Scientific American, v 42 (ns) no 3, p 32, 17 January 1880
Patent Legislation in Congress
Last winter the enemies of inventors and patentees achieved a signal defeat in a general attack upon the patent system. Profiting by that experience, which taught them the futility of attempting by direct assault the destruction of a system so firmly grounded in popular esteem, they have scattered their forces this year for a sort of guerrilla warfare, apparently hoping to do indirectly, under the guise of protection to oppressed grangers and the like, the work they failed to do a year ago.
We have before us four bills which prettily illustrate the spirit and the method of the guerrilla system. They have been introduced in the House of Representatives by Mr. Baker and Mr. Colerick, of Indiana, and Mr. Converse, of Ohio, and are numbered respectively 2,631, 2,633, 2,913, and 3,049.
Of these Mr. Baker is sponsor for two. The first is designed to regulate the costs of suit in actions to recover damages for the infringement of patents; and provides that in cases where it shall appear that the defendant purchased in good faith and without actual knowledge of infringement, and applied the article to and for his own use and not for sale or for manufacturing a product for sale, if the plaintiff shall not recover a judgment in damages of twenty dollars or over, the court shall adjudge that he pay all the costs of suit, including a reasonable attorney's fee to the defendant; and if the plaintiff shall not recover a judgment in damages of fifty dollars, or over, the court shall adjudge that he pay all the costs of suit.
The propriety of thus punishing the patentee for defending his property rights will be apparent to all who desire to appropriate his property to their own use. The justice of such discrimination in favor of offenders against patent rights solely, however, may be fairly disputed by all the other classes of thieves and plunderers and receivers of stolen property.
Properly named, the bill would be entitled "a bill to facilitate the infringement of patent rights, and to encourage patent litigation." Since a very large portion of all patented articles and processes are intended for individual use, and not for the manufacture of articles for sale, and since damages for individual misappropriation in such cases are apt to be small, the infringer has everything to gain and nothing to lose is standing suit, while the inventor is bound to sue or practically abandon his rights.
But the advantage thus aimed at is not enough to suit Mr. Baker or his employers. Accordingly he hands in another bill to limit the liability of purchasers to actions for damages in cases of infringements. This bill is short enough to quote entire. It provides "that no suit shall be brought or maintained in any court having jurisdiction in patent cases for any alleged infringement of any patented article, device, process, invention, or discovery, where it shall appear that the defendant, or any person through or from whom he derives title thereto, purchased the same in good faith from the manufacturer thereof, or from any person or firm engaged in the open sale or practical application thereof, and applied the same to and for his own use, and not for sale, nor for manufacturing a product for sale."
Mr. Colerick's bill aims at the same point, and provides that purchase in good faith without knowledge that the purchased article was an infringement of any patent shall be a complete defense against action for damages.
In their best aspect these bills are an attempt to make the United States Courts a sort of patent buffer to guard the purchasers of illegal articles, or articles to which the seller has no title, from the natural and proper consequence of their ignorance and folly. The propriety of thus discriminating in favor of one phase of business imbecility and against one particular class of property owners is as little apparent as is the need of it. The proper way for the complaining farmers to protect themselves against patent swindlers is to buy patent rights, and alleged patented articles as they do horses and lands and other property, only after making sure that the seller's title is good. If they will take the risk of buying blindly let them abide the issue manfully, and not call upon Congress to throw the consequences of their folly upon the shoulders of rightful owners who have no part in the fraudulent sale.
But these bills present a much less tolerable aspect. Ostensibly they are put forth to meet a special class of cases in which innocent farmers are said to be the victims of patent sharps. Really, we believe, they are intended to break down the defenses by which inventors are now enabled to guard their constitutional rights under the patent laws; and in case they are passed they certainly will have the effect to destroy absolutely and utterly the value of a large class of patent rights.
For example: A, in Maine, invents and patents a device calculated to lessen the cost or increase the safety of railway construction or operation. The foreman of a railway company's shops in Indiana offers the invention as his own to the company which employs him. They buy it and use it. In course of time the inventor hears of the infringement and brings suit. After such delays and multiplications of court expenses, as powerful corporations are so well able to effect, the case comes to trial and the defendants raise the plea that the purchase was made in good faith, for their own use, and not for sale or for manufacturing an article for sale. The defense is complete; the plaintiff gets no damages, and besides suffering the loss incident to the invasion of his rights he has to pay all the costs of the suit and a "reasonable fee to the railway company's attorney. An admirable issue, truly, for a patent law designed for the advancement of the useful arts by the encouragement of inventors.
But Messrs. Baker and Colerick are mere bushwhackers compared with Mr. Converse. The latter gentleman enters the lines of the patent defenders, ostensibly in friendship and quietly drops a match into the magazine, hoping thereby to blow up the entire system. In this way:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be unlawful for any owner, or part owner, or assignee of the whole or any part of any patent granted or pending under the laws of the United States to charge or receive as royalty on such invention or discovery more than an amount equal to the cost of production, and twenty-five per centum to be added thereto for profits of manufacture in addition to such coast, and twenty-five per centum profit. Whenever the invention or discovery or the article patented, or when patented is applied for, is used for hire instead of being sold, it shall be unlawful to charge or receive for such use more than the royalty, cost, and profit of manufacture aforesaid. Every owner or part owner, by assignment or otherwise, of any patent heretofore or which may hereafter be granted, or for which application is pending under the laws of the United States, shall forfeit to the public all right to said discovery or invention."
That is all; and it is certainly quite enough. At first sight it may seem as though some specific offense should have been named in the final clause. But that is not at all necessary. The act of applying for a patent for an invention is offense enough, in the eyes of men like Mr. Converse and his anti-patent associates, to justify the forfeiture of all right to the invention; and Mr. Converse is to be commended for frankly and boldly stating precisely what the would-be patent law amenders are driving at.
Two More Patent Bills
Two bills to amend the patent laws were introduced in the House of Representatives, December 18, and numbered respectively 3,039 and 3,041.
The first, by Mr. Vance, of North Carolina, provides that any one of the joint owners of a patent for an invention may grant a license to use the invention, but not exclusively, except under the following conditions: (1) When the conveyance or other instrument creating the joint ownership (recorded in the Patent Office before the execution of the license) provides that no license shall be valid unless executed by all the owners, or a specified portion of them in number or interest; or (2) when the joint owners have previously made an agreement limiting the power of the individual owners to grant licenses, and have had the agreement recorded in the Patent Office. The bill further provides for the recording of such powers of attorney, agreements, and the like in the Patent Office, and the use of certified copies of such papers in evidence, as is now done in the case of records of assignments. So far as appears the proposed amendment seems likely to be beneficial.
Not so much can be said of the bill introduced by Mr. Young (H.R. 3,041). Hitherto the American patent laws have wisely regarded inventors as the only parties entitled to the protection guaranteed by letters patent. Mr. Young proposes to extend the protection to those who introduce inventions from foreign countries; but (apparently) only under the curious condition that the art or process to be patented shall have been "used or practiced, unpatented, for the period of fifty years last past exclusively in the country where obtained.
Possibly this is the very thin end of a wedge designed to open our Patent Office to the class of operators known in Europe as "patent sharks," who watch the records of the patent offices of other countries for promising inventions which they immediately proceed to patent as introducers -- a sort of industrial piracy which has not been and we trust never will be encouraged in this country.
It is more probable, however, that the parties for whom Mr. Young is working are interested in some art established in a country where patents are not granted -- an art which they wish to introduce or monopolize here, or, what is quite as likely, one which they wish to keep from being practiced among us. Under such a law as he proposes any distinctively Asiatic, African, Swiss, Turkish, or South American art, and a wide range of arts which have been practiced too long in either of the several countries of Europe which issue patents to have ever been brought under the action of the patent laws, could be patented here, either to work or to suppress. The propriety of granting such great privileges for nothing, or worse than nothing, is not obvious, to say nothing of the probable lack of constitutional authority for such a departure from the principle on which our patent laws are based.
The Past Year's Work in the Patent Office
For the first time the years work of the Patent Office shows a falling off, due undoubtedly to the attempt in Congress last winter to change the law to the injury of inventors. The determination expressed by inventors at the time to withhold applications for patents until assured that their rights would not be laid open to invasion by so doing, thus shows itself. The larger decrease in the number of patents issued may be due in part to the diminished means of the office through the reduction of the appropriations, which reduction, the Commissioner says, has been carried so far as to seriously cripple the office and injure the public interests. The completion and wide distribution of photolithographic copies of the drawings of American patents granted prior to November 20, 1866, and the distribution of English patents for reference in the Examiners' rooms, have aided to a considerable extent the Commissioner thinks, in reducing the number of patents issued.
The statistics of the office for the year ending June 30, 1879, are as follows:
The number of applications for patents was 19,300, being 357 less than the previous year. The number for design patents was 697; for reissue, 639; for registration of trade marks, 1,465; for registration of labels, 631; caveats filed, 2,674.
The number of patents granted, including reissues and designs, was 12,471, being 1,629 less than the previous year. The number of trade marks was 1,144; labels registered, 403; patents withheld for non-payment of final fee, 828.
The total receipts of the office were $703,146.79, being $31,741.19 less than those of the previous year.
The expenditures for the year were $548,631.47. This includes $5,000 appropriated for the repair of models. Excluding the amount appropriated for the repair of damaged models in both years, the current expenditures of the office were $72,254.55 less than those of the previous year. The excess of receipts over expenditures was $154.495.32.
This excess the Commissioner pronounces an unjust tax upon inventors, and favors its reduction either by exacting lower fees or by expending the surplus in improving the facilities for transacting the business of the office. He recommends the latter course. He calls attention to the inadequacy of the rooms provided for the use of the office, and, after insisting that the office needs and ought to have exclusive possession of the entire building, excepting the rooms of the Secretary of the Interior, he recommends that temporary accommodations be provided in that portion of the building now being reconstructed.
The Commissioner further asserts that the interest of the service demands an additional force of clerks and examiners, and to this end he recommends that provision be made by law for ten additional clerks of class one, three of class two, two of class three, one of class four, and fifteen assistant examiners. He suggests also that a portion of the surplus revenues of the office be used annually for the purpose of making additions to the technical library of the office, and for increasing the compensation of the clerks and employees, who, while forced to remain in the lower grade because of inadequate appropriations, are showing efficiency entitling them to higher pay.
Touching the present system of requiring and preserving models the Commissioner makes the pertinent remark that it cannot be permanent, and steps toward a change ought to be taken at once. At the present rate of accumulation there will be more than two million models to house before our second Centennial year, requiring fifty halls as spacious as those now used for storing models. In a few more centuries the entire Federal District would be inadequate to the storage of these evidences of American inventiveness. At the present time models are actually used in the examination of about 50 per cent of the cases in which models are filed. With proper scale drawings from working machines by far the larger part of the models now used might be dispensed with. The Commissioner, therefore, recommends as a first step toward getting rid of models that the following statutory provisions be enacted:
1. That no model shall be required or filed in any case, unless upon a written certificate filed in the case by the examiner in charge of the division to which the invention pertains that it will be useful in the examination of the application, or upon the special order of the Commissioner.
2. That the Commissioner shall not require the production of a model for the examination in any case in which the applicant shall furnish satisfactory scale drawings, made from a working machine, and shall produce for examination a working machine in operation in the city of Washington.
3. That upon the expiration of every patent the model pertaining thereto shall be sent by the Commissioner to one of the public institutions of science and art in the United States.
The only exception that can be taken to the recommendations is, perhaps, in connection with the third. The final disposition of the model might properly be left to the option of the inventor.
To obviate the risk of accidental or fraudulent alteration of models in the manufacture of copies of models for official certification, the Commissioner recommends the enactment of a law authorizing the employment for this purpose of skilled workmen, who shall take the oath of office and give bonds for the faithful performance of their duty.
The Commissioner further recommends that a law be passed authorizing the execution by United States commissioners, or other United States officers, of commissions issued by foreign governments to take testimony in the United States to be used before foreign patent offices and before all judicial, legislative, and executive departments of foreign governments, and to punish perjury committed in such testimony; the law to be operative only in favor of such governments as shall make like provision for taking testimony in foreign countries, to be used in like manner in the United States.
Also that the law relating to the payment of the final fee within six months of the allowance of a patent be so amended as to make the execution of the law possible in all cases. Under the present law, requiring a patent to be dated within six months of its allowance, the payment of the fee on the last day of the prescribed time makes it impossible to conform to the law without resorting to the fiction of a new allowance, made upon payment of the final fee too late to admit of the preparation of the patent before the expiration of the six months. The extension of the time, within which a patent may be dated, to seven months from the date of its allowance would obviate the present difficulty.
Interesting to Patentees
Senator Hoar advises patentees not to spend their money in trying to get their patents extended. He says that experience shows that no bill for the extension of any seventeen year patent can pass Congress. The feeling against the extension of patents is very strong. Bills have passed one house or the other, but they are always beaten in the end. He says that if he had a brother who had a patent worth $50,000, he would not advise him to spend $1,000 to get it extended.
Mr. Converse's Patent Bill
In our issue of January 17, the bill introduced in the House of Representatives by Mr. Converse, of Ohio (H.R. No. 2,913) was reprinted as it was received from the government printer. The author of the bill now informs us that by a clerical error the words "who shall knowingly violate the provisions of this act," had been omitted from the final clause of the bill as officially printed, and that the bill properly reads as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be unlawful for any owner, or part owner, or assignee of the whole or any part of any patent granted or pending under the laws of the United States to charge or receive as royalty on such invention or discovery more than an amount equal to the cost of production, and twenty-five per centum to be added thereto for profits of manufacture in addition to such coast, and twenty-five per centum profit. Whenever the invention or discovery or the article patented, or when patented is applied for, is used for hire instead of being sold, it shall be unlawful to charge or receive for such use more than the royalty, cost, and profit of manufacture aforesaid. Every owner or part owner, by assignment or otherwise, of any patent heretofore or which may hereafter be granted, or for which application is pending under the laws of the United States, who shall knowingly violate the provisions of this act, shall forfeit to the public all right to said discovery or invention."
In this form the bill is worthy of serious consideration as a fair representative of a large class of well-intentioned but mistaken efforts to regulate the business affairs of patentees.
In discussing the relation between those who make and those who use inventions, many are apt to overlook the fundamental facts of the case; among them these:
1. To live, an invention must be of practical utility. If it is useless it is dead to begin with, and since the fees paid for a patent on such an invention more than cover the cost of issuing it, no one but the inventor loses by or because of its inutility.
2. An invention lives and pays when it furnishes a product which is novel and useful; or when it improves the quality or usefulness of some product already in use; or when it improves or cheapens the methods of producing some existing article; or when it facilitates (like the telephone) the necessary intercourse of men. In each and all these cases the maximum price of the invention or its product is fixed not by the inventor, but by the public need. It is impossible for an invention to increase the price of anything already in use, for in that case no one would abandon the old and buy the new. For an entirely novel article the public will pay no more than it is worth to them. If the inventor charges more than that he cannot sell. However large the profit which accrues to the patentee the public is of necessity benefited more or less immediately, and ultimately it receives the entire benefit which the invention is capable of yielding.
3. The larger the immediate profit to the inventor the greater the practical value of the invention, and the greater also the legacy which falls to the public when the brief term of the patent expires.
4. The object of the patent law is to hasten the development of the useful arts by holding out inducements to all men to exercise their inventive faculties and publish the results of their labors. These inducements cost nothing to the community, and in the aggregate they yield to the nation large benefits directly and indirectly.
5. The experience of the past century proves that it pays to encourage invention as a means of advancing the useful arts. It proves, moreover, that it pays to encourage invention by giving the fullest protection to the inventor's constitutional property rights. Where inventors have been most liberally treated, there their work has been most active and beneficial, and there social and industrial progress has been most rapid.
In view of these fundamental facts, any attempt to arbitrarily interfere with the property rights of inventors and patentees, or to arbitrarily limit their profits, is objectionable for such reasons as these:
1. The act would be one of gross injustice.
2. The act would be impolitic and contrary to public interest.
3. The attempt to limit the price of patented articles by such means would be entirely futile.
The injustice of the act lies in its unwarranted discrimination against the holders of one particular kind of property. There is no species of property which is more honorable to the holder, or which has contributed more to determine the character of modern life and to advance the wealth, power, and industrial supremacy of the American people, than that which is or has been covered by or developed under patent rights for invention. By a single achievement the inventor not unfrequently creates or makes available in the course of a few years more power and more wealth than a million other men can produce by a year of hard work on a farm or in the factory. By far the larger part of such created wealth and power accrues not to the inventor, but of necessity to the nation at large. Still the inventor's possible reward is great (and this is the chief incentive which urges men on to invent), but the greatness of a man's profit in other lines of endeavor is not made a pretext for public interference and legalized robbery. Some lawyers make enormous gains from their professional practice. Would that fact justify a law to the effect that no lawyer should receive for his services in any year more than twice the earnings of a hod-carrier, plus twenty-five percent for professional profit? What would farmers and stock raisers say of a law which should forbid their selling a specially promising colt, or a bull of superior stock and breeding, for more than twice the average price of animals of the kind, with twenty-five per cent added for breeder's profit? What would any man in any profession, business, or art say of a law arbitrarily limiting the profit he might make for his genius, or skill, or patient labor, or fortunate investments of any sort? If such interference would be unjust in the case of the farmer, the miner, the professional man, the artist, or any other, it is not less an injustice to the inventor.
The attempt to limit arbitrarily the inventor's profit in his invention would be bad policy in that it would remove the great incentive to invention, and still worse, it would tend strongly to suppress useful invention should such be stumbled upon. If men were deprived of the possible hopes of making a rapid fortune through successful invention they would not toil on year after year, in poverty maybe to achieve some grand result. Besides the more profitable the invention to the inventor, the greater generally is its value to the community, in the long run if not immediately. But this law would make a poor invention or slight improvement more profitable to the inventor than a great one. The greater the economy effected by an invention the smaller, under such a law, would be the inventor's percentage of profit, thus placing an indirect penalty upon successful invention as marked as the penalty for thrift upon the worst managed Irish estate. Said a tourist to a wretched cottager at the door of his hovel, "Why don't you mend your roof and make your place more tidy and comfortable and wholesome?" "What!" was the reply, "and have the landlord raise me rint!"
The law as proposed would be futile: first, because of its vagueness; second, because, though it attempts to limit the profit of the inventor and maker of patented articles, it in no way touches the profit of the dealer.
The bill limits the rental of patented articles and processes to two and a half times their cost, but it does not say how that costs is to be determined or for what period the rental is to be paid. Some things are rented by the hour, some by the day, some by the year. For what length of time is the prescribed rental to be charged? Again, by strict and skillful economy a manufacturing inventor may turn out an article at the cost say of one dollar. His royalty and profit would then be limited to a dollar a half. Suppose he chooses not to be so very skillful, but makes the cost of production two dollars, increasing his legal royalty and profit to three dollars. How could Mr. Converse help himself? And how many radically novel and economical processes would the public ever hear of under such a rule?
But suppose the inventor or manufacturer too honest or too stupid to study his own interest in that way, what is to hinder the jobber from doubling, trebling or increasing a hundred fold the price of the patented article, irrespective of the makers's profit, except the limit of price which the public desire or need determines? If an article is worth ten dollars a year to the user, and there is no cheaper substitute, that fact will ultimately fix its price whatever may be its original cost. To arbitrarily limit the profit of the inventor and manufacturer, therefore, simply takes what properly belongs to them and gives it to the go-between, who has certainly done nothing to justify such a discrimination in his favor.
Though these remarks have been so far extended, we feel that we have but barely touched upon or hinted at the more obvious objections to the law proposed in this bill. There is scarcely a field of productive effort in which its injustice and unwisdom would not work mischief if it could be enforced, and the attempt to enforce it would be scarcely less mischievous.
The Patent Bill Now Before the Senate
We have heretofore pointed out the disingenuousness of the proposed new law, "To regulate practice in suits brought to recover damages for infringement of patents," the injustice it would certainly work to all who have property in patents, its practical confiscation of vested rights in what are assumed to be matters of only small concern to the owners, and the fairly doubtful question of its constitutionality, if tried on a broad issue in the tribunal of last resort. There is little satisfaction, however, to be derived by the owners of patents from the latter consideration, although it ought, indeed, to furnish a leading argument for the defeat of the bill; but, should it once become law, there is little doubt that its provisions would be generally sustained by the lesser courts throughout the country, and it would be many years, and only after it had done about all the injury possible, before a final reversion might be obtained.
It has also been shown that the passage of the bill through the House was effected by a sort of coup d'etat "in the interest of the Western farmers!" and that no consideration of its provisions was had in that body; it did not come from the Committee on Patents, which has from time immemorial had charge of such matters, and was passed with a very light vote, under the assumption that it covered nothing of essential consequence. It did not matter that Congress had heretofore, for two or three years, given a great deal of attention to the question of the revision of the patent laws, and that the Senate had ably canvassed the whole ground before passing a bill which the House summarily rejected; all of this goes for nothing, and the House, taking not more than five minutes' time therefor, passes a bill whose practical effect would be even greater than the previous Senate bill, and which cannot fail, if it become law, to work an almost complete confiscation of the property of thousands of patentees.
The proposed law is undoubted in the interest, and is the immediate, though skillfully concealed work, of a powerful combination of monopolists. The influence of great moneyed interests in shaping legislation, national as well as state and municipal, has undoubtedly been on the increase of late years. The great corporations and combinations of capitalists which now exist have only lately attained their present gigantic proportions, and, though the manner in which they work to compass their ends is partially understood, the far reaching scope of their schemes is almost beyond ordinary comprehension. There are so many "wheels within wheels" in the complex machinery they employ, that it is always difficult, and often impossible, to decide whence the power is derived, and precisely what object is to be attained. The effort to put through the proposed new patent law, and the dexterity with which it was managed in the House, and the plausible and "taking" reasons at once given to the public for the urgent necessity of such a measure, show the way in which this department of their work is attended to. To suppose that the real reason for the passage of the bill was the one given -- that it was simply a measure for the "protection of farmers" -- would be ridiculous. But to find out exactly who are the parties working so strenuously for the passage of this law, how they have strained their present measure of success, and how much a complete victory would be worth to them in dollars and cents, would be to discover a portion of their work which it is their main object to cover up. A large proportion of the users of patented devices would prefer to pay an equitable price for the value they in this way receive, and in this fact lies the primal strength of our patent system. Any persistent and determined effort, therefore, to confiscate the rights of patentees, cannot have a popular endorsement, and the intimation that "the farmers," whose benefits under our patent system have been so great, are the sponsors of this movement, is absurd on its face. This excuse, and this particular way of changing our patent laws, were not thought of until lately, although there has been, for a long time, a powerful interest working for such amendments as will make it more easy and safe to infringe upon the rights of patentees.
Among those who have most earnestly sought such changes, and who would be the greatest beneficiaries thereby, are the great railway corporations; the sop thrown to the "farmers" would be but a bagatelle to what they would gain, for the passage of such a bill as that now before the Senate would give them advantages whereby they might virtually confiscate thousands of patents involving details of construction and operation, in road-bed, bridges, cars, locomotives, supplies, etc. Certain large manufacturers of the Eastern States have also been very zealous in this work, from the success of which they would reap substantial benefits in escaping payment of fees on many minor patents.
The danger will not be over until the bill is taken up in the Senate and defeated, or so amended as to make another vote upon it necessary in the House. In the latter case, we may be assured, it will not again go through on a stolen passage. Meantime, and until some permanent disposition is made of the matter, it behooves all patentees, and all who are interested in the maintenance of any rights heretofore supposed to have been "secured" to them by our patent laws, to see that the members of the Senate are individually furnished with as many personal protests as the threatened enactment of so unjust a law ought to bring out.
The Commissionership of Patents
The President has nominated and sent to the Senate for confirmation the name of the Hon. Edgar M. Marble, of Michigan, to be Commissioner of Patents, in place of Gen. Paine resigned. It is understood that the new Commissioner takes his seat May 1.
This appointment will, we feel confident, give very general satisfaction. Mr. Marble is by profession a lawyer, and for a considerable time has been Assistant Attorney-General of the United States in the Department of the Interior, where his labors have always been distinguished by marked ability. He is an enlightened and commanding man, in the prime of life -- 45 years -- agreeable manners, sterling integrity, quick perceptions, and judicial mind. He believes in hearing both sides of a case carefully before deciding. We think that the interests of patentees and inventors will at his hands be promoted, and that the affairs of the Patent Office will flourish so long as he occupies the Commissioner's chair.
The retiring Commissioner, Gen. Paine, has been very successful in his management of the Patent Office, and his departure occasions general regret. During his term he thought it necessary to introduce a number of new rules of practice, some of which are regarded as mere additions to the length of official red tape. But it must be admitted that, as a whole, Gen. Paine's administration has been an able one. Some of his decisions in patent cases have a high value for their clear and original method of interpreting the law, and will always rank with the ablest documents among the official records.
Patents for Not Inventing
The constitutional authority for the patent laws of the United States rests on Section 8 of Article 1 of the Constitution, which provides that Congress shall have power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The section of the revised statutes which describes what inventions may be patented carefully limits them to such as are new and useful, and the patentee must in all cases be the inventor or his heirs at law. This has been the policy and practice of the Patent Office from the beginning; and it would seem to be the only one authorized by the Constitution.
The House Committee on Patents, however, appear to think differently, as they have just reported back favorably Mr. Casey Young's bill (H.R. No. 3,041) offering patents to such as are not inventors, for the introduction of inventions which are not new. The bill reads as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person or persons who introduce from a foreign country any secret art, invention, or process useful and important to the public, and not patented there, and at the time of application not understood in this country, may, upon payment of the fees required by law, and other due proceedings had as in the case of new inventions, obtain a patent therefor. And it is hereby declared that any secret art, invention, or process which has been used or practiced, unpatented, for the period of fifty years last past exclusively in the country where obtained, shall be deemed a secret in the meaning of this act."
As was pointed out in the Scientific American, January 31 last, this is a radical departure from the policy, and purpose of all our patent legislation hitherto.
The propriety of granting such great privilege is as doubtful as is the authority of Congress to do it. And it would certainly be a strange way to encourage progress in the useful arts to place inventors of what is new on a level with the mere importer of what is at least fifty years old. Who it is that desires the enactment of such a law, or for what reason, does not appear.
The Page Patents
Undoubtedly some of the ablest decisions ever given in our courts have been those involving the validity of patents and questions of infringement. In such cases, the trials being in equity, and the proceedings never hastened, the lawyers generally have the most ample opportunity for thorough preparation, and the nicety with which they make hair-splitting distinctions often gives their arguments a most subtle flavor, provided that their reasoning be equally close, and the reader or listener be not interested therein in the matter of dollars and cents. Speciousness and sophistry are nowhere else more cunningly introduced, and the courts need to exercise the utmost discrimination to hold the scales with so even a balance that exact justice will be done.
Among the closely reasoned decisions in patent cases which the records of our courts have shown in late years, several which have been rendered by Judge Samuel Blatchford, of the United States Circuit Court for the Southern District of New York, are particularly conspicuous for their keen analysis of the points in controversy, their close application of the law and the evidence, and the subtle reasoning by which conclusions have been reached that were oftentimes disappointing to all the parties concerned. The decision recently made by him relative to a petition for a rehearing in the Page patent case is a paper of this character. We have heretofore presented a pretty thorough exposition of the points originally at issue in the suit of the Western Union Telegraph Company against the Holmes Burglar Alarm Company, as well as the grounds on which were based the petition of the American Union Telegraph Company, and several railroad corporations for a rehearing, after the decisions in the original suit had been rendered, but before the filing of the interlocutory decree. The case in favor of the petitioners was presented by an imposing array of able counsel, but their prayer was denied by the court, in a decision filed on the 7th of May.
In the original decree the validity of the Page patent was sustained as respects its 11th, 12th, and 13th claims, for the retrotractile spring, armature, and set spring, found in electro-telegraphic machines, and the defendant was declared to infringe by "making and selling telegraph burglar alarms in which a circuit breaker acts automatically to break the circuit, so that by the movement of an armature to and from an electro-magnet a bell is rapidly struck by a hammer, and which alarms contain the invention covered by said three claims." Without going over all the points made by the petitioners, it will be sufficient to say that, although the defendant did not use the inventions named on long or main circuits, and their application by the defendant was somewhat different from the way in which they are used in general telegraphing, yet the petitioners feared a decree would be issued which would enable the plaintiff, the Western Union Telegraph Company, to enjoin them from the use of somewhat similar devices in a quite different way, and for other purposes. It is no unusual result of a long-contested patent suit to find a successful plaintiff applying for injunctions against a much wider field of alleged infringers than he had first contemplated as coming within the scope of his patent, and making it appear that the decision in his favor is far more general in its application than a strict legal construction of the language employed by the court would warrant. Looking at the matter in this light, the presentation of the petition, the offers to show proof on points not fully presented in the original trial, and the able arguments made, will undoubtedly serve a useful purpose, even though the prayer of the petitioners has been denied, for the manner in which the court suggests the limitations of the previous decree, defines the points upon which it was made, and refers to the record, will make it difficult for the plaintiffs to give it any wider application than the matter of these burglar alarms, which the defendant has, except to a small extent, ceased to make in the way specified.
The court, it is true, refuses to indicate what would be its decision in case suit was brought relative to infringement in an apparatus used for telegraphing on long or main circuits, but, while pointing out that the petition is before the court from corporations not parties to the suit, who would have ample and proper opportunity to defend themselves when directly sued, when their new and additional evidence might be legitimately introduced, makes the following significant declaration: "It is quite sufficient to say that whenever the defendant shall use what is suggested in connection with a long or main circuit for telegraphing, and shall be proceeded against for doing so, an issue will be raised which it will be proper then to consider, but that no such issue has arisen." The court takes no cognizance of the proposed new evidence, and points out that it is in no way substantiated by oath whether there is any new evidence or not, or "what knowledge or information is had or not had," that was not before in possession of the court; the offer is only as to a solicitor's "best knowledge and belief," and "the best knowledge, information, and belief of the solicitor may be none at all." The matters of fact and of law sought to be raised by the petitioners are declared not to be in issue in the suit, and it would be a wrong to the plaintiff to consider them in any way to give such construction to the patent as does not legitimately arise from the record, and it is held that a new suit, where the petitioners are parties in interest, will afford the only opportunity to bring in these further issues.