Scientific American, v 62 (ns), no 6, p 83, 8 February 1890
Patent Office Reform
Congressman Butterworth's efforts toward reforming the Patent Office deserve immediate success. As he was once Commissioner of Patents, he is well qualified to judge the needs of the bureau. It now occupies a small portion of the building which was erected out of the profits of running it, and is badly cramped.
Other bureaus of the government are run at a loss. The Patent Office alone makes a handsome profit to the government, yet it is in cramped quarters, has an insufficient force of examiners, which causes great delay and financial loss to inventors. In some branches the examiners are eighteen months behind their work. Some of the applications on file are for important inventions which are imperatively needed, but no application can be taken up out of order except by order of the Secretary of the Interior, for reasons of public necessity.
It should not be overlooked that one of the greatest elements of our national prosperity is the advantage we possess over every other nation by reason of improved machinery and mechanical devices, the products of American genius. Great as have been the achievements of the past, there was never a time when so many useful and convenient inventions were being brought out as at present, none of which can be introduced until covered by letters patent.
The Patent Office ought to be given all possible facilities for rapid and efficient administration. The inventors more than pay all expenses, and there is no justice in subjecting them to unnecessary delays. This is one of the most important subjects now before Congress, and should be dealt with promptly.
The Philadelphia Inquirer, from which paper the above is copied, is quite right in urging upon Congress the importance of taking immediate measures to relieve the overburdened Patent Office, and furnishing the whole bureau of employees more room and better facilities for carrying on the work. To this end, which is somewhat encouraging, the House committee on patents has been directed to investigate and report, by bill or otherwise --
First. -- What change in existing patent laws is necessary to correct any alleged abuses and render the system more perfect and efficient.
Second. -- Whether the Bureau of Patents has sufficient room and facility for the proper and prompt discharge of the business brought before it.
Third. -- Whether the force employed is adequate and the compensation of examiners sufficient to secure and retain an efficient corps.
Patent Office Salaries
During several years past we have repeatedly called attention to the extremely inadequate salaries paid to important officials of the Patent Office. The necessity of increasing the waters in order to secure and retain in the bureau the services of skilled and experienced individuals is self-evident. At the present time the salaries are so low that the business of the Patent Office greatly suffers by the frequent withdrawal of efficient helpers, who would not think of leaving if adequate compensation were given. The interior working of the Patent Office is about as follows: When a man succeeds in passing the required preliminary examination in the sciences and enters upon an employment at the bottom of the ladder, that is to say, as third assistant examiner, he receives a salary of $1.400. If, on further examination, by good conduct and success in acquiring useful experience, he rises a notch to the post of second assistant examiner, he gets $1,600, then as first assistant $1,800; finally, when by extended experience and long study he reaches the highest round in the ladder, that of principal examiner, he is paid $2,500 a year. His responsibilities are now greatly increased, he is in fact, under the law, constituted both judge and jury, in respect to the grant of patents and the allowance of patent claims. There are few positions in the range of government service wherein scientific ability, knowledge of patent law, good judgment, keen memory, and the abilities promptly to exercise these qualities is so necessary as in the office of examiner. Every consideration of policy and justice requires that the salary should be generous and adequate. The bill now before Congress (H.R. 8,632) proposes to give principal examiners $3,000, first assistants $2,400, second assistants $2,000, third assistants $1,600, and fourth assistants $1,400. These salaries are very moderate, and we urge upon Congress the immediate passage of the bill.
Increase the Patent Office Facilities
Three millions of dollars is the sum which it is proposed to appropriate for the building of a new Patent Office, or for making some provision for removing the other bureaus of the Interior Department from their present quarters and giving the whole of the building to the Patent Office.
Representative Butterworth, chairman of the committee on patents and ex-commissioner, states, in a report to the House, that a suitable building can be constructed by private contractors in one year, but that it would probably take the government from five to ten years to do it, and it would cost twice as much. He declares, with much emphasis, that there is neither justification nor excuse for continuing the office in the insufficient, inconvenient, and unhealthy quarters which it has so long occupied, and which are rapidly becoming more unfit for the purpose. He believes that Congress has dealt with this important bureau in palpable disregard of the rights of the citizens having business to transact before it, and who pay the whole expense of its maintenance.
The Electric Review repeats what has so often been said before about the necessity for additional room for the Patent Office, but which Congress seems reluctant to understand, or rather has heretofore been indifferent about remedying.
The editor says: "Inventors not only pay the cost of their own labor and researches in perfecting their invention, but they also pay the cost of the examination by the government to determine whether the invention is new and useful, and therefore patentable, and, if patentable, they pay the expenses of issuing the patent. So that the Patent Office has to its credit $3,631,670.32 over and above all expenses, which the inventors of the country have paid for the support of the bureau, and this surplus should be used in providing proper facilities for the rapidly increasing work."
Proposed Amendments to the Patent Laws
Quite a number of bills have been introduced in Congress for the amendment of the patent laws, one of which (H.R. [?]) we will now briefly review.
The first section is to the effect that patents may be issued and will be valid, provided the invention is new and has not been patented or described in any printed publication before the invention or discovery thereof by the applicant.
The second section provides that no patent shall be issued for an invention already patented in a foreign country, unless the patent shall be applied for within two years from the date of the earliest foreign patent.
As the law now stands, an American patent may be granted at any time during the term of the foreign patent, provided the invention has not been in use for more than two years.
The second section also provides that the American patent issued as above shall run for 17 years from the date of the earliest foreign patent.
Under the present law the American patent expires when the earliest foreign patent expires. This is a good amendment and should be adopted. The third section provides that an inventor, after describing his invention in the specification,may use such language in stating his claims as he prefers.
We do not exactly perceive the object or value of this amendment. As the law now stands, the inventor may use such language as he prefers in presenting his claims. It is true, the examining officer, in many cases, objects to the wording of claims, and inventors are subjected to long delays in answering and overcoming these objections. If the object of the amendment is to compel the examiners to allow patents upon whatever claims the inventor chooses to present, the amendment should state so explicitly.
Such an amendment, if carried into effect, would make a sweeping change in the present practice of the office. It would render unnecessary the present cumbersome system of official examinations. It would give to every applicant a patent, and leave to the courts the settlement of the question whether the patent was valid or worthless. This is the way they deal with patents in nearly all other countries, and the plan works well.
It makes the inventor his own examiner, and if he chooses to take a patent for an old device, it is his own affair. It is the opinion of many that this is the best method, and sooner or later it must be adopted in our Patent Office.
Section 5 provides that all assignments, licenses, and conveyances of patents shall be void against any subsequent mortgagee or purchaser, unless recorded within three months from date.
By this provision a bona fide purchaser and actual possessor of a patent may be deprived of his property without compensation.
To accomplish this it is only necessary for the former owner to give a second deed to another party and place it on record, the first deed, perhaps through ignorance of the holder, oversight, or trick played on him, having been kept away from record for three months.
This section needs amendment so as to prevent injustice to the first bona fide purchaser.
Section 6 provides that aliens, resident here a year and having declared intentions of citizenship, may file caveats. At present two years' residence is required.
Section 7 provides that when an application is made for a patent for an invention already patented, the Patent Office may, by the assent of both parties, decide the question of priority and grant a patent to the new applicant if he proves priority.
If the assent of both parties is not given, the Patent Office may take ex parte testimony from the applicant and give him a patent if he proves a date of invention earlier than the date of the filing of the application of the first patentee. A similar provision applies to rejected cases and competing applications. Whoever proves by ex parte testimony that his invention was made before the date of the filing of the application cited against him, is to receive a patent.
This section if adopted would put an end to a vast amount of litigation now carried on before the Patent Office, under the general designation of interference proceedings; it would turn over nearly all questions of priority to the courts, where they properly belong, and where, in fact, they now go for final settlement.
Section 8 provides for issuing certified copies of patents at a charge of twenty-five cents extra for the certification. Section 9 provides that in suits no damages or profits shall be recovered except for six years last preceding the bringing of such suit. This will be a help to infringers.
Section 10 provides for the recording in the Patent Office of all injunctions relating to patent infringements.
Section 11 authorizes U.S. courts to pass the title to a patent by decree, in the case of an insolvent or bankrupt; such decree to be recorded in the Patent Office.
Section 12 relates to infringements of design patents, and makes a verdict of infringement to be conclusive evidence that the profits made by the defendant were due to the infringement. This seems unnecessarily severe and needs revision.
Section 13 provides for taxing patents ten dollars at the end of five years, and twenty-five dollars at the end of ten years. If for any reason the tax is not paid, the patent ceases.
One of the important differences between our patent law and those of other countries is that when a patent is give it holds good for the entire time without taxes or conditions of any kind. There is no need of any such taxation as that here proposed, and it is to be hoped Congress will not adopt it. Its only effect would be to deprive inventors or their families of their patents, who by oversight, inability, absence, or death, should neglect to pay the taxes. The inventor should be treated, every time, as a benefactor of his country, not as a criminal or a wrong doer, requiring to be governed by special pains and penalties. This is the European method. Let us not introduce it here.
If the object of this section is to cut off and extinguish patents that certain persons consider to be good for nothing, if such extinguishment is desirable, then the proper and better way to effect it would be to provide by law that any holder of a patent who desires to surrender and cancel the same may do so, and shall, on making such surrender, receive back the sum of twenty dollars, being part of the government fees originally paid in. It would be better to repay something to the patentee, in order to cancel his patent, rather than oppress him with taxes after having given him the patent.
The Principal Discoveries and Inventions of the Present Century
The following is a chronological resume of the principal discoveries and inventions of our century:
Electricity especially has been put under contribution by the inventive genius of our investigator. At the moment that we were entering upon the nineteenth century, Volta has just invented the electric pile (1789). In 1820 Oersted, the Dane, discovered magnetic electricity, the laws of which were soon determined by Ampere, and, in the same year, Arago discovered the principle of electric telegraphy, which was afterward improved by Morse, in 1838, and by Breguet, in 1845, etc.
In 1843, Bunsen, a German, invented a new electric battery, and two years afterward Elkampton and Ruolz discovered electro-metallurgy.
Along about 1832, Faraday discovered electrical induction, upon the principles of which Rhumkorff, the German, established the coil that bears his name.
In 1854, Bourseul discovered the principle of the telephone, which was improved by Reiss in 1860, and afterward by Bell, and especially, since 1876, by Edison, who also, at about the same epoch, improved the phonograph, the first idea of which belongs to Leon Scott, a Parisian proofreader, who suggested it in 1856.
Between 1841 and 1878 are embraced the discovery of and improvements in electric lighting, and along about 1881 the French engineer Deprez conceived the idea of transmitting any sort of motive force to a distance by means of an electric wire.
While waiting, then, until the fairy electricity shall have dethroned steam, let us register what has been accomplished through the latter: The establishment of railways after the manufacture of powerful locomotives had been rendered possible (1862) by the invention of the tubular boiler by the French engineer Sequin (1828), and the establishment of steamers, to which, as long ago as 1838, was applied the screw invented by Dallery, of Amiens, in 1803.
While we are on the subject of the methods of locomotion, let us say that aerostation likewise has made great progress, although the last word will not have been said in regard to this until the question of the steering of balloons, which has taken a long step in advance through the experiments of Messrs. Krebs and Renard, has been absolutely solved.
Cork jackets have been improved, and, at the present time, there is a great deal being said about submarine boats, like that of the inventor Goubet, whose wonderful experiments a short time ago astonished the spectators assembled at the roadstead of Cherbourg.
In an absolutely different line of ideas, let us mention the silk loom invented by Jacquard between 1790 and 1801; the Davy lamp, which dates back to 1815, and which has rendered mine accidents less frequent; the sewing machine, for which Thimmonfer, of Amplepuis (Rhone), took out a patent in 1830, and which since improved by the American inventors, Walter, Hunt, Howe, Singer, Seymour, etc., and by the Frenchmen Maquaire, Hurter, and Hantin, etc., and to some extent also by the mechanics of all countries, has come into so common use; and, finally, the rotary cylinder press, invented by Marinoni in 1867, and which prints 40,000 copies of a newspaper per hour.
In optics, Fresnel, along about 1820, improved lighthouses through the use of lenses that now bear his name, and in 1829 Niepce and Daguerre invented photography. We shall some day return to the history of this admirable discovery and the chronological series of improvements that has been introduced, but for the present let us recall that one of the last of these in date is instantaneous photography, that is to say, the possibility of obtaining an image in 1/100 and in 1/1000 of a second even, according to a report read by Mr. Marey to the Academy of Sciences in 1882.
In agriculture, Dombasle, in 1822, improved the plow, in recent years the English, and especially the Americans, have conceived the idea of applying steam to the operation of all agricultural machines -- plows, seed planters, mowers, etc.; finally, Messrs. Remy and Gehin, taking up an idea that Jacobi, a German monk, conceived during the last century, developed the science of pisciculture, which Mr. Coste has succeeded in extending along our coasts.
A certain number of discoveries have been made in the line of chemistry: In 1811, Gay Lussac discovered iodine, in 1826 Balard discovered bromine, and in the following year Wohler obtained aluminum, which, later on, Sainte-Claire-Deville succeeded in manufacturing in a purer state and at a lower cost. Finally, we may mention Chevreul's and Berthelot's discoveries in organic chemistry, and those of Boussingault and Payen, who created organic chemistry, and then the labors of Claude Bernard in physiology and those of Pasteur on ferments, microbes, and viruses.
Thus, while certain savants endeavor, through science, if not to diminish the number of troubles that afflict poor mankind, at least to lessen the effects of them, other men seek methods of destroying people in the most rapid manner, when occasion occurs. Diplomats and politicians justify the researches of these men by constantly repeating that in time of peace it is necessary to prepare for war. Let us accept their dictum, and since, even in our century, savants and artisans can attend to their labors only under the protection of guns, let us record the improvements in modern artillery by the German Krupp and the Frenchmen Reffye and De Bange, and the improvements in the rifle by Dreyse, Mauser, Remington, and Lebel. Let us not forget the invention of smokeless powder nor the use of the new explosive substances (such as gun-cotton, dynamite, panclastite, roburite, etc., each more terrible than the other) in the manufacture of frightfully destructive weapons, such as bombs, shells, and the torpedo of more recent invention.
All these discoveries have an importance which, it is true, varies in degree, but it seems to us very difficult to classify them according to importance; at all events, it is not we who shall endeavor to do it.
Our readers already suspect us of having a marked predilection for certain of these discoveries, and if, in such a classification, we should chance to place photography, for example, upon a par with telegraphy and telephony, railways and submarine boats, phonography and vaccine virus, they would perhaps accuse us of taking sides.
-- La Science en Famille
Patents and Monopolies
There is one great American industry which, though it was in a flourishing condition a few years ago, seems to have declined, until we hear comparatively little of it in these days. This industry had no particular location, but flourished in all parts of the country, and was carried on by smooth-tongued individuals, who drove about among the farmers, and swindled them in various and ingenious ways, too numerous to mention. In many of the tricks by which this was done, patented machinery of various kinds played an important part, though the facility with which the shekels of the guileless agriculturist were obtained by tricks involving the pretended purchase of chickens and similar things showed that machinery or patents were not considered by the operation to be a necessary feature of the business. Nevertheless, patent rights figured in these transactions sufficiently to give many of the farmers the idea that the whole patent business was nothing more nor less than a gigantic scheme to enable sharpers to swindle them. Inventors became in their eyes mere cormorants, or blood suckers, that the community would be well rid of, and now that it has become plainly apparent that something is the matter with the American farmer, he is inclined to lay it partly to patents and inventors.
A convention of farmers recently held in the West demanded that the rights of patentees in new inventions should be limited, and the time of their exclusive privileges shortened. There is among other classes of people, also, a disposition to attribute many of the real and imaginary evils which afflict us to the same cause, but that things would be helped by a curtailment of the present rights of inventors and patentees we cannot believe.
It is undoubtedly true that patents are in many instances made use of as a help in extorting money from the public, for which no fair return is made, but it by no means follows that relief would be obtained by striking at inventors. Plenty of the most oppressive monopolies with which we are afflicted are not founded upon patents at all, but would go right on, and flourish, were all patents abolished. With the facilities for forming monopolies which seem to be furnished by our social organization, it is difficult to mention any features of that organization which may not be made a means of increasing the power of monopoly. The greatest monopolies have their origin, not in the lack of legislation to protect the people, but in legislation which is intended to and does actually give an advantage to one citizen or class of citizens over others. Let the farmers and others who complain of the oppression caused by patent rights look about them, and see who it is that has all the good things of this life, without performing the least service of any kind in return therefor. When they have found these persons, and noted the basis upon which their privilege rests, there may be less disposition to complain of the comparatively small amounts made out of patented inventions. For it is always to remembered that the granting of a patent gives a monopoly of the one thing patented only, and that thing is a something which the world up to the time of the granting of the patent has been getting along without, and not only can, but will continue to get along without, unless terms can be made with the inventor which are mutually advantageous. The patenting of the reaping machine did not destroy the cradle nor render it any less effective as a harvesting implement. Any farmer who chose could continue to cradle his wheat, and would actually do so, unless he could obtain a reaping machine upon such terms as made it advantageous to him. And any farmer who chooses can hire men to bind his wheat instead of using a self-binding reaper, and every one of them will do it unless he can obtain the self-binding machine upon terms which are advantageous to him. He will not pay to the inventor and manufacturer of the machine all the advantage which he gains by its use, and it is plain that he would not do so, even if there were but one manufacturer of such machines, and therefore no competition, because, rather than do this, he will continue to do his harvesting in the old way, and will do so until the price at which the machine is offered enables him to profit by its purchase. The same principle will be found to apply to every patented invention. No patent gives to its holder a monopoly of any natural substance or product, nor of any opportunity for the application of wealth producing labor which existed before the patent was granted. It gives a monopoly of that only which before was not in existence, and which men not only can but will do without, unless they can obtain it by a payment to the inventor or his assigns of something less than the advantage to be gained by its use.
It must be plain, therefore, that for the privileges granted to an inventor by our patent laws, he musts return more than a full equivalent to the community in every case, except where his invention passes into the hands of a company powerful enough to monopolize its advantages, in which case the thing to contend against is the condition which favors the formation of such monopolies, not the inventor. In fact, it has been shown in numerous instances that new inventions constantly coming into use, and which it is fair to assume are stimulated by the security offered by the patent office, are the most effective check upon monopolistic operations, and gave the best means of successful competition with them.
-- American Machinist