Scientific American, v 58 (ns), no 2, p 16, 14 January 1888
The Barbed Wire Patent Declared Invalid
This famous patent has at last been declared invalid in Circuit Court proceedings. The rights were founded on the Glidden patent, No. 157,124, dated November 24, 1874. Hitherto it has met with no legal reverses, though numerous attempts have been made to overturn it. The last decision, rendered by Judge Shiras, in Iowa, declares it void for want of novelty.
The grounds afforded by the proofs of the decision are interesting. They illustrate the precarious tenure of a patent under the existing laws, yet in the life of fourteen years that the patent has enjoyed, an adequate reward to satisfy the equities of the case has doubtless been reaped by the owners.
The defendants in the suit averred that as early as 1859 a prior inventor named Morley had devised a barbed wire fence, and had constructed and exhibited it at a fair in Delhi, Iowa. Witnesses were produced who swore that they had seen it. One had been injured by contact with the barbs; another one had his horse cut by them; the blacksmith who had made it testified clearly to such fact. A sample of the material about a foot long and with two barbs still attached was produced as the only piece left of the original wire.
The witness who averred that he had been injured showed the scars, and the fact of their presence on his face was entered on the record by the examiner. All this testimony related to a period now nearly thirty years past. The details of the testimony are quite dramatic. The record occupies about 10,000 typewritten pages.
This reversal of preceding judgments probably means that the patent is extinguished, practically, forever. The case has been appealed to the Supreme Court, but in the ordinary course will not be reached for three years. This will be within a few months of the term of the patent, and will end the whole question, except as regards the collection of arrears of damages.
Great rejoicing, it is said, will follow this decision. The farmers are supposed to be greatly benefited by it. The contrary is the case. They will receive no benefit worth mentioning as regards reduction of price. By the intelligent exploiting of the patent, which embodied a bona fide invention of the part of Glidden, the farming world was immensely enriched. The farmers, not the patentee or owners of the patent, have secured the greatest good from the cheap and efficient form of fence that it supplied. It would seem a hardship that the patent should expire on account of the unused and dormant invention of thirty years ago, were it not that large royalties have already been collected. Except for this, abstract justice would seem absent from the results of the recent trial.
The illustration the matter affords of the actual good done to communities by patents is valuable. In 1859 the wire was invented and shown in public applied to fence construction. But it was not patented, and hence nearly faded from human knowledge. But when a later inventor reinvented it and patented it, he became at once a benefactor to his kind. When patented, which, etymologically, means laid open to the world, it at once became one of the most valuable franchises the country has seen, the value of which was in exact relation to the good it did to the farming community; as they used it largely, they afforded a measure of its worth.
It is proper that if the proofs are good, the patent should expire. But it has during its life been a source of profit to the users of the fence, and not of injury. It has given them what they never had before, it has cheapened fencing immensely, it has solved the problem of enclosing the vast prairies of the West, and for the good it has done, the trifling royalties are but an insignificant remuneration.
The Indiana Patent Bill
Hon. Mr. Holman, of Indiana, has introduced the following bill in the House of Representatives, No 1344"
A Bill to Secure to the Public the Use of Patented Inventions
"Be it enacted by the Senate and the House of Representatives of the United States of America, in Congress assembled, That all persons or corporations, whether owners or licensees of patents granted by the United States, are prohibited from withdrawing any machine or process from public use because of any regulation of the tariff of charges by the legislation of any State or Territory wherein such machine or process is being used, without the consent of such legislature."
The same bill was introduced at the last session of Congress by the same member, but failed to pass, and we earnestly hope this renewed attempt will share the same fate.
If this bill should pass, it would be within the power of any State or Territorial legislature to subject citizens to the most serious losses. Among the first to suffer would be widows and orphans. All who hold investments in patented properties would be liable to be robbed of their incomes, the same as already has happened in Indiana with the telephone owners.
The Supreme Court of the United States decided long ago that all State laws for regulating the sale or disposition of patented inventions were unconstitutional and void, for the reason that the exclusive authority in such matters is by the Constitution exclusively vested in Congress.
For some unexplained reason, the authorities of the State of Indiana have for years treated the Supreme Court decisions with contempt, and there are today among the Indiana statutes several laws relating to patents that are at variance with the paramount authority of the United States. The most recent Indianian effort in this line is the State law that regulates the price at which patented telephones may be sold. The law specifies that no telephone company shall charge more than $3 a month for use of same; thus taking entirely away from the patentee all voice in or control of his invention. The validity of this law has been sustained by the highest tribunal of the State of Indiana, and is now in force there. The result is that the Bell telephone companies in several of the cities of the State were obliged to withdraw their instruments from use, as the amount allowed by the local law was not sufficient to pay them any profit.
Indiana has profited vastly, in common with all the states, from the many new industries and manufactures which inventive genius has created and given the country. The industrial prosperity of the State is largely based upon the wealth which has been brought in to her by the use of new improvements and inventions. If they are to be withdrawn, or discouraged, property values must necessarily decline, and manufacturing industries must be removed to more congenial places.
Amendment of the Patent Laws
Nearly a dozen bills having in view a change in the patent laws have been introduced at the present session of Congress, most of which, if passed, would have the effect to destroy the present value of patent property and crush many of the industries that now flourish under the protection of the patent laws.
For example, bill H.R. 1,171 provides for vacating patents; 1,344 for securing public use of patents; 1,286, 1,569, 1,637, 4,368, "to protect innocent purchasers" by allowing everybody freely to infringe; 1,327 to limit the damages to be recovered by patentees; 1,431, to reduce the term of patents; 3,326, to regulate the use of patent rights.
It is to be hoped none of these bills will pass.
The Electrical Association lately discussed patent laws and the necessity of their revision, several of the members having become satisfied that changes were demanded. One of the new features proposed was the establishment of a patent court as a branch of the Patent Office. The general result of the discussion was, we believe, that the present laws worked so advantageously, it was not prudent at the present time to try to introduce any new, experimental features.
Of other suggested changes, among the most sensible are those presented by Senator Chandler, and contained in a memorial by Mr. J. McC. Perkins, of Massachusetts:
"He asks that the patent laws of the United States may be so amended that patents shall be granted substantially as they were before the law of July 4, 1836; the first patent law, of 1790, authorizing the grant of letters patent to any person who applied in proper form and paid the required government fees. [Actually, this was the law of 1793 KWD] In 1835 the Secretary of State informed the public that patents were issued in the order of time that proper documents were received at the Patent Office. In 1836 Congress radically changed the law regulating the grant of patents by providing that they should not be issued until the Commissioner of Patents should be satisfied that the subject matter was really patentable. The object in thus changing the law was to obviate inconveniences resulting from the fact that, because drawings and specifications in those days were not published, some patents came to be many times duplicated. Under the present practice, however, with the publication and sale at merely nominal price of drawings and specifications immediately upon the issue of every patent, inventors can easily ascertain whether or not it will be profitable for them to obtain patents and to undertake to enforce such patents by suits in the court, and the reason of the changes made in 1836 no longer applies. Under the present system the memorialist states that the features of a judicial tribunal have been engrafted upon the Patent Office until now its machinery rivals in elaborateness that of the Federal courts, and yet after all the proceedings have been had in the Patent Office and a patent issued, nothing has been settled. The whole question must be fought over again in the courts, the same as before the law of 1836.
"The memorialist claims that the practice prevailing before 1836 of granting patents to all applicants is substantially the English system and that of all other patent-granting countries. The memorialist proposes as his remedy for existing evils to abolish the requirement of a Patent Office examination before the grant of a patent, and to give to every inventor his patent on his filing a correct application therefor; and, if disputes arise between different inventors as to their rights, to let the controversies be settled by the courts alone, exactly as they, in fact, must be and are now settled. He states that the annual report of Judge Mason, Commissioner of Patents in 1855, presents very clear the reasons why this change should be made; that Commissioner Foote, in his report for 1868, re-enforces Judge Mason's recommendation, and that the ablest Commissioners of Patents have repeatedly pointed out the great injustice of the present system.
If these changes were enacted, inventors would become their own examiners in respect to novelty; all delays would be done away with, an increase in the number of patents granted would take place, and the present force of examiners would be able to maintain and carry on the business of the office in the most efficient manner.
Mr. Edison on Patent Protection
The unthinking and unintelligent members of the body politic who are clamoring for the overthrow of our patent law, under the wholly mistaken impression that the consummation of their design would, in some unexplained way, aid in the suppression of their pet bugaboo, "monopoly," have received a notable recruit to their ranks in the person of one of the principal beneficiaries of the system which it is proposed to destroy. Ordinarily, the right of a private person to the unmolested enjoyment of his own opinions in respect to this or any other subject is not to be questioned; but when an inventor occupying so prominent a position before the public as Mr. Edison appears on record as an exponent of the opinions attributed to him in the published interview we reprint, his action ought not to pass without comment. Mr. Edison is reported as saying:
"The present law is a constant temptation to rascals, and virtually offers a premium upon rascality. Under it the infringer of a patent is not interfered with until the real owner can show that he has the monopoly of the device in question. This process may take years, during which the infringer who has money and audacity enough to seize another man's invention can go on and perhaps wear the rightful owner's life out by litigation and annoyance. I have had so much of this sort of thing within the last five years that I have almost made up my mind never to take out another patent until the law is changed. The burden of proof is now put entirely upon the man who holds the patent, instead of upon the man who wishes to infringe it, whereas it ought to be all the other way."
An old proverb bids one to speak well of the bridge that has carried him safely across the stream. It is not many years since Mr. Edison was earning, by diligence and industry, a modest stipend of three dollars per diem as a telegraph operator, and it is but just to say that he was accounted a very skillful one, and well worth the money. Today he occupies the finest estate in the vicinity of the metropolis, and if he is not twice a millionaire, it can be for no other reason than that, like too many of the rest of us, he has found it less easy to keep money than it is to get it. We venture to assert that had it not been for the patent law which he now decries, Mr. Edison would, in all human probability, have been "pounding brass," as the phrase is, at this moment, although it is doubtful if, in the absence of the inventions which the patent law has fostered, anybody could afford to pay him more than $1.25 per day. Who would have given him a dollar in exchange for his quadruplex and automatic telegraphs, and his electric light inventions, had it now been for the patent law? Would he not have been obliged to content himself with the modest wage earned by daily industry? He adds, mysteriously:
"I have already found one chemical device which promises to pay me handsomely, and the Patent Office will never hear anything about it. To apply for a patent would simply invite a lot of rogues to share with me, or, what is more likely, to take all the profits."
Every right-minded person will be gratified to learn that the prospects of polyform, if indeed it be that excellent remedy which is referred to, are so flattering. But to return to the patent law. Mr. Edison complains:
"There is scarcely an invention of importance made within the last generation which has not been disputed upon frivolous grounds, and the inventor put to all sorts of annoyance. In my own case, I am sure that, no matter what I may patent, some one will come up as soon as the patent is seen to have any value, and show by dozens of witnesses, if necessary, that he is the rightful owner of the invention. If I patent tomorrow a process for making good flour at a cost of two cents a barrel, the publication of my patent would bring out about ten men who could prove that they did that sort of thing years ago, and that I had no right to a patent."
This is not simply an indictment of the patent law, but of all law whatsoever, and the real root of the trouble obviously lies, not in the statutes, but in that inborn proclivity of the unregenerate human animal which prompts him to appropriate his neighbor's property, and which it is one of the principal functions of the common law to prevent and punish. The patent law merely serves to protect the inventor by declaring that an invention is property, and that it may, therefore, be the subject of larceny.
The federal courts have never, to our knowledge, pronounced any patent whatever invalid because of prior knowledge or prior use by another, except the anticipating invention had been actually embodied in a concrete and operative machine or method, and that fact had been proved beyond a reasonable doubt. That the law is designed to protect, and that it does in fact protect, the real originator is abundantly shown in the cases of such inventors as Goodyear, Howe, Morse, Bell, Edison, Westinghouse and many others, whose achievements have served to render the annals of American industry illustrious.
The fact is, and it is well to bear it in mind, that the pre-eminence of the United States, is distinctively a nation of inventors of improved machinery and processes, dates back no further than the patent law of 1836, which is substantially the one now in force, and it is to the fostering care of this wise statute, more than of any other which has ever been enacted by Congress, that this country owes its present prosperity and greatness.
Do not lay rash hands on the patent law. Let the American inventor be protected. In hoc signo vinces.
-- Electrical Engineer
The Professional Inventor
Under the heading of "A Hint to Inventors," the facetious editor of Texas Siftings gives the following dialogue, which is, in a measure, characteristic of a class of inventors:
First Yankee: "What puts you in such a good humor this morning?" Second Yankee: "I've just got my patent for a new patent ink eraser. I wouldn't take $50,000 for it." "Did you get a patent last year for inventing an indelible ink?" "I did, and I sold it for $30,000, and now I've invented an eraser that will even remove writing done with my own indelible ink." "What are you going at next?" "I'm going to invent another indelible ink that can't be erased with my new ink eraser. I tell you, there is money in this patent business if you go at it right."
Proposed Increase in the Patent Office Staff
A correspondent of the New York Tribune says: An item in the legislative appropriation bill, which was lately submitted to the House by the appropriations committee, provides for the appointment of thirteen additional examiners for the patent Office, and for twelve more $1,200 clerks. The committee has also so shaped the appropriation of the Land Office that the law providing for the evicting of the Land Office from the Interior Department building in December must be enforced. This will in itself accomplish much toward heightening the efficiency of the Patent Office force, which has been crowded together until the breathing of foul air and the necessity of climbing over somebody every time one moved from his seat seriously interfered with the progress of the work.
Two of the new positions thus provided for will be for principal examiners, and thus two new divisions will be created to aid the present twenty-nine divisions in disposing of the ever increasing volume of business pouring in upon the office. Mr. Butterworth, of Ohio, who was Commissioner of Patents under President Arthur, introduced the matter to the attention of the committee and procured the incorporation of the above provisions in the bill. If he was as successful in convincing the members of the House at large that the Patent Office should be run on a non-partisan basis for the benefit of American inventors, who pay the bills, as he was in driving that point to the mental consciousness of his colleagues on the appropriations committee, Saturday, that item of the bill will go through untouched. It certainly does seem absurd that any picayune considerations of "reform" economy should keep Congress from appropriating sufficient sums out of the money which inventors pay into the treasury promptly to transact the joint business of the inventors and the government.
All salaries and expenses of the Patent Office, together with expenses of conducting and maintaining the great building popularly known as "The Patent Office," but which also contains the office of the Secretary of the Interior, his assistant secretaries and clerks, are paid out of the patent fund. This fund is replenished by the fees paid by the inventors at various stages of Patent Office action upon their applications for patents. Not a cent comes out of the government's pockets for the support of the Patent Office. On the contrary, the surplus of the fund is continually increasing, and is now about $3,000,000. This vast amount of money sucked from the pockets of American inventors -- who are generally poor as church mice -- lies idle in the treasury, while their business in the Patent Office is so far in arrears through an inadequate force and inadequate accommodations that in some cases six months pass after an application has been filed before it is heard from, and after that a period of three months must elapse after each letter written in the case by the inventor before he gets an answer. Consequently where there happens to be a difference of opinion between the examiner and inventor as to the scope of his claims, the case may drag on for years, while the new art is advancing at the rapid rate of mechanical development of the present age, some other inventors are coming in with conflicting applications, and endless confusion results, to the loss of the inventor, the vexation of the examiner, and the fattening of the patent lawyer. One can imagine the high rate of speed with which an argument advances, when three months pass between the statement of each proposition and the answer thereto.
In the face of all this the appropriations committee every year cuts down the salary of the principal examiners in the Patent Office to $2,400, while the law says they shall be $2,500, while the chiefs of divisions in the treasury of the same rank get the full $2,500 for work which does not require the ability and special knowledge called out in the daily decisions of the Patent Office upon rights involving thousands of dollars, and turning upon the finest legal and scientific points; and while the surplus Patent Office fund goes on accumulating.
Patent Tricks -- Old and New
When an inventor receives a patent, his name is immortalized in the Official Gazette, and he immediately becomes the object of attacks from a horde of hungry aspirants for money, among whom are ex-clerks, patent brokers, and pretended legal lights of varying degrees. The patentee is deluged with circulars and letters from this class of gentry. Some write to inform him confidentially that his patent is good for nothing; but on receipt of a certain fee they will set it right and make it sound as a silver dollar. Others pleasantly inform the new-fledged inventor they have read his patent with great pleasure, consider it to be a valuable invention. If properly introduced, much money can soon be realized. The State of Iowa, they say, is worth $50,000, Ohio $45,000, Pennsylvania, $65,000, and so on. All that is necessary is to print some circulars and do a little blowing, which the broker generously offers to do on receipt from the inventor of ten to fifty dollars cash in advance. Another writes to say he has an actual offer of $10,000 for the patent for Canada, provided the patent is at once taken, which he will produce on receipt of the necessary money. It is almost needless to suggest these schemes are designed to fleece the inventor. The so-called patent sellers rarely effect a bona fide sale. They depend upon the advance fees obtained as above for a livelihood. Some of them have thus grown rich and prosperous.
These pretended sellers try to make it appear they are reliable by giving respectable references, and cite names of patentees for whom they purport to have sold patents. One mode of procuring these references is as follows: They write the patentee they have a customer who will buy a county right in Minnesota for $500, and pay by deeding 25 acres of land in Arkansas, really worth $1,000, but the parties are so anxious to obtain the patent right they are willing to let the land go and take the right, in settlement, provided $50 cash is paid and a mortgage is given for $500. This done, the patent broker closes the transaction, receives the $50 cash, which is the full value of the land, also receives a mortgage for $500, together with the patent deed. At the same time the broker is careful to obtain a written certificate from the inventor stating, "I take pleasure in saying that X.Y.Z. & Co. have sold a patent right for me, at my price, and on terms satisfactory, and I recommend them," etc. In this way references are secured which make quite an impressive show on circulars, while the inventor is so ashamed of having been so easily duped, he keeps mum.
One of the latest tricks is the following: The patentee receives a letter from A. & B. asking for how much he will sell his patent for such and such a State. He replies, giving a price, say $5,000. The patentee soon after receives another letter from X.Y.Z., saying that A. & B. write they have corresponded with you, and now say they have decided to purchase the patent on the terms named, provided the title and claims are found to be correct. To ascertain this, they require that X.Y.Z. shall examine and report upon the patent, otherwise A. & B. will not purchase; that if the patentee wishes to complete the sale, he must remit fifty dollars to pay for the examination, which is a work independent of the sale, and must be independently paid. The inventor sends the money; a report is made adverse to the patentee; no purchase is made; none was ever intended. Such are a few of the adroit schemes now in vogue for swindling "innocent" inventors.
Bills have been introduced in Congress to protect innocent purchasers of patents, i.e., infringers. Might it not also be well for somebody to formulate a law to protect innocent inventors?
A Patent Symposium
"I tell you, sir, the Patent Office ought to be reformed, every man of them turned out, from the least unto the greatest, and the law altered so that a patent would be good for something!" The speaker was one of those overgrown noisy men with bulbous form and bawling voice, loudly giving his opinions in one of the hotels on Union Square, where electricians do congregate. He said that he came from the State of Kansas, and some accident of hospitality had evidently brought him very nearly into another state -- the penalty for which Kansas is, we believe, death for the first offense and dissection for the second. The results were limited to making him slightly loquacious without further disabling his faculties.
A cool young man inquired if he was interested in any patents.
"Why, yes; that is my business. I am a professional patentee, Col. Grumpus Bloward, of Yates County, sir. I was the first inventor of the telephone. It was in the spring of '37. I didn't make one, but I said at the time that the telegraph was very good, but they ought to talk by telegraph. I conceived the idea and therefore made the mental effort, yet they would never have given me a patent. I was told two years ago that it was no use to apply for a patent -- and see what this grasping monopoly of a telephone company now holds!" [The last in the best tones of his voice.}
"Did you fully recognize the value of such an invention accomplishing the electrical transmission of speech?" asked the young man.
"Certainly I did, and never lost sight of it, either. I knew that it was worth millions and millions?"
"Ever buy any telephone stock?" was the next interrogatory.
"Now, young man, that has nothing to do with the question, and I don't wish you to try and dodge the subject in that manner! As I was going to say, I invented a perpetual motion, and put in my application for a patent; and what do you suppose they did? What do you suppose they did?" [Second time, voice fortissimo crescendo.] "They sent back papers and money with a letter written by an understrapper, and signed by some chief cook, saying that the office did not recognize that the subject was within natural laws, and that it was therefore beyond the scope of the office, and the application could not be entertained by them. It was an infringement of my rights as a citizen. They ought to give every one a patent and one that would be good for something, so that there would be no suing and infringing."
"Suppose that some one would apply for a patent on some invention for which you had received a patent?" asked the young man.
"Why, the office would have to throw it out," was the reply.
"Well," pursued the inquisitor, "what would you do if some one should 'make, vend, or use' your invention?"
"Shut him up at once!"
[Very savage this time, suggestive of retrogressive revolution. No scalping done, however.]
"Possibly without due process of law or bringing the action and proving the infringement?" asked the young man.
"I said once that government ought to make a patent always good, without obliging the people to go to law. Not half of the patents are good for anything in the courts."
"That matter has been looked up," said the young man, consulting a memorandum book, "and the records of the decisions of the United States courts on patent issues from 1776 to 1886, as given in Meyer's Federal Decisions, show that 73 per cent of the patents were sustained and 27 per cent of the patents were annulled. Of those which were sustained, 67 per cent were valid in their entirety and 33 per cent were sustained in part. In later years the percentage of valid patents is largely in excess of the average result, owing to the decisions which have established every phase of patent law, and also the higher class of men which have been engaged in the solicitation of patents.
"The majority of patents possess a stability of value which will compare favorably with that of personal property in stocks, but any lack of value in patents cannot be ascribed to defects in the legal status of the patents, but to the lack of skill in the patentees, whose inventions are either inoperative or not suited to any practical purpose to a degree superior to present methods.
"The art of inventing consists in finding out what is wanted, and then making something to fill that want. By reason of inventions protected by patents, I have been prosperous, receiving at thirty-five a larger annual income than the aggregate amount obtained by my father during a pastorate as long as my life.
"No one has been defrauded, no one has been made poorer, while labor has been made lighter and production increased, giving additional resources to those who would have lacked.
"If there had been no patents, I should not have thought. If I had not thought, I should not have invented, but would have been a laborer -- a hewer of wood and drawer of water.
"The moderate pay and the defects of the civil service in regard to appointment and promotion render it a wonder that the vast deal of work imposed by law upon the Patent Office can be so well and so faithfully performed. It is but in the nature of things that there is opportunity, even need, of reform, but it must be the kind of reform which improves, not the kind of reform which destroys.
"Concede everything alleged against the United States patent system, and then name the nation whose patent system you would take in exchange."
This gentleman, who had joined the group unannounced, departed unattended, while a young stenographer who had reported the discussion without being observed, wrote it out and submitted the foregoing credentials accompanying an application for employment in the office of Electrical Review.