The Calotype Patent Lawsuit of Talbot v. Laroche 1854

R. Derek Wood

Originally published with an added subtitle of ... ‘a contribution to the history of photography to welcome the opening of the Talbot Museum at Lacock’, privately published by R. D. Wood, Bromley, Kent, 1975  [ © ]

 

Introduction

Just before Christmas 1854 a lawsuit concerning an important photographic patent was heard for three days in the Guildhall of the City of London. The case, Talbot v. Laroche, was of immediate importance to professional photographers in England; for it spelt the end of an unhappy situation in which W. H. F. Talbot claimed that the professional use of the collodion technique infringed his calotype patent. The patent for the calotype process — the principal contribution by Talbot to the basic system of photography with which we are familiar today — had been sealed by Talbot in 1841 (Patent No. 8842), and was due to run the usual term of fourteen years until 1855. Although disliked throughout the 1840s the patent aroused the maximum ill–feeling after 1851 when F. S. Archer published a method of obtaining negatives on glass using collodion. Knowledge of the unpatented collodion technique quickly spread and photographers were poised at the edge of a new epoch. Poised, but not able to go fully ahead in England, because Talbot was claiming that the use of the new technique infringed his eleven–years old calotype patent. The difficult situation was eased to some extent late in 1852 when Talbot came under pressure from influential persons to relinquish his patent. A less self–centred man, less pre–occupied than Talbot in demanding recognition through his patents, would have gracefully allowed the patent to have lapsed earlier; under pressure Talbot responded by announcing in The Times of 13th August 1852 that he would not retain the patent right over amateurs. But he did still insist upon requiring professional portrait photographers to obtain a licence from him to practise the calotype process: this would have been reasonable except he still interpreted the patents rights as covering all methods (such as Archer’s technique of coating glass negatives with collodion) that resulted in a final print upon paper. Many professionals found it difficult to accept that an important new tool had been placed in their hands by Archer but that they could not use it unless an annual licence fee was paid — not to Archer — to Talbot. Even without discussing the justice for this view, it is readily understandable when Talbot v. Laroche ended the situation that the case immediately became a legend amongst contemporary photographers. The significance of the case today is that its legendary character entered the history of photography and became of considerable historiographic influence. The Talbot v. Laroche trial has been used as the dominant primary source for histories of the discovery of the latent image and development (as well as events concerning the calotype patent during the early 1850s); but, as an earlier paper ‘Gallic acid and Talbot’s calotype patent’ aimed to show, [1] this dominance has distorted the history.

An eleven–page report of the hearing that appeared in the Photographic Journal of 21 December 1854 has been the sole source of information available. But, this report, obviously prepared hastily from shorthand notes, was by no means reliable, and full of ambiguities. [2] Although it has been possible to find valuable legal records of two earlier cases brought by W. H. F. Talbot against two London photographers — againstRichard Colls [3] in January 1852 and James Henderson [4] in May 1854 — it is disappointing to report the lack of law court records of the action against Laroche.  However, discovery of the legal documents of the cases against Colls and Henderson [5] means the history of the agitation against the calotype patent need not now be dominated by the legends of Talbot v. Laroche and the need for detailed and reliable documents of the case less pressing. The hearing of Talbot v. Laroche in the Court of Common Pleas in December 1854 provided a dramatic event at the end of the life of the calotype patent and with it the sense of the ending of an era. It is the intention of this paper to provide a fresh look at the case, in particular through letters written by Talbot to William Grove.

Contemporary accounts and documents of Talbot v. Laroche are meagre: an historical account of the lawsuit and of Talbot’s attitudes cannot therefore be as simple and charming as, say, The Story of a Fierce Bad Rabbit by Beatrix Potter, but rather provides the interest of a detective story. The small number of contemporary published sources on the lawsuit have been listed elsewhere, [6] and include reports of the trial in the Photographic Journal of 21 December 1854 (although unreliable) and the Art Journal of February 1855 which provide fascinating reading.

Three groups of unpublished manuscript sources have been found. The Talbot Collection at Lacock Abbey, Wiltshire, contains a number of letters and statements referring to the lawsuit, including a description by a witness for Talbot of the technique used by Laroche at his studio and a list of forty–eight merchants and bankers nominated for the jury. However, these items at Lacock are disappointingly few and insubstantial. [7] Secondly, in the Fox Talbot Collection of the Royal Photographic Society, London, is a single item: a ‘copy opinion’ dated 29 August 1854 on the legal issues of the case by William Field, one of Talbot’s lawyers. Thirdly, in the archives of the Royal Institution is a group of letters from Talbot to another of his lawyers, William Grove, that provide a new view of Talbot v. Laroche.

Sir William R. Grove

When the Talbot v. Laroche trial began on Monday 18 December 1854, the first witness to be called was the plaintiff, W. H. F. Talbot. Friendly questions were put to him about his photographic work by one of his lawyers, Mr. Grove. But this was no ordinary lawyer; as one of the defence counsel remarked later, the plaintiff was represented by ‘one of the best chemists in Europe.’ In fact, Talbot’s lawyer was William Grove, F. R. S., one of the leading scientists in England at that time — as much a physicist as a chemist, who worked particularly on the subject of electricity.

William Grove [8] was born in Wales in 1811. He was educated at Brasenose College, Oxford, graduating B.A. in 1832. His career in Science began in the late 1830s when he designed a voltaic battery and described first to the annual meeting of the British Association for the Advancement of Science in 1839. The ‘Grove Battery’ became widely known and used, but it is now thought this achievement was surpassed by his entirely new concept of a ‘gaseous’ voltaic battery — a pioneer fuel cell [9] — on which he was concurrently working.  An older friend and co–enthusiast for research in electricity, John P. Gassiot (1797–1877), was of considerable influence and help in encouraging Grove to pursue a scientific career in the early 1840s when the conflict between the desire for research and the pressure to devote himself to the legal profession was at a height. [10] Elected FRS in 1840, Grove played a vigorous part in reform of the administration of the Royal Society [11] in the following years. At the same period Grove became Professor of Experimental Philosophy at the London Institution in the City of London. There he lectured throughout the 1840s, usually during the months of November and December, on a variety of scientific subjects. [12]  His most significant lectures were a course of six given in 1843 on ‘The correlation of Physical Forces’, concerning his early ideas of the conservation of energy. He published the subject as a book in 1846 which by 1874 achieved the sixth edition. [13]

But Grove followed two careers; as a scientist and as a lawyer in the courts of Common Law. He became a Barrister of Lincoln’s Inn in 1835, was made a Queen’s Counsel in 1853 and a Judge of the Court of Common Pleas in 1871. Grove’s knowledge of science made him an ideal choice as a lawyer in technical lawsuits and it seems likely that a large part of his legal practice lay in patent cases. He served as a lawyer for the defence in the case of Beard v Egerton that was important in the history of the daguerreotype patent in England in the courts from 1845 to 1849. [14]

Sir William Grove (he was knighted in 1872) married when he was twenty–five and had six children.

He took a considerable interest in photographic science during the 1840s. In 1841 he experimented (with some collaboration from J. P. Gassiot) at the London Institution with daguerreotype plates for photomechanical printing. A paper on this ‘voltaic process for etching daguerreotype plates’ was read at a meeting of the London Electrical Society on 17 August 1841 and the prints he displayed there ought to, he suggested, have been inscribed ‘drawn by Light and engraved by Electricity’.[15] Grove’s belief in the future influence of the new technology of Photography was expressed in a lecture he delivered at the London Institution on 19 January 1842:

It would be vain to attempt specifically to predict what may be the effect of Photography on future generations. A Process by which the most transient actions are rendered permanent, by which facts write their own annals in a language that can never be obsolete, forming documents which prove themselves, — must interweave itself not only with science but with history and legislature. [16]

It provided an example, concluded Grove, in which the researcher ‘not only gives to Man new physical knowledge, but works an indelible change in his moral destinies.’ He went to the annual meeting of the British Association for the Advancement of Science at York in 1844 and described experiments using nitric acid to obtain direct–positive calotype prints. [17] While at York he had his portrait taken by Robert Adamson and D. O. Hill:

William Grove at British Association 1844, portrait by Adamson and Hill

Figure 1.
William Grove (1811–1896).
Calotype portrait by Adamson
and Hill taken at York in 1844
at annual meeting of the
British Association for
the Advancement of Science
 
(By courtesy of the Scottish
National Portrait Gallery).



 

Adamson and Hill's Invitation to Grove at British Association meeting at York 1844

      Figure 2. Printed facsimile Circular inviting William Grove to sit for the calotype
      portrait shown in figure 1. The calotype patent did not extend to Scotland.  Only
      when Adamson and Hill visited England did they did need the permission of
      Talbot to use the technique.  Although present at the meeting Talbot does not
      seem to have sat for his portrait.   (By courtesy of the Royal Institution)


W. H. F. Talbot (1800–1877) was eleven years older than Grove and there is no reason to think they would have much opportunity to meet before, say, 1839. There was some contact between them in January 1843 when Grove lectured on electro–magnetic motors at the Royal Institution. But they may not have been on very much more that nodding terms — being members of the same scientific societies — by the time Grove read his paper on direct–positive calotype prints at the British Association in 1844. The earliest letters from Talbot to Grove are two dated 1843 and 1847, but photographic science is not mentioned; although Grove did correspond a little with other persons (for example, Robert Hunt and Sir John Herschel) on the subject. Ten letters have survived in the Royal Institution Collection that concern Talbot’s legal disputes and were written by Talbot to William Grove in the 1850s. [18]  But before we enter fully into Talbot’s lawsuits let us glance at another main character:

Martin Laroche

Little is known of Martin Laroche. With facts lacking on him he has even been described by an imaginative historian as a French Canadian. However, some basic information can be discovered. Laroche was his professional name.  He was really William Henry Silvester [1814–1886] born in Lambeth. [19a]  The exact year of birth is uncertain, but was between 1809 and 1819 [The author has since found that W. H. Silvester was born in 1814 [19a§]].  He started adult life as a jeweller and married a London girl, Angelique Samson, in the mid–1830s. At the time of the birth of his first child, Angelina, in April 1838 he was living at 15 Caroline Street, Bloomsbury, London. During the next few years he had children regularly and move regularly. His second child, William, was born at 13 Hyde Street, Bloomsbury; Emily on 9 May 1842 at 8 Ashby Street, Clerkenwell; Frank was born two years later, and by the time the youngest, Julia, was born on 9 May 1846 they had moved a few doors away to 12 Northampton Square, Clerkenwell. In 1846 W. H. Silvester was still a jeweller. But by 1851 he was in his daguerreotype studio at 65 Oxford Street, and was living on the premises with the family. At the time of the census in June 1851 he stated his age was thirty–six and his occupation ‘Daguerreotype artist’.

Laroche exhibited some daguerreotypes at the Great Exhibition in Hyde Park in 1851.  He was said [19b] to have taken daguerreotype portraits in the 1850s of Queen Victoria, and of the actor Charles Kean (as Macbeth etc.) and his wife at the Pincess’s theatre in London.  He also, it seems, photographed all the interior of Hampton Court Palace.  Although some of his photographs and daguerreotypes existed in Birmingham in 1889 their whereabouts now is not known. After his death a W. Thomas Horton (his son–in–law) speaking to the Birmingham Photographic Society, said that Laroche had been ‘an ardent worker in the laboratory of Scott Archer at the time he discovered collodion’.[19b]

 Laroche openly advertised in The Times during November 1853 that he took portraits ‘by the new process on paper.’  The words ‘new process’ meant that he was using the collodion technique.  Archer’s technique used glass negatives coated with sensitised collodion, exposed whilst still moist, and developed with pyrogallic acid.  The technique revolutionised photography;  but from the beginning problems arose because Talbot interpreted his patent as covering all photography that resulted in a print upon paper obtained from a developed negative.  It was the problem dealt with, eventually, by the lawsuit Talbot v. Laroche.

The Calotype Patent:  legal action

Legal action over Talbot’s calotype patent first came before the courts a few months after the Great Exhibition was held in London in 1851.  Talbot had been in dispute with the Commissioners of the Exhibition, [20] who to avoid trouble over the calotype patent had arranged for paper prints to be prepared in France by the English photographer Robert Bingham. Talbot obtained an injunction in January 1852 to restrain Richard Colls, a London art dealer who was associated with Robert Bingham (who, incidentally, William Grove must have known, as Bingham was a chemical assistant at the London Institution in the 1840s [21] ), from printing and selling calotypes. During the earliest attempts to form the (now Royal) Photographic Society late in 1851 and 1852 there was conflict with Talbot over the patent. Early in 1852 it became likely that some photographers amongst the group proposing the Photographic Society in London would openly ignore the calotype patent. They were prepared to contest any legal action brought against them as a test case. [22]  However, the crisis was reduced (although only superficially) when Talbot’s announcement appeared in The Times of 13 August 1852 that he would (in response to appeals by the Presidents of the Royal Society and the Royal Academy) waive his patent rights over amateurs, but would still control the use of the calotype patent for taking portraits for sale. After the publication early in 1851 of Archer’s wet–collodion process for negatives the trade in daguerreotype portraiture was being superseded by portraits on paper. Even though collodion negatives were being used by the professional photographers in 1852 Talbot insisted that this infringed his calotype patent. The licence to use the ‘calotype’ process that the professional portrait photographers in England were asked to obtain from Talbot commonly cost £100 for the first year and £150 each subsequent year. Photographers in London, including Laroche, were understandably dissatisfied with the situation and attempted to use the collodion technique without obtaining a calotype licence from Talbot. A number of London professionals were obviously warned by Talbot’s lawyers during 1853 not to continue this trade. Laroche by advertising in The Times in November 1853 demonstrated his determination to stand out against the warnings. In this month of November Talbot approached several people to provide him with support. He wrote, for example, to Sir John Herschel [23] and his earliest surviving letter on the subject to William Grove:


Athenaeum. Wednesday Evening.       
[c. November 1853]       

Dear Grove,

The correspondence is published in page 4 of the Times of August 13 /52. I have marked the page for you, and desired the waiter to keep the volume in readiness, in case you wish to look at it. I leave Town for some weeks on Friday. My address will be Great Bank, Keswick. The [patent] Specifications contain many matters which are irrelevant to the present question; I propose therefore to draw up some remarks and send them to you which may tend to elucidate the subject.

Yours truly,               
H. F. Talbot               

Action against Laroche

The first steps in the action at law against Laroche were taken in December 1853, but the proceedings were delayed because Talbot needed to disclaim parts of his patent. A few months later Talbot’s lawyers obtained proof that another photograph, James Henderson, was using the collodion technique to take portraits at his studio in Regent Street, London. A temporary injunction to restrain Henderson was granted in the Court of Chancery on 26 May 1854. A number of persons well known in London photographic circles gave support to Henderson in May and he decided to contest the injunction in a Court of Common Law. William Grove was obviously involved to some extent with the Henderson case. [24]

During the summer of that year of 1854 Talbot gave formal public notice in the London Gazette that he intended to apply to the Privy Council for a prolongation of the normal fourteen–years term of his calotype patent that was due to expire early the following year. Laroche wrote to the (Royal) Photographic Society about this application and an Extraordinary General meeting held there on 6 July 1854 voted to inform the Privy Council that the Society would deprecate any extension of the patent.  Laroche went further and entered a formal caveat [25] ready to oppose Talbot’s application. Laroche’s solicitor was Peter Fry, [26] an amateur photographer who did some of the earliest photography with the collodion process. Fry had played a considerable part in the formation of the (Royal) Photographic Society and the allied agitation against the calotype patent two years before.

Preparations for the Trial

By August 1854 written pleas were being exchanged by the contestants so that they could arrive, as they were required to do, at the legal issue of the lawsuits before being tried before a jury. At the beginning of November it was agreed to let the proceedings against Henderson stand over until the Laroche case was heard. Even though legal action had been recommenced against Laroche in May it was not until the last month of 1854 that it came to trial.

The following letter written by Talbot to William Grove early in December 1854 discusses an issue of the case concerning the main claim of the calotype patent of 1841: ‘the making visible photographic images upon paper ... by washing them with liquid’. [27] There was much pedantic dispute and confusion at the trial about the interpretation of the word ‘liquid’, [28] that referred, in fact, to the use of Talbot’s mixture of silver nitrate, acetic acid, and gallic acid as a developer.


Athenaeum [Club]. Saturday.       

Dear Grove,

With respect to the claim for the use of “liquids”. I have enquired of Mr. Henneman [Talbot’s old assistant and then his principal licencee in London] as a practical Photographer, whether he thinks that any person takes photographic portraits without developing the image by immersion in a liquid? He says no one does, for in practice it cannot be dispensed with.
I asked what liquids are practically employed: he says that in paper photographic portraits the object being to obtain in ye 1st place a negative image on glass, Gallonitrate of silver is the liquid generally employed, which is the one originally described by me, altho’ some persons prefer to use pyrogallic acid mixed with nitrate of silver. He thinks there can be no doubt of the employment of it by Laroche. [29]

The use of the salts of iron [as a developer] is chiefly confined to the production of positives on glass, or amphitypes as I call them. My receipt for making them in my last patent [of 1851] indicated sulphate of iron.

Yours truly, H. F. Talbot               

[P.S.] I have read your interesting remarks on the electricity of flame [published in the Philosophical Magazine of November 1854]

Not only Laroche used Pyrogallic acid; so did Henneman, who also used it not on calotype paper but on glass negatives coated with collodion !!  [30]   With regard to the discussion about developing in the last letter, it is interesting to recall remarks on the same subject back in 1851 by Robert Ellis in the Athenaeum: [31]

One of the claims in this gentleman’s [Talbot’s] patent is, for the development of pictures impressed in the camera by the application of liquids; and it is a sufficiently strong indication of the peculiar principles of the art of photography on paper, that this claim is the chief remaining guard over the patent

The inclusion of the use of ferrous sulphate as a developer in Talbot’s patent of 1851 had caused, not surprisingly, some controversy three years before. [32] The use of this developer was introduced by Robert Hunt in 1844, [33] and has indeed been widely used with wet–collodion in photo–mechanical work until very recent times.

A great deal of time during December 1854 was obviously spent by both sides preparing for the court action. Various technical experiments were carried out and photographs prepared, or found, ready for production as exhibits in court.  Talbot wrote a note to Grove about such matters the day before the trial began:


[Sunday]  Dec. 17. [1854]       

Dear Grove,

I have remedied the defect in the specimen which is executed conjointly on Iodised paper, & Collodionized paper, which you pointed out, caused by the overlapping of the 2 papers.  I dismounted them, cut of the overlapping part & then remounted them as before.  The image had not penetrated through the front of the paper to its back, therefore your objection (though properly taken) was removed on examination.

As to Mr. Reade’s claims, I believe that he will only produce one specimen done by him before the date of my patent, viz. the magnified image of a flea.  Indeed we expect that any other specimens produced by him will be recent ones, made for the purposes of the present trial.
We also think [Robert] Hunt has no specimen of his process [of using iodine to sensitise silvered paper] described in the [Philosophical] Transactions for 1840 and that anything shown by him will be quite recently made.

Yours truly,  H. F.Talbot               

P. S.   Mr. Bolton [Talbot’s solicitor] hopes you will object to the Defendant producing copies of my specification of my other patents, on the grounds that (not only are they nihil ad rem [not relevant]) but more particularly that the summons to produce the originals was only served on him at 4 o’clock Saturday evening (yesterday).

The Trial

Sir Frederick Thesiger, Talbot’s leading counsel, opened the trial [34] the following day of Monday 18 December with a long speech on the background to early photographic invention in England and Talbot’s part in this. He gave details of the calotype patent and why they believed that it was infringed by the use of the collodion process. Laroche, it seems had produced forty–two objections to the patent!
The first witness to be call in support of the case so put forward was Talbot himself.  It was William Grove’s job to examine him in detail on his early photographic work and on chemical questions relating to the calotype technique. After this friendly questioning by Grove — the aim being, of course, to establish Talbot’s case as strongly as possible — Talbot was cross–examined by Laroche’s representative. The first day was, in fact, devoted almost entirely to the plaintiff’s side of the case and at least ten persons in his support were examined. [35]

On the second day, Laroche’s side of the case was heard. Although Laroche was not called to give evidence, at least eleven chemists and photographers were examined on his side. [36]  Towards the end of the day Laroche’s leading counsel summed up the evidence for the defence.  This was followed by a reply (not completed before the day ended) by Sir Frederick Thesiger on behalf of Talbot.

On the third and last day of the trial, Wednesday 20 December 1854, a very long speech summing up the case to the jury was made by the judge, Justice Sir John Jervis. [37]  His task was unenviable. As he remarked, ‘I am sorry to say the case kept me awake all last night.’  He struggled to sum up the intricate and confusing statements about the various chemical processes that had been argued about. He aimed at ‘narrowing the evidence’; his duty he thought was ‘more difficult than that of reading the evidence and throwing it at the heads of the jury.’  It is indeed necessary here to emulate the judge in so narrowing the evidence. The detailed arguments of the case can perhaps have some fascination — and the judge’s speech makes amusing reading — but the legal arguments are also tedious.

Talbot was seeking damages (for a formal £5,000) from Laroche for alleged infringement of the calotype patent. Laroche’s defence took two lines. First, the validity of the patent itself was attacked.  This depended mainly on an attempt to show that the Rev. J. B. Reade, F.R.S., had used a similar technique two years before the patent was sealed. The argument was that not only had this technique been ‘published’ by being read out at a lecture in April 1839, but in addition Talbot had at the same period heard about Reade’s use of gallic acid through a mutual acquaintance, the optician Andrew Ross. A photomicrograph of the head of a flea taken by Reade was (as Talbot had believed before the trial) produced in court.

The second and main line of defence was that the collodion negative technique as used by Laroche could not be considered, as it was by Talbot, to be essentially the same as the calotype paper process. This resolved into two rather pedantic arguments about the similarities and dissimilarities of gallic acid and pyrogallic acid, and of the materials, paper and collodion. As we have just seen from Talbot’s note to Grove written the day before the trial began, he attempted to demonstrate that collodion could be used on glass or on paper. William Crookes [38] was one who gave evidence for Talbot on this point and it was he [39] who not only prepared the specimen referred to by Talbot but also produced it in court.

That fateful Wednesday afternoon the jury were nearly one hour making their decision. First they noted that Talbot was indeed ‘the first and true inventor of the calotype process ... the first person who disclosed it to the public.’ Second, the verdict at last — Laroche by using the collodion technique was not guilty of infringing that patent. ‘This announcement was greeted by an attempt to applaud by several persons in the court, but the interruption was suppressed by his Lordship threatening to commit anybody who should so offend.’

After the Trial

Talbot was naturally not happy about this verdict. He wrote to his wife immediately the trial ended that he feared fresh litigation would be necessary:

The jury understood little of the subject but trusted to the Judge and he fell into awful mistakes not being able to comprehend the process which he had never seen tried. It is impossible we can rest content with the summing up of the Judge. [40]

Talbot must surely have discussed the situation with Grove immediately after the verdict was given, but (it would seem) the very next day he was writing a note to Grove on an entirely different subject. He was thinking of carrying our experiments in electric flash photography similar to that which he had first done at the Royal Institution on 14 June 1851. [41]  Grove had been carrying out electrical experiments [42] not long before the Laroche trial and Talbot had some ideas about using the same apparatus that he thought might provide an exceptionally bright flash suitable for high speed photography:


Thursday Morning.       

Dear Grove,

To advert to more genial themes. I should like very much to see you experiment of the Ruhmkorff [induction] coil applied to the Leyden jar [condenser] and with your assistance to apply it to obtain some instantaneous picture as I did formerly.
A child spinning a tetotum  [42bis]  would make a pretty little picture, tho’ I am afraid it would be beyond present means of accomplishment. The tetotum alone taken spinning with the figures legible would be of itself sufficiently curious. It would require a camera of short focus, held pretty near the object.
Whatever be the object two points are essential. First that the electric spark be very bright.  Secondly, that no second spark shall follow the first immediately. There must be time enough to close the camera before a second spark occurs. Would there be any difficulty in realising these two conditions?

Yours truly,               
H. F. Talbot               

[P. S.] address Lacock Abbey Chippenham.

As we shall see (from a letter from Talbot dated 26 December), Grove must have replied within the next four days saying that it was not possible to obtain single separated electric flashes with the apparatus and no tests were carried out.

Talbot’s first thoughts on the new situation regarding the patent were set out in the following (unfortunately undated) letter to Grove:


Dear Grove,

It would of course require mature consideration what steps to take under present circumstances, but my impression at present is that I would rather abandon the present action and commerce a totally new one against another infringer [?James Henderson], and in order to make sure of having another judge I would bring it in another court. I think perhaps Jervis’s crotchets are too firmly fixed in his head to be eradicated. After a certain time of life some people get obstinate.
Knowing as we do the line of defence which would be adopted, for I don’t think any other would turn out more favourable to the Infringer, we could prepare abundant evidence, & having the advantage of having a new mind brought to the subject we might hope so to be able to place the thing clearly before him that he could not go wrong
Altho’ you think the novelty might again be legally disputed yet I think it would not, first because Reade is their only witness & he has probably had enough of it, next because they would be sure to fail on that issue & therefore have to pay costs on it. Therefore I think the inquiry would go at once to the Collodion process compared with the other & would not occupy more than one day or day & half.

It is not that I want to go on till I succeed, but until I once get the question fairly understood by a judge.

Yours truly,               
H. F. Talbot               

P. S.  I really think it would be wiser before litigating the matter any more to disclaim the bad claims by adding ‘in the manner hereinbefore described’. Carpmael [Talbot’s patent agent] says the Attorney General would allow ye disclaimer without any difficulty. But if he did not do so we should of course not litigate further.

At first sight it might seem surprising that Talbot was thinking of continuing legal action. However the trial had been a nisi prius hearing at which a jury was required to give its opinion solely on questions of fact. Judgement was not given on such cases until the decision of the jury was sent to the Court at Westminster. It was still possible therefore for Talbot to object and apply for a new trial. But it is difficult to see how he could pursue the matter against James Henderson if he abandoned the action against Laroche.

Longer life for the Patent?

The crucial decision to be made at Christmas time 1854 was whether it was to be really worthwhile to try to prolong the life of the patent. Talbot’s behaviour over the calotype patent during the previous few years could perhaps be justified by noting that he had an obligation to the photographers who had entered into contract with him. But this assertion loses considerable force when the question of prolonging the patent over the usual term of fourteen years is considered. The ending of then patent would have given him the opportunity of being released quite honourably from his duty to the licencees. Talbot’s application for an extension of the patent had first been place before the Privy Council on 3 July 1854 [43] and a few weeks before the Laroche trial a public announcement was made in the London Gazette [44] that his petition [45] was to be heard by the Judicial Committee of the Council on 10 January 1855.

After the Laroche hearing Talbot travelled from London on the evening of Thursday 21 December 1854 [40] to spend the Christmas at his home in Wiltshire. He wrote the following letter to Grove on Tuesday 26 December, six days after the trial had ended.


Lacock.  26 Dec. 1854       

Dear Grove,

Thanks for your Christmas good wishes. I am suffering from a severe cough & cold and have not had such an attack for 10 years or more, it has almost laid me up.
I return to Town on the 2nd January, notwithstanding this illness, as it is absolutely necessary to come to a determination respecting the application to the Privy Council for a prolongation. The hearing is fixed for the 10th January. If there is no prolongation there will be of course no object in further litigating the question. Can you make an appointment to see me at your chambers [at 4 Hare Court, The Temple, London] on the 3rd January?

Yours truly,               
H. F. Talbot               

P. S.  I am afraid from what you say the Ruhmkorff sparks will not do for me. Is there no mode of obtaining an intense single spark?
May I be permitted to exhibit the following experiment in Court, with Pyrogallic acid. Nothing can be more successful. It almost carries demonstration with it — viz. Take a piece of iodised paper, brush it over with nitrate of silver (which may be done in daylight slightly screened off). Expose this for ½ minute to daylight having put an object, e.g. a square piece of card on it. An invisible image forms — wash the paper with pyrogallic acid — The image appears — Throw it into a vessel of salt water & it is fixed. Repeat ye expt with gallic acid. The expt also answers admirably with protosulph. Iron.
Shall I make some Camera pictures developing ye image with Pyrogallic?

Obviously he was still prepared to continue the legal action but had reconsidered by the time the next letter to Grove was written. Talbot was back in London at the Athenaeum club on Thursday 4 January 1855, just six days before the Judicial Committee of the Privy Council were due of consider his case for an extension of the calotype patent:


Athenaeum.  Thursday.       

Dear Grove,

Both Thesiger and yourself being out of Town I have, to the best of my judgment, reviewed the circumstances of this affair, and with Mr. Bolton’s [Talbot’s solicitor] concurrence, have come to the conclusion, not to apply to the P. Council for a renewal of the patent

But we have taken no steps in the matter at present, as we shall see you in Town on Saturday morning [6 January].

Yours very truly,               
H. F.  Talbot               

Indeed no further steps were taken in the matter. The calotype patent did expire in February 1855. By the end of January it was known publicly [46] that Talbot had not persevered with his intention to renew the patent or to try to have set aside the verdict of the Jury at the Laroche trial.

Influence of the Trial

The unhappy situation of professional photographers in London in the early 1850s was now over. A legend had been created that entered the literature of photography. The emotional effect of the verdict of the Laroche trial is incalculable. But how wide was its influence? To what extent did the verdict contribute to any immediate increase in professional photography in England?

Six months after the court hearing of Talbot v. Laroche, Nicolas Henneman, who had a studio in Regent as Talbot’s representative since 1847, put forward a view of portrait photography in London that was very gloomy — or at least was gloomy from his position. Between 1854 and 1855 there had been, he complained, [47] an immense increase in competition in central London; it would seem that because of the Laroche verdict many studios using the collodion technique were being set up in 1855. There is no doubt (witness the figures in Kelly’s Post Office Directories of London for this period) that here was a great increase of professional photographers in London in the late 1850s, indeed their number doubled in a decade.

The influence of the Laroche trial in the history of photography has had two aspects.  The legend of the Rev. J. B. Reade as an early independent inventor of photography before 1839 owed much of its misguided stimulus to the influence of the trial and has been examined in earlier publications. [1], [2]   A second aspect, that the trial ‘freed photography from its shackles’ resulting in an immediate growth in photography, also needs re–examination. It must be borne in mind that the calotype patent after August 1852 was limited to professional portrait photography, and the whole of photography in England could not have been affected by the result of Talbot v. Laroche. However, the situation was hardly very satisfactory when Talbot demanded and was receiving applications from photographers all over the country asking if they could use the wet–collodion technique; to pay him, not Archer, for a ‘license to practise the collodion process’. [48 f]

Martin Laroche after 1854

Laroche had won his case; but the outcome was not perfect for him. His legal expenses were said to have been between £400 and £500. A fund was organised — the secretary was W. H. Thornthwaite of the photographic suppliers Horne & Thornthwaite, Newgate Street, London — but only £105 was said to have been collected by April 1855. [49]  Laroche in later years told John Werge [50] that J. E. Mayall, the fashionable London portrait photographer, gave him £100.

Laroche continued the studio at 65 Oxford street until 1861 or 1862 and soon after moved to Birmingham where he worked at the studio of R. W. Thrupp at 66 New Street (in the 1860s the photographic side of the business was run first by Sarony & Co., and then by Robert White). Nothing has been discovered of his life in Birmingham, but he died at 63 Hagley Street, Edgbaston, on 10 November 1886. Thrupp’s studio was that year, or the following, taken over by John Collier. Silvester/Laroche’s son, William Silvester (1840–1889), who lived for only three years after his father, was a photographer at Llandudno in north Wales.

Talbot after 1854

After deciding not to contest the verdict of the Laroche action and not to pursue the petition to extend the term of the calotype patent, Talbot was still not settled over his remaining patents. N. S. Maskelyne, who had given supporting evidence for Talbot at the trial, wrote to Talbot afterwards to say, ‘I hope you will now let your mind grow quiet on the subject’.[51] But it was not so to be. Immediately in January 1855 Talbot paid close attention to clarifying with his solicitors, and with William Carpmael his patent agent, the current positions of his third and fourth photographic patents of 1849 and 1851, for they still had many years to run. He determined, in particular, to insist on claiming patent rights over the invention of what he called the Amphitype that was part of patent No. 12,906 of 1849. This claim for the control of the use of direct–positives on glass, commonly known as the Ambrotype, is quite incredible, and serves yet again as an example of his ability to appropriate well known techniques. During the first few months of 1855 a watch was kept on photographers to see if they were using the Ambrotype direct–positive technique on collodion plates. Alfred Noble investigated for Talbot’s solicitors in February 1855 in London and complied a list of thirteen photographers who were using the technique. Of course they were! But Talbot contemplated legal action. [48c,f]

Talbot still in the Courts

But the unhappy situation regarding the calotype patent was still not over for Talbot in 1855.The action against James Henderson was still pending.  Early in 1855 it was agreed to drop the case, but Henderson’s solicitor pressed for compensation for his client, and did not agree with Talbot’s representatives that Henderson should bear any of the legal costs that he had incurred in 1854. A second stage of Talbot v. Henderson therefore began in the Court of Chancery in the summer of 1855. When it ended in March 1856 Talbot was required to pay damages of £150 to Henderson, as well as Henderson’s costs of £180.[4]

But even only one month after this judgement for Talbot to pay Henderson, Talbot was again looking towards the law courts. This time he was roused by a paper read by Paul Pretsch on his method of ‘Photo Galvanography’ at the Society of Arts in London on 23 April 1856.  Talbot, feeling that his own photomechanical patent of 1852 was threatened by Pretsch’s new patent, immediately consulted with William Carpmael [52] about the situation.53  In December 1856 Talbot wrote to William Grove that he was again thinking of taking legal action.  He felt sure that Paul Pretsch’s printing method in use by the Photogalvanographic Co. was in conflict with his own photomechanical patent.  It is not the intention here to elaborate upon this new episode only two years after Talbot v. Laroche, but from the following three letters from Talbot to Grove some insight can be obtained into the attitude of both men towards patents.


Athenaeum.  Wednesday, Dec. 17 [1856]       

Dear Grove,

I had not time to mention to you, when I met you accidentally on Tuesday evening, that some troublesome business had brought me to Town for a few days: in short, that I am again compelled to contemplate taking legal proceedings against certain persons who are infringing a patent belonging to me.
I have little doubt that on perusing this, your first impulse will be to advise me to abandon the patent in question, to whatever subject it may relate. I am aware of your strong opinions upon this subject, and they have had considerable weight with me in coming to a decision upon this question.
I was until lately the possessor of two patents, which have not been hitherto the subject of any legal proceedings whatever, and which have not been brought under your notice, although you are perhaps acquainted with one of them, viewed as a matter of Scientific discovery. When the time came for paying the fee to the government on these patents (at the end of the 3rd year) I resolved to abandon one of these patents and retain the other. This may be viewed as a compromise of opinion. I did not go entirely to the lengths you appear to advise, but I adopted your opinion to a great extent. The patent which I have retained relates to improvements in [photo–] Engraving. This invention cost me a good deal of time & trouble (but I do not complain of that, for that is generally the case with all inventions that are worth anything), and I took a patent for it in October 1852. When I had done so (it is the old story over again) other parties came forward resolved to profit by my invention;  and they have formed a Company & taken out a patent. Their specification is published and has been sent to me. It contains the chief part of my own invention, from which it is evidently borrowed. It takes about half of my patented process, and then conducts the rest of the engraving very differently.

I first consulted Carpmael about this matter who informed me without hesitation that it was a clear case of infringement. I then wrote a friendly letter of remonstrance to the patentee (knowing a little of him previously). He replied very civilly, but decidedly, that he felt sure he had a right to employ my invention, provided he did so for a different purpose. I am assured that such is not the law. Moreover, the purpose is substantially the same, viz. to procure beautiful engravings of complicated objects.
According to the best judgment we can form, the patent right is a valuable one. I trust therefore that you approve of my intention of vindicating my right to it. I will not trouble you further on the subject at present, as I shall have other opportunities.

Believe me to remain,       
Yours very truly,                
H. F. Talbot               



Thursday [nd]               
[?late Dec., 1856 to early Jan., 1857]       

Dear Grove,

Having a great deal of writing to do this evening before I leave town, I cannot accept you kind invitation to dinner.

In your letter you do not advert to the fact that the patent in question was taken by me long before either your advice to me or my own experience. The question is, whether having taken it I shall support it or not. It should seem that the answer to that question must depend on circumstances. Is it a scientific curiosity or an important new manufacture?
Upon these points you shall receive information.

Believe me, Yours very truly,                
H. F. Talbot               



4 Atholl Crescent, Edinburgh.       
January 16 [?1857]       

Dear Grove,

I am at present residing in Edinburgh.
All I can send you are some impressions taken from my engraved steel plates. These I sent by today’s post.
N. B. galvanism is not employed in my process. Of course however the gelatine image, being in basso rilievo, can be Electrotyped. Mr. Pretsch has done this.

Yours truly,               
H. F. Talbot               

Attitudes to Patent action:  Grove

No doubt Grove’s long experience of disputes over patents in the Courts of Law had made him cynical. He hardly seems to have encouraged Talbot to enter the Courts; indeed he had ‘strong opinions upon this subject.’ Grove had obtained personal experience of the inconveniences caused by the existence of the daguerreotype patent in the 1840s. When he wanted to start experiments on the etching of daguerreotype plates early in 1841 he had difficulty in obtaining these plates:

I ... applied in several quarters for Daguerreotypes; but thanks to the exclusiveness of M. Daguerre’s patent, I found that to procure a sufficient number for any reasonable chance of success was quite out of the question; and that, if I wished to pursue the subject, I must have been at the trouble and expense of working under the patent. Although for several reasons, this was to me extremely inconvenient, I had some thoughts of doing so. [15]

Somehow his friend J. P. Gassiot managed to obtain a large number of daguerreotype plates and together they carried out experiments on etching the exposed plates at the London Institution in 1841. This experience cannot have made him entirely indifferent towards the daguerreotype patent. In 1845 Richard Beard, the purchaser of the daguerreotype patent, brought a legal action for infringement against the photographer John Egerton who had a studio and shop at 1 Temple Street, not far from Grove’s chambers in the Temple. William Grove acted on Egerton’s side during the years the case was in the courts: it probably gave him some satisfaction to do so.

And Talbot?

How unfortunate all this is about the patents and legal actions in his life. His attitude towards patenting got out of hand. It became a selfish attitude and even a dishonest one. His decision in 1854 to seek an extension of the normal term of fourteen years for his calotype patent showed, in the circumstances of the previous few years, a lack of discernment. Perhaps it is easy to be trapped into feeling Talbot’s real researches are disfigured by his demand for recognition through his patents.  In the end his achievements in photographic science should not be obscured in this way; but what a pity that it is necessary to remind ourselves that it is so.

Talbot was pre–occupied with seeking recognition for precedence of discovery for his researches. It was a persistent (indeed tiresome) theme in his life and it is interesting that he received considerable encouragement in this unhappy direction from his mother.

We can end by recalling sadly Isaac Newton’s words [54] that are so appropriate to Talbot’s life:

Philosophy is such an impertinently litigious Lady that a man had as good be engaged in Law suits as have to do with her.

 

Acknowledgements

Fig. 1 appears by courtesy of the Scottish National Portrait Gallery. I am grateful to the Royal Institution of Great Britain for permission to publish the letters of W. H. F. Talbot to William Grove. This paper benefitted from the kindness of the archivist of the Royal Institution, the late Dr. G. A. Stollard.  Anthony Burnett–Brown of Lacock Abbey kindly provided an opportunity for me to search the Talbot Collection at Lacock.  Thanks are especially due to my wife, Alison [née J. Alison Black (1932–1985)], for her help and encouragement.

 

   [Footnotes]


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