ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1872
United States Patent Office
January 23, 1872
To the Senate and House of Representatives of the United States of America in Congress assembled:
The law requires the Commissioner of Patents to lay before Congress, in the month of January, annually, a report of all receipts and expenditures, a list of all patents granted, with name and subject-matter indexes, and a list of all patents extended during the preceding year, together with such other information on the condition of the Patent Office as may be useful to Congress or the public.
I submit the following report in compliance with this law:
1 -- Statement of moneys received
Amount received on applications for patents,
reissues, extensions, caveats, disclaimers,
appeals, and trade-marks $612,835.00
Amount received for copies of specifications,
drawings, and other papers 47,729.80
Amount received for recording assignments 18,151.66
2 -- Statement of moneys expended
Amount paid for salaries $422,316.02
Amount paid for photographing 45.693.30
Amount paid for contingent and miscellaneous
Tracings, etc. 472.85
Painting, glazing, varnishing and glass 3,001.20
Furniture, carpeting, etc. 10,827.05
Repairing furniture, carpenter's work,
and fitting up cases in model rooms 16,832.04
Plumbing and gas fitting 5,752.59
English patents 1,382.23
Paper hanging 1,057.49
Work on report 1,683.00
Preparing index of assignments 380.75
Refunding money paid by mistake 900.00
Pay of temporary employees 16,187.60
Miscellaneous items, viz:
Books for library, subscriptions to
journals, freight, ice, washing towels,
fees of judges in appeal cases,
withdrawals, purchase of horse and
carriage, and livery 11,031.41
3 -- Statement of the balance in the Treasury of the
United States on account of the patent fund.
Amount to the credit of the patent fund
January 1, 1871 $643,355.21
Amount of receipts during the year 1871 678,716.46
From which deduct expenditures for the year 1871 562,091.64
4 -- Statement of the business of the office for the year 1871
Number of applications for patents during the year 1871 19,472
Number of patents issued, including reissues and designs 13,033
Number of applications for extensions of patents 204
Number of patents extended 158
Number of caveats filed during the year 3,366
Number of patents expired during the year 2,654
Number of patents allowed, but not issued for want of
final fee 1,007
Number of applications for registering of trade marks 505
Number of trade-marks registered 486
Of the patents granted there were to
Citizens of the United States 12,511
Subjects of Great Britain 432
Subjects of France 30
Subjects of other foreign governments 60
5 -- The patents issued to citizens of the United States were
distributed among the citizens of the several States,
Territories, etc., as follows:
States, etc. No of Proportion of patents
Patents to population
Alabama 29 One to 34,400 inhabitants
Arkansas 23 " " 37,300 "
California 243 " " 2,300 "
Colorado Territory 15 " " 2,660 "
Connecticut 667 " " 806 "
Delaware 46 " " 3,727 "
District of Columbia 136 " " 970 "
Florida 10 " " 18,775 "
Georgia 73 " " 16,220 "
Idaho Territory 2 " " 7,500 "
Illinois 871 " " 2,916 "
Indiana 393 " " 4,277 "
Iowa 225 " " 5,387 "
Kansas 40 " " 9,110 "
Kentucky 125 " " 1,057 "
Louisiana 95 " " 7,655 "
Maine 197 " " 3,183 "
Maryland 240 " " 3,254 "
Massachusetts 1,386 " " 1,051 "
Michigan 383 " " 3,091 "
Minnesota 53 " " 8,302 "
Mississippi 48 " " 17,333 "
Missouri 248 " " 6,940 "
Montana Territory 2 " " 10,300 "
Nebraska 12 " " 10,250 "
Nevada 21 " " 2,125 "
New Hampshire 102 " " 3,121 "
New Jersey 496 " " 1,827 "
New Mexico Territory 1 " " 91,874 "
New York 2,954 " " 1,450 "
North Carolina 51 " " 21,000 "
Ohio 905 " " 2,945 "
Oregon 23 " " 4,000 "
Pennsylvania 1,543 " " 2,284 "
Rhode Island 184 " " 1,181 "
South Carolina 26 " " 27,139 "
Tennessee 104 " " 12,100 "
Texas 52 " " 15,742 "
Vermont 111 " " 3,000 "
Virginia 108 " " 11,342 "
Washington Territory 1 " " 23,955 "
West Virginia 42 " " 10,524 "
Wisconsin 227 " " 4,646 "
Wyoming Territory 3 " " 3,036 "
Persons in the Army and Navy 6
6 -- Comparative statement of the business of the office
from 1837 to 1871, inclusive
Years Applica- Caveats Patents Cash Cash
tions Filed Issued Received Expended
1837 435 $29,289.08 $33,506.98
1838 520 42,123.54 37,402.10
1839 425 37,260.00 34,543.51
1840 765 228 473 38,056.51 39,020.67
1841 847 312 495 40,413.01 52,666.87
1842 761 391 517 36,505.68 31,241.48
1843 819 315 531 35,315.81 30,766.96
1844 1,045 380 502 42,509.26 36,244.73
1845 1,246 452 502 51,076.14 39,395.65
1846 1,272 448 619 50,264.16 46,158.71
1847 1,531 553 572 63,111.19 41,878.35
1848 1,628 607 660 67,576.69 58,905.84
1849 1,955 595 1,070 80,752.78 77,716.44
1850 2,193 602 995 86,927.05 80,100.95
1851 2,258 760 869 95,738.61 86,916.93
1852 2,639 996 1,020 112,656.34 95,916.91
1853 2,673 901 958 121,527.45 132,869.83
1854 3,324 868 1,902 163,789.84 167,146.32
1855 4,435 906 2,024 216,459.35 179,540.33
1856 4,960 1,024 2,502 192,588.02 199,931.02
1857 4,771 1,010 2,910 196,132.01 211,582.09
1858 5,364 943 3,710 203,716.16 193,193.74
1859 6,225 1,097 4,538 245,942.15 210,278.41
1860 7,653 1,084 4,819 256,352.59 252.820.80
1861 4,643 700 3,340 137,354.44 221,491.91
1862 5,038 824 3,521 215,754.99 182,810.39
1863 6,014 787 4,170 195,593.29 189,414.14
1864 6,972 1,063 5,020 240,919.98 229,868.00
1865 10,664 1,937 6,616 348,791.84 274,199.34
1866 15,269 2,723 9,450 495,665.38 361,724.28
1867 21,276 3,597 13,015 646,581.92 639,263.32
1868 20,420 3,705 13,378 684,565.86 628,679.77
1869 19,271 3,624 13,986 693,145.81 486,430.78
1870 19,171 3,273 13,321 669,476.76 557,149.19
1871 19,472 3,624 13,033 678,716.46 560.595.08
A plate is added showing graphically the business of the office from 1836 to the present time, in such form as to represent to the eye the comparative business of the different years.
The name and subject-matter indexes, giving an alphabetical list of patentees, with their places of residence, are herewith, as part of this report, submitted.
It will be seen by the statements of receipts and expenditures that the Office has received and placed in the Treasury of the United States during the year $116,624.82 more than its entire expenditures. Of the items of expenditure, $47,885.37 was paid to copyists of drawings, to the photo-lithographers, and for paper for the reproduction of drawings of patents issued prior to July 1, 1869. This is an expenditure not properly chargeable to the current expenses of the office, and would, if added to the balance above stated, make the real excess of receipts over the current expenses for the year, $164,510.19.
The reproduction of the past drawings is absolutely necessary to the proper management of the business of the Office, and is also a matter of great interest and profit to inventors and manufacturers. When once done, the expense of the work will cease, while the Office and the country will forever reap the benefits resulting from it. I would respectfully recommend that liberal appropriations be made for this work, that it may be completed as soon as possible.
The work of the Patent Office will necessarily increase to some extent, although the number of applications for patents may be substantially the same from year to year. Every application for a patent placed on file becomes a reference on which to reject subsequent applications for patents on the same improvements. Each year adds about twenty thousand to the number of these applications, which necessarily increases the clerical and examining labor of the Office.
The joint resolution of January 11, 1871, abolished the old form of annual report of the Patent Office. This resolution was passed in the belief that there was very little public demand for or interest felt in those reports. This belief, I think, was not well founded. There was a wasteful number of those reports printed, and they were, without doubt, injudiciously distributed. The consequence was that the larger portion of them fell into the hands of persons for whom they were not adapted, and soon found their way to rag-dealers and second-hand book stores. The demand, however, of inventors, mechanics, manufacturers, and others, for accurate information of what is being done in the Patent Office is great and increasing. The old annual reports were unsatisfactory for two reasons; first, because they were always about two years behind date; and, second, because, in furnishing necessarily only ill-advised abstracts of the specifications and drawings, they seldom gave full information of what was covered by any patent, and consequently were very often misleading and deceptive.
These reports, however, with all their defects, were read and studied with great avidity by inventors and mechanics throughout the country, and the perusal of them has undoubtedly resulted in giving to the world very many valuable inventions and improvements. Unless a proper substitute is provided, I am of the opinion that their abolition will cause an abatement of interest in improvements and a diminution of the number of inventions. The inventive genius of one is stimulated and encouraged by seeing the results of the ingenuity of others. One man makes an important invention and obtains letters-patent therefor. If a correct knowledge of this patent can soon be placed in possession of five hundred other ingenious men, many valuable improvements will be suggested and patented, and the public will obtain a comparatively perfect machine, in place of the crude or less perfect production that may have come from the hands of the first inventor. The records of the Patent Office will show that but comparatively few radical inventions have been practicable or profitable as first invented. It is only after the first thought has been embodied and presented to the world, and improvements to adapt it to the various uses for which it is calculated have been invented, that it becomes of most profit to the original inventor or most useful to the public. The value and importance of giving promptly a wide circulation to correct information of the character of all inventions and improvements patented can hardly be overestimated.
The object of the patent laws, as expressed in the Constitution, is, "to promote useful arts." This is done, in part, by giving inventors a legal monopoly of their inventions for a limited time; but it is of scarcely less importance that each inventor in the country should be promptly, and at small expense, furnished with a knowledge of what all the others are doing. Without such knowledge no one of them can pursue his investigations intelligently or economically. In any one of the useful arts, a knowledge of the present state of that art, of what others have done in it, is essential and necessary to any person engaged in improving it. To furnish this knowledge so far as it is made a matter of record by the Government, is clearly within the scope of the end sought by the establishment of the Patent Office.
In abolishing the old form of annual report, which was very unsatisfactory and expensive, it is questionable whether the law has provided an adequate substitute.
The joint resolution of January 11, 1871, provides as follows:
That the publication of the abstracts of specifications and of the engravings heretofore accompanying the annual report of the Commissioner of Patents be discontinued after the publication of that portion of the report for eighteen hundred and sixty-nine for which the plates have already been prepared; and that in lieu thereof, the Commissioner be authorized to have printed, for gratuitous distribution, not to exceed one hundred and fifty copies of the complete specifications and drawings of each patent subsequently issued, together with suitable indexes, to be issued from time to time, one copy to be placed for free public inspection in each capitol of every State and Territory; one for like purpose in the clerk's office of the district court of each judicial district of the United States, except when such offices are located in State or Territorial capitals, and one in the Library of Congress, which copies shall be taken and received in all courts as evidence of all matters therein contained, and shall be certified to under the hand of the Commissioner and seal of the Patent Office, and shall be taken and received in all courts as evidence; said copies not to be taken from said depositories for any other purpose than to be used in evidence; and the Commissioner of Patents is hereby authorized and directed to have printed such additional number of copies of specifications and drawings, certified as hereinbefore provided, at a price not to exceed the contract price for such drawings, for sale as may be warranted by the actual demand for the same; and the Commissioner is also hereby authorized to furnish a complete set of such specifications and drawings to any public library which will pay for binding the same into volumes to correspond to these in the Patent Office, and for the transportation of the same, and which shall also provide proper custody for the same, with convenient access for the public thereto, under such regulations as the Commissioner shall deem reasonable.
By this joint resolution one copy of each of the specifications and drawings of all patents issued will be placed for free public inspection in the capitol of each State and Territory, and one copy for like purpose in the clerk's office of the district court of each judicial district, where said clerk's office is not at the capitol of the States and Territories, two copies each to a few of the States, and three copies each to a still less number. These State and district court libraries are open only during the business hours of the day, and while they will be very convenient and useful for the courts and for a limited number of attorneys, yet they will prove valueless as far as the great body of mechanics and inventors of the country are concerned. They are practically "sealed books" to nearly all of the class most interested in them, and whose perusal of them would most benefit the public. The resolution also provides that these specifications and drawings shall be furnished to such public libraries as will pay for binding and transportation. The binding will cost the Government about one hundred and thirty dollars a year for each library supplied under this resolution. This provision will exclude them from nearly all places except the larger cities. The only remaining provision for giving inventor, mechanics, and others any information of patented inventions is found in the clause that directs the Commissioner to have printed additional copies of specifications and drawings for sale to persons desiring to purchase; and subsequent legislation fixes the minimum price at which the specifications and drawings may be sold at ten cents per copy. This would make a full set, unbound, for one year, cost about thirteen hundred dollars, a sum which would be paid by very few.
Supposing that the larger portion of inventors, mechanics, manufacturers, and others, who are interested in the work of the Patent Office, would each feel a special interest only in the particular branch of industry in which he is engaged, the Office has caused a classified subject matter index to be prepared, for free distribution. This index classifies the various subjects of inventions under one hundred and seventy-six different heads, according to the departments of industry to which they relate. By consulting this index persons are enabled to order the complete copies of all specifications and drawings of patents belonging to the classes in which they feel special interest. This arrangement has been in operation only since the 1st of September last, and is not very generally understood. It results, however, in the sale of about one thousand copies per week. The sale would be largely increased by a reduction of the price to five cents per copy, which would pay the cost. I would recommend such reduction to persons subscribing for an entire class. For single copies the price should remain as it is. I would further recommend that where parties desire to purchase copies of the specifications and drawings of all the patents issued, the Commissioner be authorized to sell them at net cost. Still there would remain unsupplied a large demand for prompt, brief, and general information, in a compendious form, of all the patents issued and of all important decisions and changes affecting the Office practice. To meet this demand to some extent, the Office is now publishing, under the authority of section 20 of the act of July 8, 1870, a Weekly Official Gazette, in which is given a name, index of the patentees, and a subject-matter index of all patents issued during the current week, a list of the designs patented and of the trade-marks registered, a notice of all pending applications for extensions and of extensions granted, a transcript of the claims of all patents issued, a notice of all disclaimers filed, all important decisions of the Commissioner of Patents, current decisions of the courts in trade-mark and patent causes, all changes in the rules of Office practice, modifications of patent law, special legislation affecting existing patents, and other official matter of interest to persons having business with the Patent Office. This is as far as the Commissioner feels authorized to go, under existing laws. All that seems necessary to enable this Official Gazette to supply the entire demand for information still unprovided for, is to authorize the Commissioner to add to it a well-considered abstract of the specifications and drawings upon which patents are issued. The subscription price of the Gazette has been fixed at five dollars per annum. It is believed that the addition of the abstract of the specifications and drawings will very soon so increase its circulation as to make it entirely self-sustaining without increasing the subscription price. Investigations and experiments are now being made that will very soon enable me to lay before the proper committees the additional cost of such additional work.
Under the provisions of section 14 of the patent act, I have sought to dispose of the models of rejected cases, by permitting regularly incorporated institutions of learning to select from among them such as they could make useful in teaching the practical sciences. The models thus selected have been carefully invoiced and receipted for by the institutions taking them, to be held subject to the order of the Commissioner of Patents. In this manner, about twelve thousand models of rejected cases have been disposed of, and a large number of colleges and polytechnic schools have been supplied with a valuable means of instruction. Any one of these models can be recalled, should it at any time be needed by the Office, or by the courts in the trial of patent causes. The act approved July 8, 1870, known as the Patent Act, has been carefully tested by fair trial, and in most particulars has been found sufficient and satisfactory. In some features, however, I would respectfully suggest that it should be amended.
Section 23 provides that every patent shall date as of a day not later than six months from the time the applicant or his agent was notified of its allowance. The same section further provides that the applicant may have, after said notice is sent him, sixth months in which to pay his final fee. The Office has not been in the habit of incurring the expense of having the drawings and specifications printed and prepared for issue until the final fees are paid, because, frequently the application is abandoned after notice of allowance. It takes about two weeks to reproduce the drawings and specifications and prepare a case for issue. But applicants very often delay paying their final fees until the very last day of the six months allowed by statute for issuing the patent. The sections should be so amended as to require the final fees to be paid in at the Patent Office, or if the money be paid elsewhere, as provided in section 69, to require the proper evidence of such payment to be presented to the Office, at least two weeks prior to the latest date allowed for the patent to issue.
Section 24, considered in connection with section 30, gives to citizens of all governments the same rights and privileges before the Patent Office as are granted to citizens of the United States.
The spirit of this section is praiseworthy, and to the citizens of countries whose governments reciprocate with similar favors, it is unquestionably just. In other cases, however, the wisdom of this provision is by no means clear; citizens of the Dominion of Canada, under our general law, can obtain patents here on precisely the same terms as citizens of the United States; while the latter must have resided in Canada one year before they can apply for patents at the Canadian office.
The effect of this law, practically, is to exclude our citizens from obtaining patents in Canada; and often the result is disastrous to our inventors. The inventor, for instance, of a process or a machine for making a given article of manufacture, may suffer by the practice of the invention across the boundary line between the two countries by parties who furnish the manufactured article in our market at such rates as to be ruinous to the inventor. There can be no protection against this practice except in cases in which a patent can be obtained on the article of manufacture itself as well as upon the process or upon the machine by which it is made. But where the article itself is old, and therefore not patentable, the inventor of the new process or machine for making it is, by the means indicated, left practically without protection. It has been suggested in various quarters that, with a view to furnishing the Canadian government a notice for modifying their practically prohibitory law, our own law should be so amended as to limit the rights granted by the sections above referred to, to the citizens of such foreign countries as accord to the citizens of the United States the same protection as is granted to their own citizens. I think, however, that the wiser course may be to open correspondence with the Canadian authorities, through the proper diplomatic channels, with a view to representing the nature of the injustice to which our inventors are now subjected; and it is hoped that when the matter is thus brought home to the attention of the Canadian people, the proper remedy will at once be supplied. I withhold any special recommendation in the premises to await the result of such correspondence.
Section 25 provides that where a patent is first obtained in a foreign country, and afterwards here, the patent here shall expire at the same time as the foreign patent. This law is just and equitable in cases where the applicant is himself a citizen of a foreign country. In such cases his monopoly here should cease when it ceases at home. But in cases where the patentees are citizens of the United States, I see no reason for the rule. In most of the countries of Europe a patentee need not necessarily be an inventor. They will grant patents as well to the first man who imports an improvement as to the one who invents it. If the importer is the first to apply, he alone becomes the patentee. Hence it is frequently the case that persons other than the inventors will seize upon an invention the day it is patented here, and rush to Europe in advance of the inventors and secure to themselves the foreign rights. This fact often compels our inventors to secure their patents abroad first, if they would secure them at all. But under certain contingencies the foreign patents may expire in two, three, or five years. Under our law at present, their patents obtained here must expire at the same time.
Section 36, providing for the recording of assignments of patents, or territorial interests therein, I think, should be so amended as to provide in the same manner for the recording of licenses to manufacture or use under the patent. A patentee may cover the country all over with licenses to manufacture and sell under his patent, without having the records of the Office show that any portion of his patent, or any rights under it, have been conveyed. A person in purchasing an interest in a patent has no means but the veracity of the patentee for learning to what extent the patent is involved by licenses. For the protection of persons buying interests in patents all conveyances of any interests or rights of any kind should be made a matter of record, so that the Patent Office may be able to furnish reliable abstracts of title.
Section 48 provides that parties, except parties to interferences, if dissatisfied with the decision of this Commissioner, may appeal to the Supreme Court of the District of Columbia, sitting in banc. I see no good reason for making an exception in interference cases. If other cases are appealable, there is no reason why interference cases should not be. But I would respectfully suggest whether this whole matter of appeals from the Commissioner to the courts is not an anomaly in our Government. It is true that intricate questions of law are arising and being discussed daily in the Patent Office, and there is a show of propriety in permitting appeals to the courts on these questions of law; but I confess I can see no good reason for permitting such appeals on questions of fact. When the facts have been examined by a principal examiner, by the board of examiners-in-chief, and by the Commissioner in person, making three separate examinations by three separate tribunals, and all of these examiners supposed to be experts, and all agree as to what are the facts, an appeal to a court composed of able judges, but men not pretending to any expert knowledge of the subject matter presented to them, it seems to me is not only without reason, but against reason. I would recommend that section 48 be repealed, and that in its stead a section be introduced, authorizing appeals to the Supreme Court of the District of Columbia, sitting in banc, from the decisions of the Commissioner on questions of law; and that such appeals be in the nature of writs of error. If such amendment should be made, sections 49, 50, 51 and 52 should also be amended to correspond.
Section 53 provides that in applications for reissue the model and the drawing may be amended each by the other, but that neither shall be amended by the specification. This section works great hardship to inventors in many cases. I think it should be so amended as to authorize the Commissioner in person to permit, in applications for reissue either the specification, drawings, or models to be amended, so as to show what is already clearly shown in either one of them. The privileges granted by this section are, perhaps, more often misused than those of any other section in the patent law. The object of the section is to provide for the correction of errors that have arisen by inadvertence, accident, or mistake, and for such purpose it is very just and proper. Almost all applications under this section are for the purpose of obtaining broader claims than were originally asked for or granted. It not infrequently happens, however, that a patentee, finding that some other person has made a valuable improvement upon his invention, rushes back to the Office to secure a reissue of his patent in such form as to cover the later improvement. The Office, not knowing the facts in the case, and finding it possible so to construe the original application as to cover the improvement, the desired claim is granted, thereby giving the patentee a monopoly of what is really the invention of another. To guard against this species of fraud, I would suggest that section 53 be so amended as to require that a notice of all such applications for reissues as seek to enlarge the original claim be published in the Official Gazette for at least four weeks previous to the day set for examining the same; and that opposition be allowed as in extension cases.
It often happens that by a misapprehension of the law, or the facts, parties in good faith make a joint application for a patent when only one was the real inventor; or the two were inventors of different parts so distinct as to be divisible, but the Office, not learning these facts in an ex parte examination, grants a patent to such parties jointly. Under the rulings of the courts such patents are worthless, giving no protection, and the inventor is without remedy. I would suggest that section 53 be further amended so as to make a misjoinder of parties in an application where no fraud was intended a good ground for reissue.
Under the law as it now stands, the courts hold that a patentee surrendering his patent for reissue, by such act of surrender relinquishes all his rights of action that may have accrued against infringers of the surrendered patent. This often works hardships and wrongs against inventors. I think it would be just to the patentee and equity to all concerned if the law could be so amended as to save rights of action in such cases where the claim infringed is substantially the same in the surrendered patent as in the reissue.
Section 64 requires that a notice of all applications for extension shall be published for at least sixty days in one paper in the city of Washington, and in other papers in the section of the country most interested adversely to the extension. There is no way in which the Office can determine what section of the country is most interested adversely to the extension of the patent. The practice has always been to advertise in the section where the patentee resides; but in a majority of cases probably that is not the location where those opposed to the extension would be most likely to see the notice. It very often happens that patents are extended before parties desiring to oppose know of the pendency of the application. There should be a single paper designated by law in which all notices of applications for extensions of patents are published. That would enable any person to learn of the pendency of such application. I would recommend that section 64 be so amended as to require, in lieu of the publication now demanded, that all notices of applications for extensions be published in the Official Gazette of the Patent Office for at least six weeks prior to the day set for hearing. The Official Gazette is being taken by nearly every patent attorney and solicitor of patents in the country, and by very many inventors and manufacturers. Such publication would be certain in almost every case to reach all persons interested adversely to a proposed extension, and the saving thus effected in the expense of advertising would do something toward paying the cost of the Official Gazette. As the Patent Office is expected to be self-sustaining, it should be relieved of needless expense.
One half of the fee in extension cases is by law required to be paid upon filing the application, and the balance upon granting the certificate of extension. The decision refusing or granting the extension is required to be made prior to the expiration of the original term of the patent. As the decision to extend carries the monopoly, the patentee frequently lets the certificate lie in the office for months and years, and sometimes for the whole term of the extension, without paying his final fee. If he needs the certificate of extension at any time to prosecute infringers, he then takes it; and as it bears even date with the expiration of the original term, it covers the whole term of the extension. If he should not need the certificate for such purpose, he may permit the extended term to expire and never pay his final fee. I would suggest that section 66 be so amended as to authorize the Commissioner to withhold and cancel certificates of extension in cases where the final fees are not paid within thirty days of date of notice that extension has been granted.
Section 71 provides --
That any person who, by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics; any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the duty required by law, and other due proceedings had the same as in case of inventions or discoveries, obtain a patent therefor.
I am clearly of the opinion that the present mode of patenting designs is radically wrong, injurious to real inventors and the public, and not calculated "to promote the useful arts." Under section 71, the Office issues patents for mere changes in form or color, without regard to construction, function, or utility. This class of patents has been to some extent subversive of the fundamental object of the patent law. Very many design patents, which cannot, under the law, be denied, are a fraud upon the public. A man applies for a patent on a cultivator, or hammer, or any other useful tool or device, and finding himself fully anticipated in every principle and useful feature of his invention, abandons his application and at once applies for a design patent for the same thing. This application he bases upon some peculiarity of form or color, having nothing whatever to do with the merits or demerits of the article itself; and not being anticipated in these respects, a patent is granted for the new design. The patent gives him no protection whatever, except as to the form or color upon which it is based. He, however, obtains from the Office the right to stamp the word "Patented" upon the article he is manufacturing, and thereby deceives the public, wrongs inventors, and brings patented articles into disrepute. Patents have greatly increased in popularity within the last few years, and manufacturers regard it an advantage to have the right to affix the word "Patented" upon the products of their shops and factories. This fact has led to a very great abuse of the privileges granted by the section authorizing patents for designs. The protection of the public, and of true inventors, alike demands such modifications of the law as to distinguish widely between designs and inventions. Designs are in the field of taste, beauty, ornamentation; while inventions have to do with utility, resulting from new constructions and combinations. Designs look to esthetic effects, inventions to economical productions. Each has its proper sphere, but so distinct that they ought not to overlap each other in the Office practice. Each should be protected, but by instruments and marks easily distinguishable by the public. I therefore recommend such modifications of the patent act as will place designs upon substantially the same basis as trade-marks. If a design is new, let the applicant have a certificate of registry, with authority to mark his productions "Registered" instead of "Patented." The fact is that a very large proportion of designs are used merely and solely as trademarks. A man adopts a peculiar form or color for his articles of manufacture, that they may be known as his in the market; that he and his place of business may be pointed out by the peculiarity of the color or conformation. Such a modification of the law, I believe, would furnish ample protection to designs, and, in fact, would enable the Office to issue certificates of registration in many cases where, from public policy, it now refuses design patents. I earnestly recommend early legislation on this subject.
By section 77, the right to apply for registration of trade-marks is limited to citizens of the United States and to residents of such foreign countries as "by treaty or convention" afford similar privileges to citizens of the United States. This restriction excludes residents of Canada and England, and perhaps other countries, which by statute, in the absence of "treaty or convention," afford the right of registry to citizens of the United States. I therefore recommend that this section be amended by striking out the limiting phrase, "by treaty or convention."
The discussion that has been going on in England during the past year, on the comparative merits of the English and American patent systems, has excited considerable interest in this country. The English system finds a few honorable and able advocates here, but a very large majority of inventors, and others intelligent upon the subject, seems to be ardently attached to our own system. The American system secures a preliminary examination by experts, on the question of novelty, and the issue of the patent is made dependent upon the results of such examination. Consequently, the patent, when issued, carries with it a presumptive right to its claims, and immediately has a value in the market; the amount of value depending principally upon the importance of the invention covered by the claims. The strength of the presumption in favor of the patent will, of course, depend upon the reputation of the Patent Office may have for making honest and thorough preliminary examinations.
In England, patents are granted to every applicant, without any inquiry into the question of novelty or usefulness, and the patent is utterly without value until the patentee has, by litigation in the courts, established the fact that the invention to which it relates is new and useful. Unless an inventor is able to pay court costs, and liberal fees to attorneys and experts, he is much richer without a patent than with one. A poor inventor, under the English system, is entirely at the mercy of capitalists, and must, in general, assign a controlling interest in his patent to secure the means to establish even a presumption in its favor.
The objections urged against the American system, so far as there is any validity at all in them, are chargeable, I believe, against the mode in which the system is organized and operated, rather than against the system itself. The more thorough and searching the preliminary examination, the more valuable will be the patent when issued. The better the organization of the Office to secure such examinations, the greater will be judicial and public confidence in the validity of patents. To secure the best possible organization for this purpose is a matter of the highest consideration. That the present organization of the examining corps has some radical defects, cannot be denied. That these defects can, in a great measure be remedied, I feel very confident. On this subject, I propose soon to address a communication to the Honorable Secretary of the Interior, and, if it meets his approbation, it will probably be forwarded to Congress, with such suggestions as he may be pleased to make.
Protection to inventors is encouragement to every branch of industry. Such protection has already placed our country far in advance of all others in the development and adaptation of labor-saving machinery. In addition to this class of wealth which inventors have contributed to the country, they have paid, directly, the entire cost of our patent system, and three-fourths of a million dollar in excess. They do not now ask that the fees shall be reduced, nor that the excess shall be returned, but they do demand that the organization of the Office shall be such as to do better work, and that the force be made sufficient to do it more promptly.
On these matters I would recommend cautious but liberal legislation.
M. D. Leggett
Commissioner of Patents
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