Annual Report of the Commissioner of Patents for the Year 1873
To the Senate and House of Representatives of the United States of America in Congress assembled:
I submit the following as my annual report for the year ending December 31, 1873, in compliance with section 9 of the patent act.
1. Statement of moneys received Amount received on applications for patents, reissued, extensions, caveats, disclaimers, appeals, and trademarks $626,170.00 Amount received for copies of specifications, drawings, and other papers 67,171.32 Amount received for recording assignments 9,850.45 __________ 703,191.77 ========== 2. Statement of moneys expended Amount paid for salaries $464,277.99 Amount paid for photolithographing current issues 38,110.55 Amount paid for illustrations for Gazette 44,110.55 Amount paid for photolithographing back issues. 52,485.30 Amount paid for contingent and miscellaneous expenses, viz: Advertising $3,530.83 Stationery 16,786.03 Painting, glazing, varnishing, paper hanging, etc. 694.71 Furniture, carpeting, etc. 6,165.19 Fitting up cases in model rooms, carpenters' work, and repairing furniture 14,018.80 Plumbing and gas fitting 812.65 English patents and foreign periodicals 2,448.50 Work on reports and indexes 1,670.00 Refunding money paid by mistake 1,045.00 Hardware 1,427.85 Pay of temporary employees 25,856.62 Miscellaneous items, viz: Books for library, subscriptions to journals, freight, ice, washing towels, awnings, withdrawals, repairing carriage and harness, keeping horse, etc. 19,876.95 __________ 94,333.13 __________ Total 691,178.98 ========== 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, 1873 $794,111.42 Amount of receipts during the year 1873 703,191.77 ____________ Total 1,497,303.19 From which deduct expenditures for the year 1873 691,178.98 ____________ Balance January 1, 1874 806,124.21 ========== 4. Statement of the business of the Office for the year 1873 Number of applications for patents during the year 1873 20,414 Number of patents issued, including reissues and designs 12,864 Number of applications for extension of patents 273 Number of patents extended 233 Number of caveats filed during the year 3,248 Number of patents expired during the year 4,482 Number of patents allowed but not issued for want of final fee 2,783 Number of applications for registering of trademarks 534 Number of trademarks registered 492 Of the patents granted there were to Citizens of the United States 12,371 Subjects of Great Britain 341 Subjects of France 64 Subjects of other foreign governments 88 ______ 12,864 5. Number of patents issued by the United States Patent Office to residents of the different States and Territories from January 1, 1873, to December 31, 1873 (The proportion of patents to population is shown in last column) States, etc. Number of One to Patents Every Alabama 43 23,185 Arkansas 11 44,042 California 251 2,232 Colorado Territory 8 4,983 Connecticut 622 864 Dakota Territory 2 7,090 Delaware 40 3,125 District of Columbia 109 1,208 Florida 8 23,468 Georgia 53 22,341 Idaho Territory 1 14,999 Illinois 844 3,009 Indiana 311 5,404 Iowa 246 4,859 Kansas 75 4,859 Kentucky 114 11,590 Louisiana 96 7,512 Maine 139 4,510 Maryland 191 4,088 Massachusetts 1,379 1,057 Michigan 356 3,326 Minnesota 110 3,907 Mississippi 55 15,053 Missouri 288 5,975 Montana Territory 3 6,835 Nebraska 28 4,393 Nevada 19 2,236 New Hampshire 127 2,506 New Jersey 614 1,475 New Mexico 1 91,874 New York 2,826 1,551 North Carolina 58 18,472 Ohio 832 3,203 Oregon 19 4,785 Pennsylvania 1,639 2,148 Rhode Island 167 1,301 South Carolina 25 28,224 Tennessee 105 11,986 Texas 109 7,510 Utah Territory 8 10,848 Vermont 87 3,914 Virginia 76 10,120 Washington Territory 6 3,992 West Virginia 42 10,541 Wisconsin 217 4,869 Wyoming Territory 2 4,559 United States Army 8 3,750 United States Revenue Marine Service 1 -- For the United States at large 12,371 3,116 6. Comparative business of the Office from 1837 to 1873, 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 1872 18,246 3,090 13,590 699,726.39 665,591.36 1873 20,414 3,248 12,864 703,191.77 691,178.98
By the foregoing exhibit it will be seen that the entire receipts over the expenditures during the year 1873 were $12,012.79. Of the expenditures $52,485.03 was for photolithographing back issues, and $35,000 of the amount paid for salaries was for the tracing of back issues, making $87,485.03 of the expenditures which were no part of the proper current expenses of the year; and, adding the $12,012.79 makes the excess of receipts over the proper expenses of the Office for the year 1873, $99,497.82.
It is proper further to state that the expenditure for photolithographing current issues, $38,110.55, is made an expense of the Patent Office during this year for the first time. Heretofore the appropriation for this work has been made to the Congressional Printer; consequently the expenditure has not before appeared in the accounts of the Commissioner of Patents.
The expenditure in the reproduction of the drawings of the back issues of patents by the process of photolithographing is, in my opinion, a very wise use of the public money; and the amount appropriated for this purpose ought to be increased, that the work may be finished at an early day. This expenditure will in a few years all come back to the Treasury with considerable gain.a When completed it will reduce the work of examining at least fifteen percent, and the sales of the copies will ultimately more than cover the entire expense of their production.
It will also be seen from the foregoing tables that the number of applications is somewhat larger than the preceding year, while the number of patents granted is a few less. The decrease in the number of patents arises partly from a more thorough examination, and partly from the fact that some applications are not being prosecuted to issue, because of the disturbance in manufacturing caused by financial disturbances.
The act approved July 8, 1870, known as the patent act, embraces all the law now in force pertaining to patents. An experience of three years and a half has shown that the law is defective in some particulars, and additional legislation seems necessary.
The receipts of the Office amount to nearly three quarters of a million dollars annually, all of which is received in small amounts, from ten cents to fifty dollars. This requires the employment of a careful and competent financial clerk. No such officer is provided by law, and it has been customary to detail a clerk of class four for such purpose, and the Commissioner is responsible upon his bonds for the accuracy and integrity of such clerk. I would respectfully recommend that section four of said act be so amended as to provide for one less clerk of class four and for the appointment of a financial clerk, at a salary of two thousand dollars per annum, and require him to give bonds in the sum of five thousand dollars.
The accumulation of models makes the question of room, wherein they can be deposited, one of serious moment. In my last annual report I suggested such amendment of section fourteen as would authorize the Commissioner of Patents, in connection with the Examiners, to look over the various classes, and select such models of rejected applications and expired patents as can safely be spared from the Office without interfering with the proper examination of applications, and deposit the same for safe-keeping with such institutions of learning in various parts of the country as will obligate themselves to take good care of them, and hold them subject to the order of the Commissioner of Patents. With such authority conferred upon the Commissioner, I am satisfied that the present model gallery will be sufficient to retain the necessary models for many years to come.
Section 23 should be so amended as to require the payment of the final fee in such time that the Office may be enabled to issue a patent within the six months required by law. It is now the custom, to a considerable extent, to deposit the fee, on the very last day of the six months, in some Government depository distant from Washington; and notice is not received at the Office for many days, sometimes weeks and months thereafter. Applicants claim that, having paid the fee within the six months in accordance with the demands of the law, they are entitled to their patents; yet, as the Office received no information of the payment of such fee within the six months, it was impossible to issue a patent in accordance with the law. In the respect the first part of said section and the latter part are not in harmony.
By section 25 persons taking out a patent in a foreign country previous to obtaining one in the United States, the patent obtained here must expire with the patent obtained abroad. By the laws of several foreign states, the foreign patent may expire at the end of two, three, five years, etc.; and under operation of section 25 the American patent must expire at the same time.
The fact that mere importers of an invention may obtain a patent in several foreign states makes it necessary that, if an American inventor desires to get a foreign patent, he must do so before obtaining one here; otherwise its publication here will enable persons abroad to patent it before the inventor can reach there with it. I see no good reason for this provision in our law. Either a citizen or an alien may obtain a patent here without getting one abroad at all; if so, his patent is in force for seventeen years. I am at a loss to understand why it should be in force any less length of time because of his having obtained a foreign patent. I would suggest that this section be so amended as to make the duration of an American patent entirely independent of the duration of a foreign patent to the same person. It would be an act of justice that such an amendment be retroactive, so as to include all patents issued since July 8, 1870.
Section 29 provides that, if required by the Commissioner, models shall be filed in all cases where the subject matter of the invention admits of representation by model. Experience has clearly demonstrated that models should be demanded in all cases. An expert in a particular class may be able to comprehend and clearly understand an invention from a well-written specification and good drawings; but in the examination of applications on appeal before the board of appeals or the Commissioner, who have not the same familiarity with the special class that the examination may have, a model is generally found necessary for a clear and full understanding of an invention. When the case goes, as it may, before courts and juries, the necessity is still stronger. I would, therefore, recommend such amendment of this section as will make a model necessary in all cases where the invention can be represented by one. A matter of so great importance should not be left to the discretion of the Commissioner.
By the operation of the final clause in section 33, an assignee of the entire interest in a patent, who may desire to secure its reissue, must secure the signature and oath of the inventor to the application, provided the inventor is living. There seems to be no good reason for this provision, as no new matter can be introduced into a reissue, and the inventor having parted with his entire interest, there is no more reason for his signing the application than there would be in having any other disinterested person do so. Experience shows, however, that inventors very often take advantage of this clause to exact large sums of money from assignees for the simple act of signing their names to applications. The only end this clause seems to serve is to give assignors the right of extortion. The section should be amended so as to allow an assignee of the entire interest in a patent to apply for a reissue in his own name.
Section 35 should be amended to correspond with the suggestions made on section 23.
Section 36 provides for the recording in the Patent Office of assignments, yet under very many patents licenses to use the same and to manufacture under them are given all over the country, in nearly every city and town, and yet no record of the same is made in the Patent Office. It is impossible for the Office to give an inquirer such an abstract of title as will enable him to determine whether or not the patent is encumbered. This section can be amended so as to require licenses and shop-rights to be put in writing, and recorded the same as assignments.
It is not unusual for two patents to join in an application and obtain a patent as joint inventors, when, in fact, one makes the invention and the other pays the expenses. Of course such a patent is utterly worthless, and, under the present law, cannot be corrected. I would therefore suggest that section 53 be so amended as to make the misjoinder of parties a ground for reissue, when the misjoinder has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention.
Section 71, authorizing the issue of patents for designs, opens the door for a vast amount of deception and fraud upon the public. Patents are granted under this section for mere changes of form, and by being stamped "patented" the public are led to believe that the functions of the thing patented are covered by the monopoly.
As designs relate only to form and figure, I would recommend that this section be so amended as to make designs registerable the same as trademarks; and that certificates of registration be issued instead of patents; and that holders of certificates of registration be forbidden to use upon the articles covered by such certificates the word "patented," or any other word calculated to lead the public to believe that the article is covered by a mechanical patent.
In my last two annual reports I have called attention to the necessity of a reorganization of the Patent Office. The present organization was adopted when the number of applications for patents was only a few hundred per annum instead of twenty thousand, as at present, and when the value attached to patents was almost nothing compared to that which they now assume.
The inventive genius of our people has largely contributed to the enormous growth in the manufacturing interests of our country during the last twenty five years. By as careful an inquiry as I have been able to make, without legal authority to obtain exact figures, I am satisfied that fully nine tenths of all the capital invested in manufacturing in the United States is thus invested because of the security given to it by patents. Very few men are willing to invest their money in manufacturing, if, when they have established a market, and rendered their articles of manufacture popular, other establishments may be built up in their immediate vicinity, and compete with them in the market, and reap the advantages of their pioneer work. Consequently, manufacturers have sought patents to cover the principal articles they manufacture, thus securing a specialty that will be certain to give them a remunerative market. This fact has given to patents a largely increased importance, and added much to their commercial value.
It is the pretense of our patent system to give an inventor an instrument that shall, for a limited time, afford him full protection for all he has invented, and yet not permit him to monopolize the rights of the public, or of other inventors. A large majority of applications for patents, embracing important and valuable improvements, are accompanied by descriptions, and by claims much broader than the inventions -- so broad as to invade patents granted to others, and often to cover what is already well known, and has long been in public use.
It is the duty of the Patent Office, under the law, to ascertain just what is new and useful in the applicant's inventions, and then to limit his description and claims to that of which he is really the first and meritorious inventor. A patent thus limited is the most valuable to the inventor, the least restrictive upon manufacturing and trade, and freest from annoyance to the public.
In the infancy of our patent system the Commissioner was allowed two or three assistants, who were called Examiners. The custom was for the Examiners to make a careful, expert examination as to the question of novelty, and to suggest wherein the description was erroneous, and the claim too broad or narrow, and to report such action to the Commissioner, who reviewed their work, and granted patents or rejected the application, as seemed just and proper.
As the work of the Office increased, so that the number of Examiners extended from two or three to over seventy, the review of the work of the Examiners, by the Commissioner, became an impossibility; hence the Office, by the very necessities of its situation, has fallen into the practice of sending an application to the Examiner in charge of a class, who examines and determines upon the question as to whether a patent should issue or not, and either rejects or passes for issue without supervision. The result is that very many applications are hastily and carelessly examined; very many patents are issued every year for subject matter not patentable; and applications area rejected upon which patents should be granted. Many patents are granted upon applications that contain valuable inventions, yet the descriptions have been so faulty, and the claims so carelessly drawn, as either to make the patent entirely worthless, or to make it exceedingly annoying and damaging to the public, from the fact that it is permitted to cover not only the applicant's invention, but very much that it is well known and open to free use by the public.
It is well known that complains from many section of the country, against our whole patent system, arise almost exclusively from patents that are improperly granted, because of the want of proper supervision in their examination; and with so many persons examining and passing applications for issue, it is an impossibility to establish anything like a uniformity of practice in the Office, or to get any such supervision as will attain what the law is intended to secure -- that is, the rights of the inventor without infringing upon the rights of the public.
The only remedy for the evil here pointed out is for such a reorganization of the Office as will secure supervision of the work of examining. The Examiner's duty should be to examine and report to some superior officer, who should review his work and determine the question of patentability. The very fact that one's work is to be reviewed, and approved or disapproved, will secure thoroughness, when the absence of such supervision engenders haste and carelessness.
The number of applications for patents averages seventy a day, and the number of patents issued something over forty a day. From this amount of work, it will readily be seen that the Commissioner cannot, as was originally intended, give personal supervision to more than a very few applications for patents.
The plan which I have suggested heretofore, and which I again earnestly recommend, is the grouping of the one hundred and forty five classes in the Patent Office into nine divisions, each division to be presided over by a competent man to review the work of those under him.
I am thoroughly satisfied that such an organization would relieve the country of a large number of very annoying patents which should never be granted, and will secure to real inventors the products of their brain work with much greater certainty than is now done.
The reorganization suggested here, of course, would somewhat increase the expenses of the Patent Office, and in order to insure that the Office will be self-sustaining it may become necessary to increase its revenues. This I think can be done without serious hardship to inventors, and with great advantage to the progress of invention and the convenience of the public.
Experience has shown that a very considerable proportion of the patents granted are for inventions that really prove to be worthless in themselves. They need additional inventions and new adaptations before they possess any practical merit to commend them to public use; consequently they lie dormant until some new inventor, possessing more practical knowledge of the subject matter, makes the additional inventions necessary, and the former invention becomes an element in the new invention, which is introduced into public use and becomes popular. When it is thus introduced, shrewd speculators frequently buy the old patent for a mere trifle and levy tribute upon the manufacturers and users of a new article, in which the old invention is merely a sub-element. Thus we find that inventions, useless in themselves, are often hindrances in the way of the development of practical machinery; either preventing such development, when it is known that they exist, or levying such tribute upon it, when reconstructed without such knowledge, as to practically drive the useful machinery out of the market.
I am convinced that it would be to the interests of inventors and the public, that holders of patents should, at the expiration of six or seven years from the date of their patents, be required to pay into the Patent Office a sum of, say, twenty dollars, otherwise their patents become void. This would probably sweep out of existence fully twenty five percent, or, perhaps, a larger proportion of all the patents granted, as would add sufficiently to the revenues of the Office to defray its necessarily increasing expenses. This tax would not be onerous upon holders of patents possessing, in themselves, any real merit, and would be beneficial in exterminating such as are without merit and stand in the way of substantial and practical improvements.
The expense, delay, and uncertainty of patent litigation in the courts go far to diminish the value of patents, and to discourage meritorious inventors. Experience has proven that when an inventor, by the exercise of his genius and skill, has developed a really valuable invention, it has usually taken nearly or quite one-half of the lifetime of his patent to demonstrate its importance and value to the public, and to create a demand for it. About the time such demand has been established, and a profitable market fairly opened, infringers have generally appeared and piratically seized upon the fruits of his genius and toil. It is true, the statute provides, nominally, a remedy against infringers by actions and suits in the United States circuit courts. He finds, however, most of the courts so thronged with business, and such a reluctance upon the part of most of the judges to touch patent cases, that he has presented to him but faint hope of securing a final judgment before the patent shall have expired. The delay in reaching final decisions adds so greatly to the expenses of litigation that most inventors are compelled to abandon all hope of ever enjoying the exclusive use of the inventions which the Government has attempted to guarantee to them.
Many very meritorious inventions are applicable only in a small way, and adapted to light business, and will not warrant the expense of litigation in the circuit courts, however certain the result of such litigation might be. The dishonest are therefore encouraged to continue their piracy, and honest inventors are discouraged in their efforts to develop and perfect patentable inventions.
The judges for these courts are selected because of their legal learning and high judicial qualities, but to satisfactorily try cases growing out of the infringement of patents there must be added to these very essential qualifications a thorough knowledge of the applied sciences and the practical arts, a clear, expert ense [sic, sense?] of mechanical likes and unlikes, of mechanical equivalents and non-equivalents, to which many of our very best and most able jurists lay no claim. In fact, our ablest judges are the most pronounced in their opinion that our present judicial tribunals are not adapted to the wants of patent litigation.
To remedy these evils, and to provide a comparatively inexpensive means of trying the validity of patents and of speedily enforcing the rights secured by them, I respectively recommend that there be established at Washington a court exclusively for the trial of patent cases, to be composed of men eminent for their legal and judicial talents, and also distinguished for their expert knowledge of the subjects presented in the trial of causes growing out of patents. This court should be easy of access, always in session, and the pleadings simple and direct. Its findings of facts should be final; its rulings on law points might be reviewed, upon proper application, by the United States Supreme Court.
Another reason for the establishment of a single court for the trial of patent causes is found in the fact that the same patent is often infringed in many different sections of the country, making it necessary, under the present system, for the owner of a patent to commence separate suits in all the different circuits where the patent is infringed, and be at the expense of taking the same testimony in all these different courts to sustain the validity of his patent, thus increasing his expenses and multiplying the labor of the courts.
Such a court could easily try all the patent cases arising in the country, and would enable the owners of patents to obtain final judgments in a less number of months than it now takes years, and at a mere fraction of the present expense. The value of meritorious patents would be greatly enhanced, and inventors would receive more substantial remuneration and encouragement.
The Patent Office Official Gazette is increasing in popularity from week to week. The promptness with which it furnishes the claims and abstracts of the drawings of patents issued, and also the decisions of the Commissioner of Patents in appeal cases, and of the United States Supreme Court and circuit courts, in the trial of patent causes, proves a very great aid to the examining corps, and also to inventors and manufacturers and all others interested in matters pertaining to this Office.
There is a very large demand for the condensed illustrations of patents issued between the first day of July, 18698, when the old form of reports ceased, and the first day of January 1872, when the Gazette was established. It is very desirable that this gap should be bridged over by the publication of the drawings, substantially in the same form as they are now published in the Official Gazette. The claims of the patents for that time have been printed and the stereotyped plates are still preserved; hence, the expense of this work need not be very large.
In the examination of applications for patents in the Office and in answering inquiries as to particular patents that have been issued, it is necessary constantly to refer back to the Office records and the Patent Office reports, from the time of their earliest publication. There being no general index of the patents issued, this becomes a work of very great labor, and is a fruitful source of mistakes and blunders.
Mechanics, manufacturers, inventors, and attorneys outside of the Office, who constantly have occasion to ascertain what patents, when, and to whom, have been issued in the different departments of art, very few of whom have complete sets of the Patent Office reports, and are now unable to complete such sets, find it impossible to get the information they desire except by addressing the Office. In view of these necessities, I have caused a general subject matter index of all the patents issued since the establishment of the Office, and a general name-index of patentees, to be compiled, and they are ready for publication. When published they will be in very great demand among those interested in patents, and will be of great value to the Office, saving much labor and avoiding many disagreeable and harassing blunders. The subject matter index, complete, can be published in two volumes. The name index will require two additional volumes.
I would respectfully recommend that these indexes be published as soon as possible, and that the Commissioner of Patents be authorized to sell the same at a price that will cover the cost of their production.
During the late International Exposition there was called at Vienna an international congress for the purpose of considering the subject of patents, with a view to such modifications of the patent laws of the various countries having such laws as would secure the rights of the inventors of one country against the piracy of their inventions in other countries, and to make the facilities of obtaining patents in one country by the citizens of another reciprocal among the nations.
The President commissioned Hon. J.M. Thacher, Assistant Commissioner of Patents, to represent the Untied States in that Congress. When Mr. Thacher reached Vienna, however, the congress proved to be a mere unofficial convention of prominent citizens of the various European governments and a few from the United States. For this reason, I am informed, Mr. Thacher did not present his credentials, but, by invitation, participated to some extent in the convention as a citizen of the United States.
The discussions of the convention were of the greatest importance, and clearly developed the fact that the American patent system is rapidly becoming more and more popular in Europe; and strenuous efforts are being made by prominent persons in nearly all the European governments to secure such legislation at home as will assimilate their patent laws to ours.
Mr. Thacher fully and clearly presented the American system before the convention, pointing out its peculiarities and its results: and the influence of his mission is evidently destined to do very much toward accomplishing the aims and desire of American inventors and manufacturers. As he has, however, made a full report to the Secretary of State, it is not proper, perhaps, that I should further enlarge upon the matter in this report.
The business of the Office has been conducted with proper dispatch and the best care that can be hoped for with our present organization, and all the classes and divisions are well up to date with the Office work. I take great pleasure in speaking in the highest terms of the capability and efficiency of nearly all the officers, clerks, and other employees of the Bureau. A large amount of over-work has been done during the year without complain or demand for extra pay.
Commissioner of Patents