Patent Materials from Scientific American, vol 80 new series (Jan 1899 - Jun 1899)
Scientific American, v 80 (ns), no 19, p 300, 13 May 1899
Early Forms of Letters Patent
The forms which letters patent for inventions have taken at different stages in the history of this country are various and interesting. In colonial times their form was that of a grant directly from the legislative bodies. There were no general patent laws, but a separate act was passed for each patent, and each act was conditioned to fit the merits of the particular invention which it was to protect. These acts usually recited that, whereas the petitioner had made a certain invention, which was esteemed to be valuable; it was, therefore, enacted that he should have certain exclusive rights in the invention for a specified time and under certain conditions.
The earliest patents contained no description of the invention except its title, and the identify of the invention had to be established by extraneous evidence. Some of the later colonial patents contained quite complete statements of the object and mode of operation of the invention, but there was no detailed description of the invention. The first patent to contain a specification was granted in 1712 to John Nasmyth.
The term of the grant varied according to the importance of the invention, but was usually fourteen years, in conformity to the British system. Conditions were frequently attached to the grant. For instance, the General Court, or legislature, of the Massachusetts Bay Colony in 1646 granted a patent to Joseph Jenkes for "manufactures of engines of mills to go by water for speedy dispatch of much work with few hands," enacted that "no other person should set up or use any such new invention or trade for fourteen years," and imposed the conditions that the court should have power "to restrain the exportation of such manufactures and the prices of them to moderation if so required."
Patents granted under all the various patent laws of the United States have had the caption "The United States of America," followed by the phrase "To all to whom these presents shall come," and have closed with the usual attestation: "In testimony whereof I have hereunto set my hand and caused the seal --- to be affixed," etc.
Under the act of 1790 the patent recited that "Whereas the applicant has invented" certain things and the invention appears to be "useful and important," ... "These are, therefore, ... to grant" to the said inventor, "his heirs, administrators, and assigns, for the term of fourteen years, the sole and exclusive right and liberty of using and vending to others: the said invention. The patent contained only the title and purpose of the invention. There was no specification or drawing forming a part of the document. The statement that the invention appeared to be "useful and important," was to indicate that the invention had been examined by the Secretary of State and the Secretary of War as required by the act. Following the usual clause of attestation, the patent was signed by the President, George Washington, and by the Secretary of State, who at that time was Thomas Jefferson. The seal used was that of the United States. At the foot of the patent was a certification of the Attorney-General, Edmund Randolph, that he had examined the patent and found it conformable to the patent act. The conjunction "and" which appears before "assigns" was changed to "or" in the patents granted under the later acts.
Under the law of 1793 the patent recited that "Whereas" the petitioner "hath alleged that he has invented a new and useful improvement in" (giving the title of the invention), has "made oath." etc., has paid the fee and has "presented a petition to the Secretary of State: ... "that a patent might be granted," ... "These are therefore to grant to the said" inventor, "his heirs, administrators, or assigns, for the term of fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used the said improvement, a description whereof is given in the words of the said" inventor "himself in the schedule hereunto annexed, and made a part of these presents." Then followed the clause of attestation and the signatures of the President and Secretary of State. As before, the patent was sealed with the seal of the United States and was certified by the Attorney-General to be conformable to law.
[Illustration entitled "An Early United States Patent Signed by Washington]
It will be noticed that there was no statement that the invention had been examined as to novelty, as in the patents granted under the prior act, for, under the act of 1793, the patents were granted as a matter of right upon petition to the Secretary of State, the same as is done under the British system. Under the act of 1790 the patent did not refer to an oath, as no oath was required, but the patents granted in pursuance of the act of 1793, it will be observed, recited that the inventor had made an oath to his inventorship.
The patent had attached to it and forming a part of it a description of the invention, usually in the inventor's handwriting. A drawing was also attached, if two copies of it had been furnished by the applicant, but if only one had been furnished, it was retained in the records of the State Department.
About 1807 the practice was begun of reciting the advantages of the invention at the close of the description, and from 1812 it became customary to close with a paragraph which stated more particularly what the inventor regarded as constituting his invention.
There was no substantial charge in the form of the grant of United States patents from 1793 until 1836, except that the language was more conservative, to make it more apparent that the statements of fact were only those of inventors and not of the officials.
The act of 1836 returned to the American system which was inaugurated by the act of 1790, and required that the invention should be examined as to its merits before a patent should issue. It also established the Patent Office as a bureau of the Department of State and created the office of Commissioner of Patents. A seal for the Patent Office was also provided. The patents issued under this act recited the allegations of the petition and oath, the payment of the fee and presentation of the petition. The grant was in the same term as those used under the act of 1790, and the patent had, as forming a part thereof, a description and drawing of the invention. This act required a particular statement of the extent of the invention, and claims that were more or less crude appeared at the close of the specification. The patent was signed by the Secretary of State, countersigned by the Commissioner of Patents and sealed with the seal of the Patent Office.
When the act of 1849 established the Interior Department and transferred the Patent Office thereto the signature of the Secretary of the Interior was substituted for that of the Secretary of State. Except for the change in the term of the patent from fourteen to seventeen years in 1861, the form from 1836 to 1871 was without change.
The form used at present in granting patents is the one which was adopted in 1871. In this form the previous form is condensed and the statement as to the examination is added.
The grant closes with the clause of attestation and signature of one of the Assistant Secretaries of the Interior, the signature of the Commissioner of Patents, and the seal of the Patent Office. The designation of one of the Assistant Secretaries of the Interior to sign the patents was authorized by an act approved February 18, 1888.
The description and drawing set forth the subject matter of the invention with great clearness, and the claim introduced by the act of 1836 has now become so vital a feature that it is called the life of the patent. While the claim must be supported by the description, the extent of the monopoly depends entirely upon the claim, and the choice of its language is so delicate a matter that the Supreme Court of the Untied States has said "claim of a patent, particularly if the invention be at all complicated, constitutes one of the most difficult legal instruments to draw with accuracy."
Edwin J. Prindle
United States Patent Office
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