Scientific American, v 36 (ns) no 2, p 17, 13 January 1877
The Resignation of the Commissioner of Patents
Judge R.H. Duell has resigned the Commissionership of Patents, his resignation taking effect on January 1. He leaves the position through motives similar to those which have influenced many of his predecessors, namely, to engage in the private practice of patent law, having completed arrangements, it is said, where he connects himself with a law firm of this city. Judge Duell's administration has been marked by much ability; and in the last annual report of the Secretary of the Interior it is stated that, during the year which he has been in charge, the income of the Patent Office has been greater and the expenses less than any previous year in the history of the office.
Although Judge Duell explicitly states that he has had his present course in contemplation for several months, his resignation will be by many regarded as untimely, in view of the irregularities recently discovered among his subordinates. In some cases, false names appeared on the pay rolls, which were explained to be those of draughtswomen who objected to being known as government employees; and in others, drawings given out to be made as piece work were sublet by those to whom they were entrusted to other parties. This was irregular; but, it was stated, in no case did it involve loss to the government. The objectionable practices appear to have been promptly checked by an order from the Commissioner, on his attention being publicly called to them.
Among those persons suggested for the Commissionership, are those of Congressman Hoskins, of New York, Mr. W.H. Doolittle, and Mr. R.L.B. Clark, Chairman of the Appeal Board of the Patent Office. It is highly important that the person selected for this very responsible position shall possess considerable legal knowledge, and be well informed on matters pertaining to the present state of the arts and inventions, and also well versed in the practical workings of the Patent Office itself. These requirements, we think, would all be fulfilled by Mr. Clark, whom we have no doubt would make an excellent Commissioner. He is an old and experienced employee of the Patent Office, where he has attained high rank.
Since the above was in type, we learn that our old friend and former associate on the Scientific American, Salem H. Wales, Esq., is strongly advocated for the Commissionership. For more than one year Mr. Wales occupied the position of President of the Department of Parks, and subsequently and now for over three years has been the official head of the Department of Docks of this city. In discharging the difficult duties of both of these highly responsible positions, he has exhibited rare executive ability. In both he has been called upon to direct engineering work of magnitude, to govern the expenditure of large sums, to interpret laws, many intricate and perplexing, and yet involving interests, both public and private, of the highest importance. Through his extended experience in these varied and onerous requirements, he has acquired a breadth and class of knowledge which renders him exceptionally well fitted for filling the Commissionership in a manner acceptable to inventors and to the country at large.
The Cause of the Delay in Issuing the Patents
We are in receipt of numerous letters from inventors, inquiring the cause of the delay on the part of the patent office in forwarding their patents, and also calling out attention to the fact that notices of their inventions have not appeared in these columns. In reply to all, we would state that, for the last two months, the Patent Office has encountered considerable difficulty in having the photo-lithographic copies of the drawings prepared. The acting commissioner has issued a circular, which is forwarded to individual patentees, in which each is informed "that, on account of the imperfection of the photo-lithographic copy of the drawing which was to accompany the patent, the Office was compelled to return the drawing to the photo-lithographic company for reprint. As soon as a perfect drawing can be procured, the patent will be forwarded to your address."
As fast as we receive copies of the delayed patents, we shall prepare and publish the usual notices. The difficulty has now existed since October 31; and while a few patents of subsequent dates have reached us, the large majority have yet to come.
State Patent Laws
A bill now before the New York State Legislature, introduced by Mr. Lang and known as the patent right bill, is intended to protect the people of the interior of the State against the wiles of the swarms of patent right benders who perambulate the country, selling rights and taking promissory notes for bogus patents. It provides that the words "given for a patent right" shall be written or printed across the face of the note, and any person who shall take or sell a note without the above placed upon it shall be deemed guilty of a misdemeanor. The bill has been ordered to a third reading.
We suggest a slight amendment of this proposed law, to wit, strike out the words "patent right;" otherwise the law, if passed, would be void because in conflict with the Constitution of the United States.
The United States courts have more than once decided that no State has a right to legislate upon the subject of patents, nor to regulate, nor attempt to regulate, their sale. That power belongs alone to Congress.
In the case of M.J. Robinson, arrested by the local authorities of Indiana, 1870, for violation of the State law concerning the sale of patents, it was held by Judge Davis, of the United States Circuit Court, as follows:
"This is an attempt on the part of the Legislature to direct the manner in which patent rights shall be sold in the State, to prohibit their sale altogether, if these directions are not complied with, and to throw burdens on the owners of the species of property which Congress has not seen fit to impose upon them. I have not time to elaborate the subject, nor even to cite the authorities bearing on the question, and shall therefore content myself with stating the conclusion which I have reached.
It is clear that this kind of legislation is unauthorized. To Congress is given by the Constitution the power "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." This power has been exercised by Congress, who have directed the manner in which patents shall be obtained, how they shall be assigned and sold.
The property in inventions exists by virtue of the laws of Congress, and no State has a right to interfere with its employment, or annex condition to the great. If the patentee complies with the laws of Congress on the subject, he has a right to go into the open market anywhere within the United States, and sell his property. If this were not so, it is easy to see that a State could impose terms, which would result in a prohibition of the sale of this species of property within its borders, and in this way nullify the laws of Congress which regulate its transfer, and destroy the power conferred upon Congress by the Constitution. The law in question attempts to punish by fine and imprisonment a patentee for doing with his property what the National Legislature has authorized him to do, and is therefore void."
In the case of Anthony vs. Carroll, where a State law of Massachusetts was cited as a bar to a patent right suit, Judge Shepley held, 1875, as follows:
"The policy of the Government to provide a uniform system of rights and remedies throughout the United States upon the whole subject matter of patents for new and useful inventions and discoveries, by placing it under the control of Congress and the federal courts, would be frustrated if such State legislation could directly or indirectly limit, restrict, or take away the remedy."
Patent Matters in Washington, D.C.
To the Editor of the Scientific American:
From the report of the Commissioner of Patents, just issued, it appears that its surplus revenue for the past year amounts to over one hundred and five thousand dollars, and that there is nearly a million dollars in the United States Treasury to the credit of the Patent Office; and yet, notwithstanding that this enormous amount is lying idle, our pseudo-economists at the Capitol refuse to grant the Office sufficient of its own funds to carry on its business promptly. So much is the work behindhand in some of the departments that, as the Commissioner states in his report, some of the attorneys who require certified copies of papers have been obliged to employ their own clerks to do office copying, and then had to pay the full legal rate of ten cents per hundred words, the same as though the Office had done the work. This style of economizing, by making inventors pay two prices for their work, may be "reform" in the eyes of the average Democratic Congressman; but speaking for myself, as one of those who have had to pay twice, I would prefer to dispense with this style of "retrenchment and reform," and therefore ask you, Messrs. Editors, in behalf of the inventors of the United States, to so stir up our legislators that they will allow the Office sufficient of its own funds to do its work properly, and not delay the work of the inventor -- work that he has to pay for in advance -- and so prevent the discouragement and trouble which these delays always cause.
As the Patent Office has been doing a good business lately, there appears to be some attempt at rivalry at the Capitol, as the following list of applications for extension will show:
List of Applicants for Extension of Patents Now Before Congress
---- Reynolds, power loom brake
Strong and Ross, scales
Wm. and W.H. Lewis, photographic plates
T.A. Weston, differential pulley
S.S. Harshorn, buckles
H.A. Stone, making cheese
N. Whitehall, cultivator
J.R. Harrington, carpet lining
H.L. Emery, cotton gins
J. Stainthorp, moulding candles
Walter Hunt's heirs, paper collars
A.B. Wilson, sewing machines
S.A. Knox, plows
Rolllin White, firearms
Aikin A. Felthousen, sewing machines
H. Woodman, stripping cotton cards
L. Hall, heel trimmer
J.A. Conover, wood splitter
J. Dyson, carding engine
G. Wellmann, card strippers
E. Brady, safety valves
Jearum Atkins, harvester rakes
John Thomas, re-rolling railroad rails
Thomas Mitchell, hair brushes
Stephen Hull, harvesters
T.R. Crosby, wiring blind slats
G.W. Laban, mitre cutting machine
T.A. Whitenack, harvesters
J.J. Vinton, furnaces
A. Fuller, faucets
D. Baker, pitcher spouts and lids
G.F. Chandler, refining sugar
G.H. Nott, boiler furnace
William Hall, lightning rods
B.F. Rice, paper bag machines
S.D. Nelson, shovels
E.T. Russell, car springs
Hubbell and Conant, steam pumps
C.A. Chamberlain, shovels
C.A. Adams, locks
E.A. Leland, paint can
In addition to the above, I find the following names as applicants for extensions, but the inventions covered by the patents sought to be extended is not mentioned: S.S. Turner, Arculous Wyckoff, De Witt C. Cummings, Moses Marshall, J.W. Fowler, and Holloway & Graham. Many of the applicants have apparently given up their cases for this season, but they may be only lying back to its close in hopes that in the final rush their "little bills" may slip through easily.
Several bills tinkering at the patent laws are before Congress, and one of these (House Bill, No. 3,370) passed the House on the 30th ult. It has one section that may be made to work great harm to inventors, as it prevents infringers being sued for more than one year's damages previous to notice of infringement being given. By this bill, if it is allowed to become a law, a person will be able to build and use patented machines for years in some out of the way place where the inventor cannot easily find him; and should he be discovered, he can only be sued for one year's damages. There are other sections of this bill which will bear ventilating.
Another bill, introduced into the Senate by Mr. Paddock, provides that all appeals from the Board of Appeals shall be direct to the Supreme Court of the District of Columbia, instead of to the Commissioner as heretofore; and that the fees shall be the same as now paid to the latter official.
Mr. Sampson has introduced into the House a bill changing section 4886 so that it shall read as follows: "Sec 4886. Any person who has discovered any new or useful art, machine, manufacture or composition of matter, or any new or useful improvement thereof, not known nor used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his applications, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor: Provided, That the manufacture or composition of drugs as a medicine shall not be patentable." The change is the addition of the words in italics. ...
State Legislation Concerning Patents
To the Editor of the Scientific American
Apropos of your article in the Scientific American for February 17, in reference to State legislation tending to abridge the rights of patentees and owners of patents, I presume that the bill recently introduced in the New York Legislature is patterned after a law in this State (Pennsylvania), approved April 12, 1872, which enacts substantially as follows: That the words "given for a patent right" shall be prominently and legibly written or printed upon the face of any promissory note or other negotiable instrument, the consideration for which, either in whole or in part, shall consist in the right to make, use, or vend any patent invention or inventions claimed to be patented; and the party taking such note shall, as to any defense which the maker may or might have, stand in the shoes of the original payee or holder. The act proceeds still further, and makes it a misdemeanor, with a maximum penalty of $500 fine and sixty days' imprisonment, for any person to take, sell, or transfer a negotiable instrument not having the words "given for a patent right," as before mentioned, knowing the consideration thereof to be, wholly or partially, an interest or right in a patent or in an invention claimed to be patented.
In a case tried here some months ago, brought to recover on a note given for a patent, and not containing the statuable words, the judge charged that if the plaintiff knew, at the time he took the note, that the consideration was an interest in a patent, he committed a misdemeanor, and the note was, consequently, absolutely void. It has, however, been decided in a later case that a negotiable writing given for a patented thing or machine is not within the statute, as, the latter being a "very extraordinary" act, parties who invoke its aid must bring themselves strictly within its provisions, and the words of the act are a "right," etc., only.
When I first learned, a few days after its passage, of this law -- which might better have been entitled "an act to relieve certain fools from the legitimate consequences of their folly," or "a law trap for the unwary" -- I unhesitatingly expressed the opinion that it was in direct conflict with that provision of the Constitution wherein plenary power is granted to Congress to legislate upon patents. I have seen no reason to alter this opinion; and if the opportunity occur, professionally or otherwise, I shall seek to test the constitutionality of this absurd and impolitic State enactment in the court of final appellate jurisdiction, as provided by the Constitution of the United States.
Would it not be equally just and reasonable to require that notes given for horses, cattle, grain, etc., should bear across their face the words "given for a mule," or "given for a hog," as the case might be; or that an accommodation note (which, as between maker and payee, represents no value received) should have the words "given for accommodation" apparent on its face? It would not, assuredly, require superior astuteness or invention to discover a plan whereby anti-patent State legislators could, by an extended but similar interpretation of State rights, so legislate as to practically strangle, so to say, a valuable franchise granted by the whole United States.
501 Chestnut St., Philadelphia, Pa.
The Commissioner of Patents
General Ellis Spear, the new Commissioner of Patents, has entered upon the supervision of the Bureau; high subordinate positions in which, he has already ably filled. Either on the principles of civil service reform, whereby long experience in a lower grade is deemed one of the best qualifications for advancement, or through his personal fitness for the office, General Spear's appointment meets approval of the country, while it is also one upon which we think all inventors may be congratulated. An inefficient or poorly informed commissioner has it in his power to impede the efforts of inventors through lack of a proper appreciation of the importance of their work; and thereby he may, however innocently, act adversely to the interests of that great class, and ultimately to those of the public. For this reason, the office should never be regarded in the light of a political emolument, but rather as a high honor bestowed on the possessor of the rare qualifications which should be brought to it.
We are satisfied that the selection of General Spear for the post is in the above respects a wise one; and it is to be hoped that he will regard the position as a trust, to be administered for a longer period than some of his predecessors have found it to their personal interests to do.
State Legislation on Patents
To the Editor of the Scientific American
I notice in your issue on March 3 an article from Mr. J. Pusey, of Philadelphia, in reference to legislation by the States upon patents granted by the United States.
The bill introduced in New York appears to be similar to that passed by the Legislature of this State in 1871 ("Compiled Laws of Michigan," p 519) and one of the same character was held in Indiana (43 Ind 167, 13 Am Rep 395) to be unconstitutional, as interfering with the exclusive power of Congress to regulate patents. See also opinion of Davis, J., ex parte Robinson, 3 Ind. Stat. 365: "If the patentee complies with the law of Congress on the subject, he has a right to go into the open market anywhere within the United States, and sell his property." "The law in question attempts to punish, by fine and imprisonment, a patentee for doing with his property what the National Legislature has authorized him to do, and is, therefore, void."
See further upon this subject, Pendar v. Kelley, Supreme Ct. of Vermont, Am. Law Register, Sept. 1876, 511.
James B. Romeyn, Counsellor at Law
The Patent Office
The new Commissioner of Patents, having been called upon for a report of the condition of his department by the new Secretary of Interior, makes an elaborate statement in which important information and suggestions in regard to his bureau are given. General Spear informs the Secretary of many things which some of our readers know; but a few extracts from the somewhat lengthy letter will, we think, be read with interest.
"The force," states the Commissioner, referring to his department, "consists of two distinct classes, the examining and the clerical, with the usual auxiliaries of laborers and messengers.
"The examining corps consists of 22 principal examiners, each having a first, second, and third assistant; of an examiner of interferences, and an examiner of trade marks. Each principal examiner has charge of a class relating to some one or more kindred subjects matter. Each one of these principal examiners, with the aid of his assistants, examines all applications in his class as to patentability, and decides all questions relating thereto, both of law and fact. His favorable decision is practically final, and the patent issued upon his order. In case of his adverse decision, appeal may be taken to the Board of Examiners-in-Chief. This board consists of three equal members appointed by the President and confirmed by the Senate. Their legal duty is to hear appeals from the adverse decisions of the principal examiners and from the examiner of interferences, to review the decisions of those examiners, and they may affirm or reverse them. From their adverse decision appeal may be taken to the Commissioner in person, or to the Assistant Commissioner acting as Commissioner. * * *
"The duties of the examining corps are partly scientific and partly judicial. They require general intelligence, mechanical aptitude, scientific training, familiarity with the state of the art for each particular class, a knowledge of the law and the decisions of the courts relating to patent matters, a judicial turn of mind, willingness to hear arguments and receive information, and firmness to decide adversely to eager applicants. The examiner, in the performance of his duties, is required to make laborious researches in order to ascertain the novelty or the lack of novelty of applications submitted to him. In making the search, he acts the part of prosecuting attorney at the same time. When the search is completed, it is his duty to decide questions, nice and perplexing, as to differences between the process or machine sought to be patented and those already shown in references to his class. I need hardly add that this duty requires of the examiner an amount of patience, fairness, intelligence, and fidelity not often to be found. And, further, that on the one hand he shall be so sustained that he can act honestly and intelligently, without fear and without favor; and on the other hand, that he shall not be so sustained that he can in security act carelessly or unwisely."
According to the Commissioner's statement, some of the few "fossil" examiners have been removed, and others reduced in rank, which evinces his determination to improve the working force of the Office, which we fully commend. He states as follow:
"A few of the older examiners and assistant examiners were, in my judgment, incompetent for the positions they held, and some have been reduced in grade or discharged since I came into office. In respect to others, I propose to submit recommendations. Many of the older and most of the examining corps appointed since 1869 are able and faithful officers. With respect to them I have but few recommendations to make. In the performance of their difficult executive and judicial duties they need only the incentive that faithful official service will be appreciated. The standard of the examining corps may, and undeniably should be, raised. It is possible on the pay allowed by law (although that pay has not been enough to retain some of the best and most experienced men) as it now stands to elevate the standard of the corps in point of ability, but it is a work which needs to be done gradually. Some of the less able officers have acquired long experience, considerable knowledge of the business, and in some respects render better service than inexperienced though abler men. But they have long since reached their maximum, and their maximum is small. On the other hand, great care is required in the selection of new men."
The clerical force of the Office, which consists largely of ladies who have usually been appointed on personal solicitation, the Commissioner also proposes to sift out, and he will retain only such as are competent to perform the duties required of them. Referring to this force, says the Commissioner:
"Its efficiencies are not up to the standard required by the public interests, nor that which the salaries paid ought to command. The renovation of this force and the elevation of the character of it require time and patience. By carefully sifting out the incompetent and inattentive, I am confident that the Office may be benefited both by the addition of better elements and by better services from those who are retained.
"In respect to reductions, I am of the opinion that the examining corps should be kept up to the maximum allowed by law. The clerical force, I think, may be reduced, when improved in the manner heretofore indicated, and when the method of carrying on the clerical business is charged as I shall hereafter suggest."
The most important feature, to the greatest number of persons having dealings with the Patent Office, is the examination of applications and promptitude in decisions; and we hope to see the Commissioner more exacting than most of his predecessors have been, requiring the examiner in charge of each class to keep his work up so closely that not more than a fortnight shall intervene in any case, after the application is completed, before a decision is rendered. The long delay, in some instances before a decision is made by the examiner is annoying to the solicitor, discouraging to the inventor, and demoralizing to the examining corps itself; and we hope for a reformation in this respect.
"The method of conducting the receipt of applications, examination of cases, and issue of patents,: adds the Commissioner, "appears to have been carefully thought out at a very early period in the history of the Office. It works well, is as simple as is consistent with the proper safeguards and checks, and needs no change."
After some suggestions tending to facilitate the furnishing of copies of patents, assignments, and abstracts, and a recommendation of the competitive system of examination of applications for positions, the Commissioner closes his communication as follows:
"There is no need for going far outside the business of the Office to find matter for examination in order to test the fitness of applicants for appointments. I have found by an experience of nearly three years that an examination in matters pertaining to official business, or pertaining to matters intimately connected therewith, is all that is required, not only to test the knowledge of an applicant, but the quality of his mind and mental habits."
The Sewing Machine Monopoly
A correspondent of the Philadelphia Enquirer writes from Washington to that paper as follows: "A number of lobbyists representing an immense sewing machine combination interest, have made their appearance here. Their object is to procure, by some means not now apparent, a renewal or extension of patent upon the feed motion, which is vital property, and the basis of the Wheeler and Wilson, Howe, Singer, and other sewing machine combinations. The patent has already been extended and will expire on the 8th of May. It was the original intention of the great sewing machine pool to go to Congress and procure an act enabling the Patent Office to again extend the monopoly, but the excitement of the electoral count prevented them from putting this plan into operation.
"The agents of the pool now have, it is said, a very large sum of money at their command, and will thus be able to make a persuasive argument before the Patent Office people. Their case is in an awkward shape, and will expire by default on the day above indicated unless some action can be procured from the patent officials which will give the pool the color of a claim upon which to go to Congress when it sits. It is possible, however, that an application for a new patent covering the principle, in a slightly varied form, will afford means of escape from this dilemma, if adopted by the secret workers of the monopoly.
"The enormous benefits to accrue to the public in the event of the sewing machine pool failing to buy an extension will be seen when it is considered that the manufacturing cost of an ordinary $65 sewing machine is about $6.25, while an $85 machine from the Bridgeport shops costs in the frame, ready for shipment, something under $10. As things are now, a $65 machine is put to the local agent at $25, and the agent gets $40 for his time and labor in selling and instructing. An $85 machine costs the agent $35, and so on up to the fancy, full cabinet, pearl inlaid article, which costs the customer from $150 to $200. The same rule applies in about the same proportion to all machines in the combination.
"The breaking down of the monopoly which sustains these ruinous figures will enable any machine shop in the country with proper appliances to turn out sewing machines with the lock stitch and wheel or ratchet feed. Competition will thus bring down the price of machines to a legitimate figure, about one half the present rate. This, a patent official remarks, may result in curtailing the agency system to some extent, but he adds that it is a system which deserves curtailing on account of the pertinacity of competing agents in attempting to force their wares upon a forbearing public. The patent men are exhibiting pretty much the same forbearance toward sewing machine agents, and it is quite possible that the country may for a time be cheated out of the profits of which the law entitles it."
Patent Right Notes
A rather important decision was made in the United States District Court at Cincinnati, a few days ago, involving the standing of notes given for patent rights. Pennsylvania was, we believe, among the first States to enact a law requiring that such notes should bear upon their face the words "given for a patent right," further providing that notes so distinguished shall, in the hands of any third parties, remain subject to all the equities between the original parties. The same law was subsequently enacted in Ohio and other Western States for the purpose of stopping the frauds which have been from time to time committed by patent right dealers upon innocent and unsuspecting farmers. In the case heard before Judge Swing, at Cincinnati, the defendant offered to prove that he had been defrauded, and insisted that he was not bound to pay the note, and claimed that the present owner of the note, who bought it before due, was bound, under Ohio law, to permit such a defense to be made. Judge Swing, however, took a different view, and pronounced the Ohio law unconstitutional, saying in substance that the insertion of the words "given for a patent right" is no protection to the maker, and of no force whatever. He decided this upon the principle that such a law impaired the value of patent right property, a species of property created by the Constitution and laws of Congress, and as such entitled to all the protection given to any other property, and not properly the subject of individual discrimination. The Indiana courts have decided the same way.