expires this October...which means that it becomes public property.

 KUBERT:  I notice it was submitted in 1934.

FELDSTEIN:  Well, it was submitted, but it was given patent in ‘36. On October 13th. The point being that with clauses like you had...you tie us up with a process that was public property.

GAINES:  When I first went to my lawyer and he started raising objections, he said, “They’re up to something.” I says, “No, I know Joe Kubert. They’re not up to anything.” He kept raising objection after objection to the contract, and I kept trying to talk him out of it. So, I learned a lesson, don’t argue with a lawyer. Now listen to some of these. In the light of what you now know, you can see what was bothering me. Now, let me find the ones. Now this, “…licensee admits that prior to the date of this agreement, it has had no knowledge of or interest in any invention, process or technique for the creation of three dimension multiple plane effects from a picture produced from an original drawing or print on a single plane and admits licensor’s right to a valid patent therefore, and further agrees to admit the validity of any letters patent that may issue for said invention and never to contest the validity of any such patent.” 

FELDSTEIN:  In other words, we had to…after telling you that we knew your process...

KUBERT:  Yah.

FELDSTEIN:  Or a process that would be...it was your process. We had to then say we didn’t know it.

KUBERT:  Yah.

FELDSTEIN:  Now, do you see a reason for that?

KUBERT:  Now let me give you an explanation, this is the reason that was given to me; now I didn’t go into this blindly. There was certain information that I was given when I went into this and it seemed to me pretty logical stuff at the time, and perhaps it still does. One reason that we were asked, we were told, that it would be wise to put clauses like that in, was in case that a patent was not granted to us, on certain of those patents, in other words, if there had been...not figuring that the thing has been patented at first, but if it couldn’t be patented at all…In other words, if it was just unpatentable...

FELDSTEIN:  Or if it had been patented and was running out...

KUBERT:  That, that side of it I wasn’t given.

FELDSTEIN:  You see, that’s...

GAINES:  “The licensor agrees that it will disclose to the licensee the invention forming the subject matter of this agreement, said disclosure to be made in a written statement to be submitted to the licensee simultaneously with the execution of this agreement. Said agreement being part of a disclosure agreed by the licensee.” “The licensee agrees that it will sign said disclosure agreement simultaneously with the execution of this agreement.” And so on and so forth...“the licensee agrees to keep confidential the subject matter of the disclosure and any technique and processes disclosed,” and so on and so forth. “The licensee further agrees not to engage either directly or indirectly in the production of plates according to said invention or in the practice of said invention without the written consent of the licensor.” Here is what they were going to do. At least this is the way that ...

FELDSTEIN:  I...there were some other very weird paragraphs in it. Especially these ones about suits and infringements, where you have the right to decide whether you would sue or not. Well, cripes, if D.C. comes out with this system after October or November, when they can and I say to you, “Joe, sue them, this is your process,” you haven’t got a leg to stand on. This is public property.

KUBERT:  There is another problem there, too. Had we had a patent on it, and if you wanted to cause trouble for us, being that we had the patent, if you...I was going to be speaking broadly, if you want to cause trouble for us, you could set somebody up for us to sue and force us to sue these people. Therefore, expending a heck of a lot of our dough, making some sort of a deal with these...

FELDSTEIN:   That’s a very nice reason, but do you see mine? Isn’t it a little logical?

GAINES:  That’s the reason.

FELDSTEIN:  You had no right to sue D.C. after October.

GAINES:  And here’s the clincher, Joe.

FELDSTEIN:  Let me finish, please, Bill. With the existence of the Owens’ patent...

KUBERT:  Yah.

FELDSTEIN:   ...making...I mean the ending of the Owens’ patent, the fact that it expires, and the process becomes public property, you have no right to sue D.C. But I am mad as hell because I am tied up with you. D.C. isn’t tied with you, and therefore got 15-cent magazines, and I want you to stop them and you can’t. And you won’t.

KUBERT:  That was your objection in the first place.

FELDSTEIN:  All right. There was another clause in that agreement that we would be responsible for infringement suits on us.

GAINES:  That was the one that I couldn’t figure until it occurred to me. So what the hell could they be trying to do up there? Here they are selling us something that they don’t own.

KUBERT:  Yah.

GAINES:  What can they possibly be trying to achieve? Nobody could that stupid. Because they’d get sued, and then it occurred to me one time, they don’t get sued, I get sued. Because when my lawyer pointed that out and asked Posnack, or somebody up there, to put in a clause that if anybody sues for patent infringement: (1) they would defend the suit and, (2) they would pay the damages, they being American Stereo…

KUBERT:  Yah.

GAINES:  He says, “No. Take it or leave it,” he says.

FELDSTEIN:  Now, isn’t that rather weird?

GAINES:  That’s where I pulled out. Then we started looking and this is what we found.

FELDSTEIN:  Let’s hear Joe’s thoughts on this.

KUBERT:  Well, from the ay you speak, I mean, apparently you both feel that somebody knew all the time that this patent existed, and…

FELDSTEIN:  We suspected it…

KUBERT:  And possibly might have even pulled it out of the Washington files.

FELDSTEIN:  That is pure speculation.

GAINES:  We got fantasy minds, Joe.


FELDSTEIN:  Joe, Bill and I make plots all the time. And they’re very weird.

KUBERT:  Frankly, I knew that something like this existed. During last week, I knew that something like this existed. As I told you, Lenny…

FELDSTEIN:  During last week was a heck of a lot too late.

KUBERT:  Last week was the first time that I heard about it.

FELDSTEIN:  Lenny knew when the letters came.

KUBERT:  …Dreams about this. We started this whole business on the premise that we might get a patent. We went up to Posnack…

FELDSTEIN:  Had Lenny had any dealings with Posnack previous to you three going up…any private talks?

KUBERT:  You mean about the patent?

FELDSTEIN:  Yah. Posnack would have to be aware of this whole thing. In drawing up these contracts…if this, as I say, if our suspect (sic) is correct or even partially correct…if what we think…

KUBERT:  Yah.

FELDSTEIN:  …happened, Posnack would have to be in on this. In other words…

KUBERT:  Tell me this. I want to know this. In a cursory search…now you know there are two different types of searches…

GAINES:  This was very cursory.

FELDSTEIN:  In a cursory search, that patent did not turn up in Washington.

GAINES:  No, in Washington it didn’t. Well, on fellow it didn’t turn up for. We sent a patent lawyer down, and he specifically requested that…

FELDSTEIN:  He goes to a different department.

GAINES:  It’s one thing to request a patent, and it’s another thing to…

KUBERT:  What I want to know is this:  Should Posnack have turned up…

GAINES:  My God, yes. Four patent searches?

FELDSTEIN:  A cursory search should have turned up that patent in Class 88...if it was there.

GAINES:  That’s what I couldn’t figure…

KUBERT:  Well, you  know what’s going to happen, don’t you?

GAINES:  I know what’s going to happen.

FELDSTEIN:  What’s going to happen?

KUBERT:  St. John…the first thing St. John will do is sue Posnack because he put down on that patent application that to his knowledge he…he was submitting that patent on the basis that the patent…when a patent attorney submits a patent, he has to sign down…sign on the patent application…that as far as he knows, he sees no reason why this patent shouldn’t go through, and there is no patent…

FELDSTEIN:  As far as he knows, Joe. What is he doing, tying up his life?

KUBERT:  Yah. What the heck would they call it? Actually he didn’t do the type of job that he was supposed to do.

FELDSTEIN:  So what?

KUBERT:  Do you know who has made more money out of this thing that anybody else so far?

FELDSTEIN:  St. John.

KUBERT:  No, sir. Posnack. That’s right. Posnack has made more money than anybody in this whole deal so far.

FELDSTEIN:  How much does Lenny make?

KUBERT:  Lenny gets paid a salary from Stereographic.

FELDSTEIN:  Is he getting a better salary than he got at Supreme?

KUBERT:  Yah. I doubt very much if he’s go in on that frankly. That’s why, even if he was making a thousand dollars a week, which he isn’t, and far from it, he certainly wouldn’t take a think like this knowing it would go kaput sometime, and that would be the end of it.

FELDSTEIN:  It wouldn’t have gone kaput after November. October 13th to be exact. If Freeman H. Owens was out in Oshkosh, Ohio, and he never bothered about this or he was dead or sick in the hospital, and this thing ran off into October, unless he came out and sued, because he published previous to…

GAINES:  Do you know where Freeman H. Owens was?

KUBERT:  Where was he?

FELDSTEIN: In the hospital.

GAINES:  The man is so near to death. He’s had seven strokes. He’s an old man…a little old man.

FELDSTEIN:  Joe, Joe…

KUBERT:  Did you see this guy?

GAINES:  Sure.

FELDSTEIN:  Wait a minute, Joe, let me say something before we go on. I would say a month ago and before, up to about 1950, no one could even have located Freeman H. Owens.

KUBERT:  Why?

FELDSTEIN:  He was in a hospital.

KUBERT:  Since that time?

FELDSTEIN:  And it’s very difficult to locate a man from a patent. From 1950 to about tow months ago, he was in and out of hospitals. He had closed down his business, whatever it was, I don’t know. When we located him…when we located him…he had been out of the hospital three days, and we located him by a stroke of…I don’t know what kind of luck. I became a Mickey Spillane detective and I went up  to the library; we were in the library when we found the patent. I found his name, it said 1936; we went up to the…we took out old telephone books…we took out old ledgers on everything…

KUBERT:  You were the fellows that contacted him, told him about this thing, and caused him to write these letters?

FELDSTEIN:  No.

GAINES:  No.

FELDSTEIN:  He knew about it. When we went up to see him, he had the “Mighty Mouse" book in his hand.

KUBERT:  Well, what are his ideas on the subject?

FELDSTEIN:  He’s sore as hell. He hasn’t made a dime out of this patent since 1936.

GAINES:  He’s a pathetic old character. He…

FELDSTEIN:  In fact…well, it’s up to you, Bill.

GAINES:  At this point I guess it’s all right.

FELDSTEIN:  I don’t know; it’s up to you.

GAINES:  Yes, it’s all right. We bought the patent.

KUBERT:  I see.

GAINES:  But he wouldn’t sell the rights to sue.

FELDSTEIN:  Show him the contract. It’s a very simple contract. He knows it has got three more months to run. See?

(Mr. Kubert whistled at this point and laughed.)

FELDSTEIN:  What are you laughing at? I’ll tell you why we had to buy the contract, Joe. If we didn’t deal with you, and we went in on our own, you  couldn’t do anything to us, but he’s sue us, you understand? You couldn’t stop us if you had no patent.

(Mr. Kubert’s statement was indistinguishable at this point.)

KUBERT:  Now, perhaps you can tell me, what can he do to us now? Can he still sue us?

FELDSTEIN:  Can he still sue you?

KUBERT:  Can we still have him produce these books, the first books?

FELDSTEIN:  He can sue you for everything you’ve taken. In the first place, he can sue you for everything that you put out… for everything you have done. You know it’s very funny, Joe, we went up to him and he asked us what our names were, who we were, and after we got through with the preliminary discussion, he says, “If you come out before October 13th, I’ll sue you, too.”

GAINES:  Scared the s**t out of us.

FELDSTEIN:  Because you see, as soon s he has his finger on a guy who has been fooling around with the patent, the guy’s out of luck. Think of the proof he has of guys fooling around. I understand D.C. is coming out with a book. Do you know anything about it?

KUBERT:  Yes, I do.

FELDSTEIN:  What process are they using?

KUBERT: Very similar to ours. I understand Timely is coming out with a book, too, and Avon is coming out with a book.

FELDSTEIN:  They’re all using the shift system?

KUBERT:  Yes.

FELDSTEIN:  Owens is going to sue every one of them.

KUBERT:  So is Disney.

FELDSTEIN:  Disney is using the shift system?

KUBERT:  That’s right.

FELDSTEIN:  But it’s based on that patent.

KUBERT:  Exactly.

FELDSTEIN:  Now there comes a little thing. That patent is for obtaining film strip. That patent is for obtaining a film strip…and Owens ay question the validity of that patent on the ground that they used the shift.

GAINES:  Yes. I don’t know how the patent was ever granted. There are seven claims. Every one starts with …

(Mr. Kubert then whistled.)

GAINES:  “A method for producing stereoscopic motion picture strip film.”

FELDSTEIN:  All right. When Mr. Dellacourt…

GAINES:  Listen to this one.

FELDSTEIN:  Now wait a minute…

GAINES:  No, let me just read Claim 8.

FELDSTEIN:  That’s the claim in Owens’ patent that covers everything.

GAINES:  “The process of producing pictures with stereoscopic effect which comprises separating a flat picture into a plurality of sections representing portions of the picture of seemingly like distance from the point of view, making copies of the foreground sections, each upon a separate sheet, superimposing said sheets and background in register for simulating the appearance of the original view as seen by one eye and copying the same, making a second copy of the same after shifting said superimposed…superimposed sheets laterally with reference to the background to simulate the appearance of the original view as seen by the other eye and reproducing said copies for visual observation…”

FELDSTEIN:  That covers it.

(At this point there were three people talking at one time making the voices indistinguishable.)

FELDSTEIN:  Now, when Mr. Dellacourt takes a picture from a film strip and puts it into a book, he goes right back into Owens’ patent.

KUBERT:  Tell me this, though: What was the sense of you buying this patent?

FELDSTEIN:  So we can go ahead for the next three months clean. Do you realize everybody that has put their finger on his patent is now sueable?

GAINES:  Everybody that’s thought about it.

FELDSTEIN:  D.C. is going to be sued if they come out. In fact, they could be sued anyway whether they come out or not, just for what they’ve done.

GAINES:  We went up to Owens and we offered him $100 for the patent. He said, “Bububububaa!,” and I said, “Well, look. We go ahead and produce the book and the day after your patent expires, we hit the stands.” And he says, “Oh, no, you can’t.” He’s a funny little fellow. He says, “Anybody who almost thinks about this patent before it expires, no matter when he comes out, he violated…he infringed.” So I checked with my patent attorney, and he’s right.

FELDSTEIN:  The man has…

KUBERT:  S**t.

FELDSTEIN:  The man has 200 patents.

(Mr. Kubert then started whistling.)

FELDSTEIN:  Watch your language, Joe. That man has 200 patents. He has fooled around for a long, long time with patents. He’s been in and out of patent searches and patent infringement suits.

GAINES:  He spent everything he ever had getting patents.

FELDSTEIN:  Well, 200 patents would mean about $60,000. You multiply 200 by 300, that’s cheap. $300 a patent is cheap. That’s $60,000 he sunk into patents. Any man who has sunk that kind of money into patents, he’s going to get every dime he can out of one of them or all of them. So we had to buy the patent. We didn’t exactly buy the patent. We bought the exclusive assignment.

KUBERT:  So he let it go for three bills, huh?

FELDSTEIN:  That’s right. We would have paid a thousand.

KUBERT:  Do you know how much St. John would have paid for it?

FELDSTEIN:  He’s going to now. Why wasn’t it found so St. John could buy it? Because then, there would be no such thing as American Stereograph (sic) Corporation.

KUBERT:  That’s true.

FELDSTEIN:  What do you think, Joe?

KUBERT:  I don’t know.

FELDSTEIN:  So when Lenny comes up to us--and believe me when I say this...when Lenny came up to us last time, it was on a Monday, two weeks ago, we had this patent in our possession.

KUBERT:  You had this?

FELDSTEIN:  Yes. And when he threatened to sue us on a civil suit because we stole his idea, when all we did was take our process and make a search, and find this patent, and buy it…

(At this point Mr. Kubert whistled.)

GAINES:  Now I feel very sorry for the innocent parties involved, and I think there is a lot of them. I think poor St. John is going to have a stroke.

FELDSTEIN:  Now, wait a while, wait a while. There are several different ramifications of this. We assume there are innocent parties involved.

KUBERT:  I’ll tell you frankly: I go on the assumption that Leonard is innocent…Norman definitely.

FELDSTEIN:  So who’s guilty?

KUBERT:  Not St. John. If anybody knew about it, there is only one man who could have known about it, and that’s Posnack himself. As I said before, up to date, this guy has made over $6,500 from us.

FELDSTEIN:  But you say Asher Blum did not find this patent. Wait a while. Let me ask you another question.

KUBERT:  He might not have made a search. I think that all he did was use the opinion that…

FELDSTEIN:  An opinion on what?

KUBERT:  On that patent. On the worthiness of the patent.

FELDSTEIN:  Based on Posnack’s search?

KUBERT:  On Posnack’s…not search…or maybe it was based on his search, too…but it was based on his patent application…on Posnack’s application.

FELDSTEIN:  O.K., you only go an opinion of a patent application.

KUBERT:  That may have been it. I was under the impression that it was a search, too.

GAINES:  Oh, from Blum? I don’t think Blum made a search. It would be pointless.

FELDSTEIN:  All right. Now, let’s go on…the only other possibility is that there was something screwed up in Washington, which we ran across…

KUBERT:  Yah.

FELDSTEIN:  …which is possibly that all patent searchers run across. And that was that this patent did not turn up in Class 88.

GAINES:  In other words, one…

FELDSTEIN:  But it’s in the New York Public Library.

GAINES:  Now, Lenny knows things are in the New York Public Library.

KUBERT:  That may be where he turned up this information anyhow. As I said, he did mention during the week that he had some information. Maybe that’s where he got it.

FELDSTEIN:  You mean…well, of course when you got the letter…When American Stereo (sic) got Owens’ letter, he probably ran right to the library to read the patent. .I’m just interested to know whether this is the first time he’s ever seen this patent.

KUBERT:  The first time I’ve ever seen this patent?

FELDSTEIN:  No…Lenny. This is the first time you’ve seen it. I can tell. But Lenny…

KUBERT:  I don’t know. I don’t know.

FELDSTEIN:  I hope he’s also innocent, but of course, this isn’t going to save anybody as far as Mr. Owens is concerned.

(There were a number of pauses at this point and indistinguishable conversation.)

FELDSTEIN:  Of course, what’s been done on the other three books? They’re not being engraved yet, are they?

KUBERT:  Yes, I think they are.

FELDSTEIN:  They’re being engraved? Do you think if St. John knew about this, he’d run other books? Well, he couldn’t anyway, unless he’d want to take a chance of a court suit. But his is what it’s going to get. It’s going to get awfully messy. I mean, we’re not involved in this at all. Mr. Owens is the one who is involved. He’d probably use Scheiman, huh?

GAINES:  Yes, Owens would use him

FELDSTEIN:  He’ll probably use Scheiman, because Scheiman drew up our contracts, and he met Scheiman, and he has his own patent attorney, and between a patent attorney and a court suit, he’ll probably use Scheiman. You see, he was very shrewd about it. He knew about Lenny…

KUBERT:  Please don’t ask me to keep this stuff to myself, because I’ll have to tell Norman.

GAINES:  No.

FELDSTEIN:  No. We didn’t ask you up here to tell you any secrets. We felt that we wanted to tell you first.

KUBERT:  I appreciate that very much.

GAINES:  I wanted also to tell you our speculations. I mean theoretically you should have known all along about these letters. Now, heck, the letters went out two weeks ago. St. John got a letter, American Stereo (sic) got a letter.

FELDTEIN:  Well, Joe said he knew something about…

KUBERT:  I had heard…

FELDSTEIN:  You should have read this patent last week.

KUBERT:  I haven’t seen…look, that’s the first time I’ve seen…

FELDSTEIN:  Well, the number was in your office last week.

KUBERT:  What number?

FELDSTEIN:  The number of that patent.

KUBERT:  Was in?

FELDSTEIN:  Was in your office last week because Mr. Owens sent you a letter, saying you are infringing upon Patent 2053057...whatever it happens to be.

GAINES:  I happen to have a copy of the letter here that Scheiman sent…

KUBERT:  Well, tell me this: Did that letter start suit, or did it just say to stop and desist?

FELDSTEIN:  Yes. Yes, the first letter said cease and desist, you are infringing on my patent.

KUBERT:  Yah.

FELDSTEIN:  And Lenny wrote back…I don’t know whether he wrote back with Posnack’s approval…I’m sure he did…”What patents?” So he sent back a letter, “This patent.” Owens sent back a letter, “This patent.” So Lenny sent back a letter, “We’ve got to find out what it looks like. We’ll send to Washington.” But let’s face it, Joe. In a half an hour he could have read that patent. In a half an hour you should have read the patent…and Norman and St. John and everybody.

GAINES:  Here was Lenny’s answer of July 17th. Today for the record is the 3rd of August. Here is the carbon of Owens’ letter of reply.

FELDSTEIN:  On July 24th , this was sent…you probably got it on the 25th.

GAINES:  What we’re getting at is that if you don’t know these, Joe, that means somebody is keeping something from you which is what I suspected right along.

KUBERT:  You know, Norman and I have been working like…

GAINES:  Yes, you guys have been uptown in the office. You don’t know what’s going on.

FELDSTEIN:  Why did you move? Did you move of your own free accord?

KUBERT:  Yes, because I couldn’t get the stuff done there.

(At this point Mr. Kubert whistled.)

GAINES:  I know it’s quite a shock, Joe, and I…

FELDSTEIN:  I mean, for example, we’re in production now, and we go to order glasses, and we find out we gotta wait for fifteen million glasses to be made for St. John before we can get ours.

KUBERT:  Then you know how much Mr. St. John…

FELDSTEIN:  Yes. We know all about it. The point is this: Is he doing this on the face of this, or has the wave not rolled downtown yet to Freedman?

KUBERT:  I don’t know. Perhaps, the wave hasn’t. I don’t know, I don’t know.

GAINES:  Well, here’s what…

KUBERT:  But I’m sure as hell going to find out.

GAINES:  Here’s what Lenny told us when he was up about, I think, two or three weeks ago Monday. I think it was three weeks ago. He said something to this effect. He says, “A lot of money has been sunk into this thing and we’re going to send out a letter in a few days putting ourselves very clearly"…a tough letter, "so forth and so on.” We got the tough letter…it was one sentence! And he says, “We’re going to prosecute any infringers,” …and so on and so on. He said, “I’ll tell you this,” he said, “I don’t know, I don’t care what process anybody comes out with. To protect ourselves, we’re going to sue.”
He says, “Posnack has a process! …papers all drawn up against every single publisher…”

KUBERT:  He did have papers drawn up. He had one paper, I know. I don’t know whether it had any name…no, it didn’t have any name on it at all…but a paper of infringement. Drawn up in case…

FELDSTEIN:  Infringement against what, Joe?

KUBERT:  Against the first fellow who comes out with a patent that’s similar to ours.

FELDSTEIN:  A process?

KUBERT:  A process.

FELDSTEIN:  What is he going to sue on? What grounds?

KUBERT:  Based on the fact that we were going to get a patent. I have seen that paper.

FELDSTEIN:  Oh, you mean…but he couldn’t do anything now?

KUBERT:  Oh, not until the patent is passed upon. As a matter of fact, it was about a month ago, and I asked…

FELDSTEIN:  Now, that’s strange.

KUBERT:  And he was going to go ahead and do that. He showed us letters and everything else.

FELDSTEIN:  Of course, the funniest thing about this is you might get a patent. Who knows what goes on in Washington?

KUBERT:  That’s the craziest f*****g thing I’ve ever heard.

FELDSTEIN:  But Owens will contest it. He probably will contest…

KUBERT:  Well, the first thing that St. John will…

FELDSTEIN:  Now, wait a while. You said something about Disney used the shift. He used this patent?

KUBERT:  Yes, yes. He had a whole write-up…was it, some sort of a camera magazine where the whole process was explained.

FELDSTEIN:  Did it say it was patented?

KUBERT:  I don’t know. I didn’t read the article.

FELDSTEIN:  You don’t know what kind of a magazine it was?

KUBERT:  No, I don’t remember. I think it was “American Camera”.

FELDSTEIN:  Mr. Owens will probably be very interested in it. I don’t know where he’s going to get all the money to sue all these guys, but he’ll go after them.

GAINES:  The Disney thing, look…

KUBERT:  What St. John will probably do, the first thing, is try to get a hold of this guy Owens and try to settle with him. He can’t…he couldn’t afford to take a suit at this point. He’s too far over his head.

FELDSTEIN:  That’s a very strange thing. But we don’t know whether Mr. Owens can settle. Can he, Bill? Bill has an exclusive ownership assignment. Mr. Owens would have to settle for what’s been out on sale prior…

GAINES:  He can settle or sue on “Mighty Mouse”. As far as St. John is concerned…

FELDSTEIN:  Wait a while. Everything else, too.

GAINES:  Here, the only way that St. John could come out with the other three books, as I see it…

FELDSTEIN:  Is for him to first settle with Owens, and then get a license from Bill.

GAINES:  …is to get a license from me…which I ain’t going to give probably…because I want to get out first at least with my two books…and also he’d have to get Owens’ permission not to sue him, even if I did license him, because although I licensed him, I am only able to license as of…what was it, July 17th?

KUBERT:  As you say, this lasts only about ten weeks, twelve weeks, doesn’t it?

FELDSTEIN:  Yes, but…Joe, you better not use any of that artwork you have been working on. You’d have to start all over, clean, because it would be touchy. Of course you could try and slip something in. As of October 14th, you’d have to start clean, and I don’t know whether you could, because you guys fooled around. You’re infringers already. I don’t know if you will ever be able to play around with this patent, and that’s why we didn’t want to fool around with you, because we didn’t want to get ourselves involved; when you asked us not to…admit that we never knew the process…He doesn’t look shocked. I don’t know what’s the matter with him.

GAINES:  Maybe he’s numb.

KUBERT:  It’s quite a thing. This, I never figured on…never.

FELDSTEIN:  We didn’t either, Joe. But you see, there was no reason…for example, we understand that in the Second District Court, the Federal Court, when an application for a patent is made, you cease to retain a fair…a trade secret.

GAINES:  That’s besides the point.

FELDSTEIN:  That is the point, William, as far as I see, so why all the shenanigans? You guys were protected. Nobody is going to get if for application before you, whether you made it in February or March or April. Here, we are dealing with you in the beginning of July. Why all the shenanigans? What is this business with disclosures and everything? The only  reason that we could feel was that there was no actual thought about a patent, that this was possibly a trade secret…

GAINES:  Well, they had to have put in for a patent because, although that wasn’t in the contract either, that’s the first thing my lawyer spotted. He says, “They expect you to put in your book, “Patent Applied For”, and they don’t even have it in the contract that there is a patent applied for.” He says, “Supposing there is no patent applied for, you’ll get shafted.”

*GAINES:  It’s illegal.

KUBERT:  That’s right. I remember he made mention of that.

GAINES:  So they agreed to put in an thing saying, “Patent Applied For”. So I assumed there was a patent applied for. Well, in any event, whether there was fraud involved or whether there wasn’t fraud involved, I don’t know. It really doesn’t make too much difference to me.

KUBERT:  Not now, anyhow.

GAINES:  It may to you. I mean…you know…

FELDSTEIN:  I hope Lenny wasn’t in on this thing, too.

KUBERT:  I’m pretty sure. It may have been just a matter of circumstance…

FELDSTEIN:  When we made all these conjectures, I lifted myself from being Lenny’s friend, and looked at it from a purely business point of view.

KUBERT:  Yah.

FELDSTEIN:  And when I went down to read this patent in the library and I thumbed this way and found a patent…I’ve got it here somewhere…a patent on some kind of a bobbin or some kind of control on a knitting machine which was expiring at the same time s this Owens’ patent, so Lenny might have said…might have been looking for things that expire, so they can improve their machinery. Isn’t it possible?

KUBERT:  It’s possible.

GAINES:  Well, what started this whole thing was, when we were down there on that first Friday, and told you we knew a process, and told you our process, and Lenny says, “Well, you got to sign a paper anyway that you didn’t know the process.”

KUBERT:  Well, let’s look at it…

GAINES:  That’s when I first got suspicious.

KUBERT:  We had an attorney. The guy told us what to do. Comes from patents and contracts and stuff like that.

FELDSTEIN:  Well, if you were in…

KUBERT:  We know very, very little…

FELDSTEIN:  If you were in my place…

GAINES:  I know what the trouble was.

FELDSTEIN:  If you were in our position, would you have signed that kind of thing? Here you know a process. I have patents pending on a process. You look at my sample. You say, “I can do it”. And I say, “Well, you got to sign that you can’t.”

KUBERT:  Well, I guess then it would be all according to how badly you wanted to come out with the damn thing.

FELDSTEIN:  Well, we wanted to come out badly.

KUBERT:  If you wanted to sacrifice the fact that you had come out with it first…you had the thing first…and you wanted to admit that you didn’t know it at all…from coming out with that book…as soon as you wanted to…at that particular time. It’s purely up to the individual. I don’t know. Frankly, I don’t know what I would have done under those circumstances.

FELDSTEIN:  Joe, there was no reason for us to say that. Unless there was a fear of some kind of trying to invalidate patents or something. Do you understand? If it was a straight patent deal, and we would come in and say, “Although we know how you do your patent, you’ve got your application in”…there is no reason for you to make me say I don’t.

KUBERT:  I can’t believe Posnack would know any of this, too, because that guy ahs been so excited himself about starting a whole new field of comic books and commercial advertising, etc., etc., and I don’t think he would have gotten so enthused about something that apparently has already been done, that apparently has already been patented. I don’t think he’d take the chance with his whole career that way…

*KUBERT:  Quite a business.

FELDSTEIN:  How is the family?

KUBERT:  Fine. You know I had a boy this summer.

FELDSTEIN:  I know. You know, I expecting my third any day now.

KUBERT: Really?

FELDSTEIN:  Yes.

KUBERT:  This is old hat to you.

FELDSTEIN:  When was yours born?

KUBERT:  The 27th of last month…

(At this point the conversation was inaudible.)

KUBERT:  Well, if anyone is going to get hit with this thing, it’s actually St. John. He’s going to get hit harder than anybody else…

(At this point the tape ended abruptly. This transcript was continued after the tape had been reversed and its play continued.)

FELDSTEIN:  …made his own personal patent search?

KUBERT:  Yah. So far as I know, that’s what he told me.

FELDSTEIN:  He had his own patent search?

KUBERT:  Perhaps they investigated in Washington and didn’t find hide nor hair, just as you didn’t, on that patent up there.

FELDSTEIN:  That’s very weird. Why should a patent disappear like that?

KUBERT:  I have no idea.

FELDSTEIN:  This patent of all patents.

KUBERT:  That’s right. I have no idea.

FELDSTEIN:  Of course, I don’t know how many patents are missing, but…

KUBERT:  It’s a very strange thing.

FELDSTEIN:  It really is.

KUBERT:  It really is.

FELDSTEIN:  How about some lunch, Joe?

KUBERT:  No, no, thanks. I lost my appetite.

FELDSTEIN:  Come on, grab a sandwich, Joe.

KUBERT:  No, I couldn’t. I had a late breakfast.

FELDSTEIN:  You know, I felt all along that you weren’t aware of this. You know, it was very funny. I don’t know. Posnack probably never even thought anything about it. But I called up Posnack, when we were in the middle of this phoney contract and these things were bouncing on our heads. You know, fact after fact coming through. I called him up and I said, “Mr. Posnack, are you patent attorney for the Supreme Knitting Mills?” And he said, “Yes.” And I said, “Thank you.” And I hung up. It was just another thing that made me suspicious…if you have a suspicious nature, and I’m probably a suspicious type guy. So I asked him and he said, “yes”, he was a patent attorney for Supreme Knitting Mills, and all of a sudden things started to fit in; Lenny was dealing with Posnack.

KUBERT:  Well, that’s how he came to Posnack in the first place.

FELDSTEIN:  Well, he had been dealing with Posnack before. He had been dealing with Posnack at Supreme.

KUBERT:  We had had no patent attorney or any experience with a patent attorney and Len was the only guy that did. It was perfectly natural and normal that we should go to him.

FELDSTEIN:  I assume you’re going to talk to Posnack now?

KUBERT:  Definitely.

FELDSTEIN:  Jesus, I’d love to hear you…hear it.

KUBERT:  We’re going to get the whole set together. Well, I’m pretty sure that St. John will institute some sort of suit of negligence against Posnack for all this.

FELDSTEIN:  That’s never going to cover the cost of what St. John is probably going to be sued for. What did he print now, a million?

KUBERT:  Yah.

FELDSTEIN:  He’s got a million…he’s already put on the stands a million “Mighty Mouse”?

KUBERT:  So far as I know.

FELDSTEIN:  And he’s planning more?

KUBERT:  Oh, yes. He had planned…

FELDSTEIN:  They’d be coming off the press…I know he printed 500,000.

KUBERT:  Yes, he had contracted for a million…that’s five hundred…he contracted for an amount of paper to print a million books…he had contracted with the printing company to have…

FELDSTEIN:  Who engraved your plates, by the way?

KUBERT:  Well, you  know, we told you Haynes.

FELDSTEIN:  Haynes did the plates, too?

KUBERT:  They did the whole package.

FELDSTEIN:  The did the whole package. They’re awfully expensive you know.

KUBERT:  Yah.

GAINES:  We priced…

FELDSTEIN:  Well, it was an expensive job.

KUBERT:  It was an expensive job, expensive job…

FELDSTEIN:  It was a beautiful job. You know Post is going crazy trying to match those inks. So go ahead…

KUBERT:  Ah…what was I saying now? Gee, my thoughts are going in fifty different directions at the same time.

FELDSTEIN:  Yeah…but we were talking about the print order of St. John.

KUBERT:  Oh, yes. The first run was to be 500,000 and after that, if it showed some sort of a sale return, he was going to run a second 500,000. I believe he had already called for it…if it hasn’t been printed already.

FELDSTEIN:  Well, in which case, it’s only 500,000 print order.

KUBERT:  I don’t know. I’m not sure.

FELDSTEIN:  Well, you see, it was Mr. Owens’ moral and legal duty to let you know as soon as he knew…I mean…so he couldn’t suck you in…or anything like that.

KUBERT:  But actually that guys that made him known of the fact that all these things were gong on, were you.

FELDSTEIN:  No, let me explain that to you. He was the craftiest son-of-a-bitch.

GAINES:  He thought we were from you.

FELDSTEIN:  He thought, he had a feeling we might be from “Mighty Mouse”. You see, and that’s all right. We thought he had already sold the process to you.

GAINES:  I tell you, it was only…

FELDSTEIN:  The reason why we’re telling you know is this reason.

GAINES:  It was only a few days ago, Thursday or Friday, which is why I called you Friday, that we had the papers registered in Washington of the transfer.

KUBERT:  I see.

GAINES:  Up until that time, we were sitting on pins and needles wondering whether it would come back, and it turns out that maybe Mr. Owens sold these, this patent, to several different people. I don’t know.

(At this point Mr. Gaines laughed.)

GAINES:  But he knew about “Mighty Mouse”.

FELDSTEIN:  You see, when we went over to see him…

GAINES:  And he wasn’t sure who we were…

FELDSTEIN:  …he had the “Mighty Mouse” book…

KUBERT:  What was his contention? He says he’s definitely going ahead and bringing suit?

FELDSTEIN:  Oh, yes.

GAINES:  Oh, yes.

FELDSTEIN:  Listen. When we had the…when we went to see him, he had a “Mighty Mouse” book, and we told him we were comic publishers and we were interested in putting out comics in three dimensions, and he said, “You mean like this one?”, and we said, “Well, we’re interested in putting out our process, and we’ve made a search, and we found your process, so we’d like to buy it from you.” So the upshot was, he said, “All right, I’ll sell you my process, but I want to retain the rights to sue these infringers and anybody else who infringes up to…

KUBERT: Up to the time this process lapses.

GAINES:  Up to two or three months after this process lapses.

FELDSTEIN:  He’ll sue up to December 15th. If anybody hits December 15th…

KUBERT:  Why?

GAINES:  Because no one can possibly hit the stands…

KUBERT:  Unless, unless he’s been prepared.

GAINES:  Without starting to prepare in advance of…

FELDSTEIN:  Now, I understand Toby is in something…

KUBERT:  Yah.

FELDSTEIN:  Avon…

KUBERT:  Yah.

FELDSTEIN:  …And all the rest of those guys. If you want to keep that a secret, you ought to tell St. John not to tell anybody. Let them all suffer, I mean why should he suffer alone? But he can’t…Mr. Owens can’t let them know until he finds proof, and the proof would be the book. You can’t send a letter that you’re going to infringe on a rumor. That’s why we didn’t want to have Lenny and Norm come up. Just in case, we just wanted to see your reaction. If you want to bring Normy in now, it’s perfectly all right. But, if fact, I’d like to see Normy’s reaction, too.

GAINES:  Well, all through this thing, I sort of felt that Joe and Normy were in the clear, but Normy being…you know…

FELDSTEIN:  One thing, I don’t understand…if there were anything going on, it would be so easy, so much easier for you, for American Stereographic, to have gone to Owens, unless…

(At this point three people were talking at the same time.)

KUBERT:  If anybody had even come up with an idea similar to it afterwards, that could add to it, we would try to work some sort of a deal where he could become part of us or we part of him.

FELDSTEIN:  So…we’re going ahead with it in any  event.

KUBERT:  Well, naturally…

FELDSTEIN:  In fact, we pulled our first proof yesterday; Post, we pulled our proof at Post. They died.

(At this point Mr. Kubert laughed.)

FELDSTEIN:  Why? Because they were infringing on the system.

KUBERT:  That’s right.

FELDSTEIN:  They were afraid they were infringing on you system. Now, they find they’re actually infringing on a patented system. You could do nothing to them until you got your patent.

KUBERT:  That’s right.

FELDSTEIN:  And you could do nothing retroactively. They’d have to stop immediately and then get permission from you. Now, they’re infringing.

KUBERT:  Very ironic, very, very ironic.

FELDSTEIN:  Well, I don’t see any irony in it.

KUBERT:  Well, I’m sitting now in the position where you fellows were several months ago when you came up to see us.

FELDSTEIN:  Yah, now you know our process.

(At this point there was general laughter and there was a long pause.)

KUBERT:  Well, I better get back and tell the boys the good news.

FELDSTEIN:  Well, look, if you want to come over later on with the rest of them, I mean, and talk about it any more…

KUBERT:  Something, something should be done about it. I don’t know. Actually, I don’t think…I don’t think it right that St. John suffer by this. The poor f****r went into the whole thing in good faith.

FELDSTEIN:  By the way, what is your agreement with him? Are you responsible, or is he responsible? Do you remember these things? In other words, did he sign a contract like you wanted us to sign?

KUBERT:  Yes…oh, yes, he signed that contract.

GAINES:  He signed the contract…

FELDSTEIN:  Posnack is pretty clean.

GAINES:  You won’t get sued. St. John will.

KUBERT:  Well, I know. That’s…

FELDSTEIN:  They will, too.

KUBERT:  Even if we did get sued, actually, there isn’t enough money in the jackpot to even hurt. The whole corporation…

GAINES:  Well, that was the first thing I said. Remember when I said, “Suppose so and so and such and such…”

KUBERT:  Oh, we would have, I know. St. John said it himself.

FELDSTEIN:  Gees, I just feel very badly in case it goes to personal people.

KUBERT:  What do you mean?

FELDSTEIN:  I mean, I don’t know. I don’t know what this character is going to do…Owens. So he sues American Stereo (sic) and American Stereographic has no money, so he sues Lenny Maurer and Joe Kubert and Norman Maurer and Posnack.

KUBERT:  Well, if it does work out that way, that’s the way it will be. I mean, there is…

FELDSTEIN:  We’ll try and talk him out of it.

KUBERT:  Ah, s**t.

(At this point there is general laughter.)

FELDSTEIN:  no, he’s very friendly to us. You see, we came to him above-board, and explained things…and although he was very crafty and nasty in the beginning, you know, when we said we were coming out with something, he said, “All right, so don’t try it now, buddy.” You know, until…

(At this point there was general laughter.)

GAINES:  We had made some little experiments…

FELDSTEIN:  We had made some experiments. I drew the cells up, the same cells I showed Bill before he went up to sign the disclosure. We took pictures of it, we shifted, we took more pictures. We did it with a Polaroid camera, and we viewed it…you don’t have to show him, Bill. It’s all right…and we showed him the pictures…stupid asses that we were.

GAINES:  As soon as we showed him the pictures, he had us.

(At this point there was more general laughter.)

FELDSTEIN:  You want to show him what Owens did 36 years ago? Well, you see, the drawings he made. He used…and you know that’s the strangest thing. He used comic strip. He definitely had this in mind. It’s very funny how…

GAINES:  Couldn’t sell it then.

FELDSTEIN:  You see, this business with the contract is what pushed us into this thing.

GAINES:  Do you remember…I’ll tell you something funny now. Do you remember the day I called up and said, “Send Bill Elder back and stop all work”?

KUBERT:  Yah.

GAINES:  We didn’t know from nothing that day. That was a last ditch attack.

FELDSTEIN:  We were trying to get a cheaper price from you.

GAINES:  To bluff you into better terms.

FELDSTEIN:  We were going ahead with you.

GAINES:  And we had decided…that was on a Thursday.

FELDSTEIN:  It was a Thursday.

GAINES:  And we decided that by Monday, because Scheiman was going to be out of town…Otherwise we would have had it done Friday…Monday we were going down and sign the contract.

(At this point there was general laughter.)

FELDSTEIN:  Scheiman says to us, “All right”…

GAINES:  The next day we found the Owens’ patent.

FELDSTEIN:  “…see if you can get it a little cheaper.”

GAINES:  We found the Owens’ patent on a Friday, and we dug him up on the following Wednesday.

FELDSTEIN:  No, we dug him up on the following Monday.

GAINES:  We dug him up Monday, but we signed the papers…

FELDSTEIN:  We signed them on Wednesday…

KUBERT:  Well, boys…

FELDSTEIN:  We were actually saving our neck, too.

KUBERT:  Oh, sure…boys, thank you very much for the information. And, well…

(At this point there were three people talking at the same time.)

KUBERT:  No matter what happens, I won’t run.

GAINES:  You don’t have to run. But I mean…

KUBERT:  In case any suit is instituted or anything like that, I certainly won’t put on my coat and walk away.

GAINES:  Yah, if there was anything dirty going on, just make goddamn sure that it gets on the record somehow, that you were not involved in this. That’s all. If there was, and if there wasn’t, there wasn’t…We’ve kept this a big secret as we say until those things were registered and we were sure we had them. I wasn’t sure that we weren’t being conned or something. Now, I suppose I’ll…it’s no secret now, I’m willing to let the cat out of the bag with anybody because…

KUBERT:  Well, you can certainly blow it from the rooftops now, Bill.

GAINES:  I don’t want to blow it. I just want to keep everybody off the stands.

FELDSTEIN:  You see, Bill is in a funny position. Mr. Owens would like to see lots of people come out.

GAINES:  You see, if somebody comes out with a book…

(At this point the voices were inaudible.)

GAINES:  He can, but I can’t. So it’s to my advantage to call up everybody and say, “Don’t do it, fellows”. “Don’t do it, so I can get out”.

FELDSTEIN:  And then, on the other hand, Mr. Owens doesn’t give a damn. He would rather them come out. What did he get? A measly 300 bucks out of Bill.

KUBERT:  He may very well…ah…St. John may very well go ahead and continue along the same plans that he has, and decide to fight it in court. Because I think he sunk too much into this at this point to stop. He may…he may  go ahead and continue as he is…

FELDSTEIN:  I would assume that he would do that just…just…I mean from a safest point of view.

KUBERT:  That’s right…I’m pretty sure…

FELDSTEIN:  I wouldn’t be surprised if Owens would settle on “Mighty Mouse”, and…

KUBERT:  I am almost positive that he will not stop production dead as it is right now and leave every…

FELDSTEIN:  I just hope he stops…for a while, as we can get our glasses.

(At this point there was general laughter.)

KUBERT:  He is on production on approximately eight books…all 3-D.

FELDSTEIN:  There is no question about it, it’s a very hot item. Why would we come running up to you? I mean Bill and I are no schnooks.

KUBERT:  As I say, the thing is settled down now. The dust is pretty much cleared away…well, thanks a lot for calling me over.

GAINES:  O.K., Joe.

KUBERT:  I should thank you for your confidence and everything. Believe me, thanks a lot.

GAINES:  Give us a call if you find out anything new that you care to tell us.

KUBERT:  I’ll do that, and if there is anything that you can aid me with…by for instance, contacting this guy Owens…Incidentally, do you have his address, so we can contact him?

FELDSTEIN:  You got three letters. American Stereographic sent you the letters…

KUBERT:  He’s at that address?

FELDSTEIN:  …His home.

KUBERT: He is home.

FELDSTEIN:  Well…

GAINES:  His home…

FELDSTEIN:  That 116th Street address is his home.

GAINES:  If you want to contact him today, he’d be there by the time you’d want to contact him, probably. He comes into his office about an hour a day.

KUBERT:  He doesn’t have a phone on his…

FELDSTEIN:  No, he doesn’t. It’s a…

GAINES:  Boarding house.

FELDSTEIN:  Boarding house.

KUBERT:  O.K. Thanks a lot, fellows.

GAINES:  O.K., Joe. See you.

FELDSTEIN:  Take it easy.

KUBERT:  Right.

(At this point the door slammed.)

GAINES:  Nance, you want to hear it? Well, wait five minutes and come up.

(At this point there were general whispers.)
__________________________________________________________
*  Probably not this speaker. The transcript made several such erroneous credits and the asterisk is used to indicate these.