Harley St <1>
May 19/54
My dear Sir
If you knew how I am beset you would not be surprised at my non-reply, or rather delay in replying to your note of the … . I had just written the words in an “agenda” for today “be sure and answer F.T” when I took up your note of yesterday and its enclosed draft of “Affidavit” <2>
In the first place let me ask whether making any affidavit at all about the matter involves appearing in Court undergoing a Cross examination and (as a necessary preparation) going de novo <3> through a course of reading – not of new matter – to get new opinions and learn new facts, but of things once quite familiar, now utterly gone glimmering through the mists of things that were – my own old notes (which I hardly know where to lay my hands on) and [illegible deletion] all the papers which I read and reflected on when I was actively engaged in photographic experiments – in short going through a regular process of repairing the breaches that time and inattention (and something of failing memory) have made in that sort of armour of complete preparedness a man has to put on when he goes down to do battle in a law court
As a simple act, I am quite prepared to make affidavit that I believe you to be the inventor of the Kalotype or Talbotype process<4> – The educing a dormant picture by a stimulating wash, nominative Gallic acid (for I have nothing to say about pyrogallic) which I certainly never heard of till I read it in some of your papers (I cannot now say which, as I have not a book here to refer to. (I should however see how it stands in the specification of your patent referred to).
To your Nos 1.2.3.4 I have no objection but to your No 5 I am unable to say anything. I have no belief in the matter one way or other. I suppose anybody who had made many endeavours at photographic representations of real objects would try his hand at a portrait
(6.7.) As regards the Collodion process. I really have not gone otherwise than very superficially into it, & there are probably 50 Collodion processes. There is no doubt that that collodion process which requires a wash of Gallic acid to bring out a dormant picture employs pro tanto your principle but there may be distinct patentizable points about it other than yours – and here comes what I conceive to be the point of the whole question –
– (8) It does appear essential that in producing a positive on paper from a negative on glass collodionized your Kalotype process (the developement of an invisible picture) should be resorted to, and as it is perfectly possible to obtain a positive picture on paper from a negative on glass by other means than those described by you (as I suppose) in your specifications (as for instance by the destruction of vegetable colours) I cannot make affidavit to No 8 – and in general with regard to the whole question –
(9) I consider that if you have patentized a process, and thus that patent is established by proof of its being your sole invention any one who uses that process as part and parcel of any other without a licence infringes your patent. But it is not matter of opinion or belief that he does so use it which can Establish the infringement. You must prove by some direct evidence that your process has been used. I can make affidavit to my belief that your process is very generally resorted to for obtaining positives and that it makes a part of “the collodion process” as I understand that process but I cannot swear to the fact that Mr A or Mr B does so use it – and that Mr C or Mr D uses your process to bring out his negative pictures on collodion though I know that it is done and I have seen Mr P and Mr Q do it. I presume you have to maintain your patent against some specific infringer or defendant and it is for you to prove by direct evidence that he has used your process. That proved your case is established. Affidavits of opinion as regards the collodion process seem to me to be altogether beside the subject.
Believe me Yours very try
JFW Herschel
H. F. Talbot Esqr &c &c
[rough draft in Herschel’s hand:]
My dear Sir
If you knew how I am beset you would not be surprised at my non-reply, or rather delay of reply to your note. – I had just written the words in an agenda for today “be sure & answer F.T.” when I took up your note of yesterday & its enclosed “Affidavit”.
In the first place let me ask whether making any affidavit at all about the matter involves appearing in Court – undergoing a Cross examination – and (as a necessary preparation) going de novo through a course of reading (not of new matter to get new opinions and new facts, but of things once quite familiar, now utterly gone glimmering through the mist of things that were – my own old notes (which I hardly know where to lay my hands on) and must make a journey into the country and a sojourn there of a week, which I have not [illegible] to root out and all the papers which I read & reflected on when I was actively engaged in photographic experiments – ) – in short going through a regular process of repairing the breaches that time and inattention (and something of failing memory) have made in that sort of armour of complete preparedness a man has to put on when he goes down to do battle in a law court.
As a simple act – I am quite prepared to make affidavit that I believe you to be the inventor of the Kalotype or Talbotype process – the educing a dormant picture by a stimulating wash, nominative Gallic acid (for I have nothing to say about pyrogallic) which I certainly never heard of till I read it in some of your papers (I cannot now say which – as I have not a book here to refer to) I should however see how it stands described in the specification of your patent referred to.
To your No 5 I am unable to make affidavit say anything. I have no belief in the matter one way or other. I suppose anybody who has made many endeavours at photographic delineations of real objects would try his hand at a portrait – I have an early one
(7.) (6.7.) As regards the Collodion process I really have not gone otherwise than very superficially into it, & there are probably 50 “Collodion processes”. There is no doubt that that collodion process which requires a wash of Gallic acid to bring out a dormant picture, employs pro tanto, your principle but I concieve the peculiar merit of the “Collod process” to consist in the exceeding thinness evenness firmness & perfect transparency of a film capable of being spread on glass and of receiving a picture – and that with it you cannot claim this invention which is quite as distinct a subject of patentization as most of the things for which patents are usually granted. there may be distinct patentizable points about it other than yours – and here comes what I conceive to be the point of the whole question
9. How people proceed now to take pictures from negative collodion I do not know from my
(8) It does not appear essential that in producing a positive prin on paper from a negative on glass collodionized your Kalotype process (the developement of an invisible image picture) should be resorted to – and as it is perfectly possible to obtain a positive picture on paper from a negative by other means on paper on glass by other means than those described by you (as I suppose) in your specifications I cannot make (as for instance by the destruction of vegetable colours) I cannot make affidavit to No 8 – (9) So of these I and in general with regard to the whole question –
(9) I consider that if you have patentized a process & that patent is established by proof of its being your fir sole invention then, any one who uses that process as part & parcel of any other without a licence infringes your patent.– But it is not matter of opinion or belief that he does so use it which can establish the infringement – you must prove by some direct evidence that your process has been used.– I can make affidavit to my belief that your process is very generally resorted to for obtaining negative pictures and that it makes a part of the collodion process as I understand that process but I cannot swear to the fact that Mr A or Mr B does so use it. And that Mr C or Mr D uses your process to bring out his negative pictures on collodion though I know that it is done and that I have seen Mr P and Mr Q do it.
I presume you have to defend maintain your Patent against some specific infringer or defendant – and it is for you to prove by direct evidence that he has used your process.
I had rather say nothing about the “the Collodion process”
That proved – your case is established – Affidavits of opinion as regards the collodion process seem to me to be altogether beside the subject.
I remain &c
JFWH
Harley St
May 19 1854
PS. Many thanks for the Pantheon on Steel. I read the inscription very well. Bye the bye what a bald affair the Dome (above the Columns) is and the flanking walls! What a noble photograph St Pauls from a window in one of the houses just now about to be pulled down beyond Cannon Street would make!!
It is certainly by a long chalk the finest building on Earth so seen.
H. F. Talbot
Notes:
1. London.
2. See Doc. No: 06962. This affidavit was intended for WHFT’s case against James Henderson, photographer, London.
3. afresh
4. Herschel often used the spelling of Kalotype, as opposed to WHFT's original Calotype. However, he just as often called this the Talbotype, in honour of the inventor's name and in parallel with the Daguerreotype.
5. This photographic engraving, a view of the Pantheon, labelled in Herschel’s hand “Talbots last steel engraved Photograph (self engraved) Pantheon Paris”, is fixed in an album next to Doc. No: 06784.