Report of the Commissioner of Patents for the Year 1859
United States Patent Office
January 26, 1860
Sir: In compliance with the fourteenth section of the act entitled "An act in addition to the act to promote the progress of science and useful arts," approved March 3, 11837, I have the honor to submit the following report of the operations of this office during the year terminating the 31st of December, 1859.
William D. Bishop
No. 1 Number of applications for patents during the year 1859 6,225 Number of patents granted, including designs, reissues, and additional improvements 4,438 Number of caveats filed 1,097 Number of applications for extension of patents 41 Number of patents extended 32 Number of patents expired 31st December, 1859 563 Of the patents granted there were To citizens of the United States 4,491 To subjects of Great Britain 23 To subjects of the French empire 16 To subjects of other foreign governments 8 The patents issued to citizens of the United States were distributed among the several States, Territories, etc., as follows: New York 1,237 Pennsylvania 532 Massachusetts 492 Ohio 390 Connecticut 256 Illinois 206 Indiana 142 New Jersey 119 Maryland 116 Rhode Island 85 Wisconsin 71 Virginia 65 New Hampshire 65 Michigan 64 Vermont 63 Missouri 63 District of Columbia 58 Maine 51 Louisiana 51 California 43 Kentucky 41 Iowa 37 Tennessee 31 Texas 29 North Carolina 26 Alabama 26 Mississippi 25 South Carolina 15 Delaware 12 Arkansas 5 Minnesota 5 Florida 4 Oregon 1 Washington Territory 1 United States army 4 United States navy 2 _____ Total 4,491 ===== No. 2 Statement of money received at the Patent Office during the year 1859 Received on applications for patents, reissues, additional improvements, extensions, caveats, disclaimers, and appeals $228,864.00 Received for copies, and for recording assignments 17,078.15 __________ Total 245,942.15 ========== No. 3 Statement of expenditures from the patent fund during the year 1859 For salaries $93,242.36 temporary clerks 43,475.25 contingent expenses 41,561.48 payment to judges in appeal cases 875.00 refunding money paid into treasury by mistake 391.00 refunding money on withdrawals 30,733.32 __________ 210,278.41 ========== No. 4 Statement of the condition of the patent fund Amount to the credit of the patent fund 1st January, 1859 $50,241.88 Amount paid in during the year 245,942.15 __________ Total 296,184.03 Deduct the amount of expenditures during the year 210,278.41 __________ Which leaves in the treasury, 1st January, 1860, the sum of 85,905.62 ========== No. 5 Table exhibiting the business of the office for seventeen years ending December 31, 1859 Years Applications Caveats Patents Cash Cash Filed Filed Issued Received Expended 1837 435 $29,289.08 $33,506.98 1838 520 42,123.54 37,402.10 1839 425 37,260.00 34,543.51 1840 765 228 473 38,056.51 39,020.67 1841 847 312 495 40,413.01 52,666.87 1842 761 391 517 36,505.68 31,241.48 1843 819 315 531 35,315.81 30,766.96 1844 1,045 380 502 42,509.26 36,244.73 1845 1,246 452 502 51,076.14 39,395.65 1846 1,272 448 619 50,264.16 46,158.71 1847 1,531 553 572 63,111.19 41,878.35 1848 1,628 607 660 67,576.69 58,905.84 1849 1,955 595 1,070 80,752.78 77,716.44 1850 2,193 602 995 86,927.05 80,100.95 1851 2,258 760 869 95,738.61 86,916.93 1852 2,639 996 1,020 112,656.34 95,916.91 1853 2,673 901 958 121,527.45 132,869.83 1854 3,324 868 1,902 163,789.84 167,146.32 1855 4,435 906 2,024 216,459.35 179,540.33 1856 4,960 1,024 2,502 192,588.02 199,931.02 1857 4,771 1,010 2,910 196,132.01 211,582.09 1858 5,364 943 3,710 203,716.16 193,193.74 1859 6,225 1,097 4,538 245,942.15 210,278.41
The above statement of the transactions of the Patent Office during the year 1859 affords a gratifying indication of the advancement of our country in the arts of civilized life, and demonstrates the wisdom of Congress in enacting laws to protect the inventor in the enjoyment of the fruits of his labor. The patent laws of this country are based upon the idea that, if the inventor is afforded a reasonable protection for his invention, his energies and talents will be constantly exerted in devising something new and useful to the public.
These laws have answered, to a great extent, the purposes for which they were intended; but experience has proved that they are yet defective in many respects.
The necessity of further legislation, on the part of Congress, for the purpose of remedying these defects, has been urged by my predecessors for the last five years. Congress, however, has failed to afford the remedies so urgently desired. Notwithstanding this, I deem it my duty again to call its attention to this subject, in the hope that the still greater necessity which now exists for further legislation, and the important bearing which the patent laws now have upon all sections of the country, will prove sufficient to engage its immediate attention.
Under existing laws, no provision is made for securing the testimony of witnesses in contested cases pending before this office. As a natural consequence of this, cases are frequently decided involving thousands and even hundreds of thousands of dollars upon the testimony of merely voluntary witnesses. Many persons whose testimony is important in such cases, well knowing that there is no law by which they can be compelled to testify, either decline to appear as witnesses at all, or govern their action according to the amount of money which may be offered by the parties in interest. The result of this is, that in such cases the poor are completely in the power of the rich, the weak in the hands of the strong. This is not only repugnant to the great principle of equality upon which our government is based, but is at war with every principle of justice and equity.
There are many other alterations and amendments to the present patent laws required in order to adapt them to the wants and necessities of inventors and the public. These have been so frequently alluded to by my predecessors, in their annual reports, and so urgently recommended by them to the favorable consideration of Congress, that I deem it unnecessary to do anything more than to endorse the recommendation made by them.
The practice of the office, however, has suggested one or two additional features which have not heretofore been brought to the attention of Congress, but which deserve serious consideration at their hand. Under the eighth section of the act of July 4, 1836, the Commissioner is required, whenever an application is made for a patent which would interfere with any other application already pending, or with any unexpired patent already granted, to declare an interference between the parties in order to establish the question of priority of invention. It has been held by the judges on appeal, and is now held by this office, that he is the first and original inventor, within the meaning of the patent law, who first conceived the idea of the invention and first gave such an expression to that idea, either verbally or in any other manner as would enable any person skilled in the art to which such invention appertains, to construct therefrom a working model or machine.
Scarcely a patent is granted which proves profitable to the inventor and important to the public but that, under this section of the law, is brought into interference with subsequent applications. Thus, not only the first patentee, but all those who have purchased rights under him, on the strength of letters patent issued by the Untied States, are liable to be deprived of their property upon the testimony of witnesses that a subsequent applicant for a patent for the same invention had conceived and explained to others the same idea previous to the date of the invention of the patentee. The ease with which testimony of this kind can be obtained, and the liability on the part of witnesses to be mistaken in regard to the extent and details of an invention explained to them many years before, renders property in patents extremely precarious and uncertain. An honest and bona fide inventor, who has expended years of labor and large amounts of money in perfecting and patenting an invention and creating a market for it, is liable to be deprived of his property by a person who can find witnesses to swear that he conceived and described the same invention prior to the invention of the patentee. There is no species of property in this country subject to the same hazards and uncertainty as property in patents, subject as it is to the above-named contingencies. Neither are there any cases in which false testimony can be presented with as little liability to detection as in the trial of interferences to establish priority of invention. The error in the law, as it now stands, consists in awarding priority to the person who first conceived and described the invention, and in giving no consideration to the bona fide inventor who first reduced his invention to practice, or first notifies the office of his invention either by caveat or by an application for a patent. As, between two independent inventors, he certainly is entitled to the most credit, and best deserves the reward, who first reduces his invention to a practical shape and firsts gives the public the opportunity to use it. One man may conceive an invention, and yet require years before he may be able to reduce it to practice. In the meantime, another, conceiving the same invention, may reduce it to practice and present it to the public as a perfect working machine, secured by letters patent of the United States, before the first inventor has even commenced a drawing or written description of the same. Still, in this case, the first but tardy inventor, by the aid of the very working machine of his more diligent rival, may finally succeed in reducing his invention to practice, and then obtaining a patent for the same device, and thus render the well-earned property of the other perfectly worthless. In order to remedy this defect in the law, I would recommend that, in interference cases, he shall be deemed the first and original inventor who, previous to the application of either party for a patent, first filed a caveat in the Patent Office describing his invention, and in case no caveat is so filed, he who first presented to the office and completed his application for a patent shall be entitled to the patent, unless it shall appear from the testimony submitted that the person first filing such caveat, or first making such application, was not an original and bona fide inventor of the device for which he seeks a patent. Such an amendment to the present law would work no hardship to an honest inventor, and would prove an effectual bar to a vast amount of perjury, while it would render the rights of patentees and of the public more secure. In addition to this, it would very materially reduce the number of contested cases before the Patent Office as well as before the courts.
I believe this recommendation will be sanctioned by most men of standing and respectability who have been accustomed to the investigation and trial of patent cases. At the same time, it is not at all improbable that a certain class of patent agents, who seek to make profit by aiding dishonest men in annoying and robbing honest inventors of their just rights rather than by an honorable practice of their profession, may endeavor to defeat any amendment of the law which will diminish litigation, fraud, perjury, and corruption. It is a matter of regret that the present law affords so many facilities for the dishonest practices of such men, by whom innocent inventors are continually plundered. The business of the Patent Office is rapidly increasing from year to year, as is evinced by the fact that the number of applications for patents during the year 1859 was nearly sixty per cent more than during the year 1855. Notwithstanding this, the number of principal and first-assistant examiners remains the same. To these gentlemen is entrusted the examination of all applications for patents, in order to determine their novelty and patentability. The labor of performing this duty on every application for a patent must necessarily increase in proportion to the number of applications for similar inventions previously made. Hence, it follows that the labor and time necessary to investigate thoroughly the novelty and patentability of an invention increases from year to year. Unless, therefore, authority is given by law for the increase of the number of these officers, in proportion to the increase of the number of applications for patents, one of two evils must necessarily occur: either hasty and imperfect examinations, or great delay to the business. The former results in continual and almost endless litigation, while the latter would soon become so annoying and troublesome to inventors as to prevent them from seeking to obtain patents at all.
Rather than suffer the business of the office to become seriously delayed we have been compelled to grant patents upon hasty examinations. As a natural consequence, many things have been patented which ought to have been rejected. This difficulty must continue to exist unless Congress confers upon the Commissioner authority to add to the force of examiners from time to time, as the necessities of the business require. As the inventors of the country pay for all the expenses of these examinations, it is no more than just to them that their business should be transacted properly and with dispatch. I would therefore recommend that such authority be conferred upon the Commissioner, subject, however, to the provision that the annual expense of the office shall in no case exceed the annual receipts. For some time past, three of the principal examiners have been withdrawn from their appropriate duties, and have been entirely occupied in the examination of appeals from the decisions of the examiners in rejected applications for patents. In the meantime, their duties have been performed by first assistant examiners. Under these circumstances, it is no more than right that such first assistant examiners should be allowed the salaries of principal examiners for the time that they have performed their duties. They have performed the duties assigned to them with credit and fidelity, and I earnestly recommend that they be allowed the salaries as suggested.
For several years in succession Congress has been appealed to by the Patent Office, by the public, and by the inventors of the country, to revise and amend our patent laws. These inventors are an intelligent, deserving, influential, and important portion of our citizens, whose just demands and urgent necessities should no longer be disregarded.
For these reasons it is to be hoped that Congress will no longer delay taking such action upon this subject as will fully meet the wants and necessities of the country.
The fourth section of the act of Congress approved March 3, 1859, and entitled "An act making appropriations for the legislative, executive, and judicial expenses of the government for the year ending the thirtieth of June, 1860," provided "that the Secretary of the Interior be and he is hereby directed to cause the Annual Report of the Commissioner of Patents on Mechanics hereafter made to the Senate and the House of Representatives, to be prepared and submitted in such manner as that the plates and drawings necessary to illustrate each subject shall be inserted so as to comprise the entire report in one volume not to exceed eight hundred pages."
The fourteenth section of the act of Congress approved March 3d, 1837, entitled "An act in addition to an act to promote the progress of science and useful arts," requires the Commissioner to report annually to Congress, in the month of January, a list of all patents granted during the preceding year, designating under proper heads the subject of such patents, and furnishing an alphabetical list of the patentees, with their places of residence. Also, a list of all patents which shall have become public property during the same period, together with such other information of the state and condition of the Patent Office as may be useful to Congress and the public.
It will be observed from the foregoing provisions of law, that the Commissioner is required to report annually to Congress:
1st. A list of all patents granted during the year preceding, and an alphabetical list of the patentees with their places of residence.
2d. A list of all patents which shall have expired during the preceding year.
3d. Plates and drawings to illustrate each subject.
4th. Such other information of the state and condition of the Patent Office as may be useful to Congress and the public.
Every effort has been made to limit the size of this mechanical report, so that it might be embraced within 800 pages, as required by law; but this is found to be a physical impossibility.
The list of patents expired and granted during the year 1858, will occupy about 260 pages of the printed report. The drawings or plates necessary to illustrate each subject will require about 340 pages, while the claims and descriptions necessary to explain the drawings, and without which the report would be utterly worthless, will require about 1,200 pages more. This information, which is required by law to be reported, cannot, therefore, be published in less than 1,800 pages. We have thus been reluctantly compelled to present a report exceeding the limit prescribed by the last Congress by 1,000 pages, and have no doubt but that Congress, in view of these facts, will so modify the law that future embarrassments of this kind may not arise. Nothing is embraced in this report but such information as is believed to be absolutely necessary to enable Congress and the public to understand the conditions of the Patent Office and the character of the inventions which have been patented during the last year, while even this is condensed into the smallest space that the nature of the case will admit of.
The act of Congress approved February 5, 1859, entitled "An act providing for keeping and distributing all public documents," authorized and directed a transfer of all matters pertaining to copyrights, from the State Department to the Department of the Interior. The Secretary of the Interior has been properly placed this matter under the immediate supervision of the Commissioner of Patent. It therefore becomes my duty to call the attention of Congress to this subject.
The object of the copyright law is to protect authors in the exclusive ownership and control of their own literary productions, in a similar manner in which inventors of mechanical improvements are protected in the exclusive enjoyment of their own new and original inventions. The law now requires a person who may desire to secure the benefit of a copyright, to make his application to a clerk of the district court of the United States for the district in which the applicant resides. The clerk of said court is directed to keep a record of all such applications, and to transmit at least once in each year to this office a certified list of the said records, and all copies of books or other works deposited in his office in accordance with the provisions of the copyright law. The copies of records and books, etc., thus received are to be preserved in this office. The only fee paid by the person to whom a copyright is granted is a fee of fifty cents to the clerk of the district court, no provision being made by which the necessary expense incurred by this office in taking charge of and preserving the records and books are to be paid by those for whose benefit this law was established. I see no good reason why authors should not be required to pay the expenses incurred in transacting their business before this office. Neither can I discover any good and sufficient reason why applications for the benefit of the copyright act should not be made direct to this office, instead of being made to the clerks of the United States courts. It is found to be impossible to conduct the business with uniformity and accuracy under the present system. This evil must necessarily continue to exist as long as the execution of the law is committed to the hands of so many different persons in various sections of the country. The law should, therefore, be amended in such a manner as to remedy this objection. The amount of fees to be paid by those who desire to avail themselves of the benefit of the copyright law should also be sufficient to meet the necessary expenses of the office in attending to that particular branch of the public business.
William D. Bishop
Hon. John C. Breckinridge
Vice President of the United States