Annual Report of the Commissioner of Patents to Congress For the Year ending December 31, 1880
Department of the Interior
United States Patent Office
Washington, D.C., January 31, 1881
Sir:
In compliance with section 494 of the Revised Statutes, I have the honor to submit the following report of the operations of this Office during the year terminating the 31st of December 1880.
Receipts
Detailed statement of all moneys received for patents, for
copies of records or drawings, or from any source whatever
Applications
Cash received $591,696.00
Cash refunded 1.555,00
__________
Net cash 590,1141.00
Certificates of deposit 60,274.00
__________
Total cash and certificates 650,415.00
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Copies
Cash received 58,661.25
Cash refunded 1,888.92
__________
Net cash 56,772.31
Certificates of deposit 1,282.62
__________
Total cash and certificates 58,054.95
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Recording instruments
Cash received 22,832.00
Cash refunded 813.90
__________
Net cash 22,018.10
Certificates of deposit 275.75
__________
Total cash and certificates 22,293.85
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For subscription to Official Gazette
Cash received 8,674,67
Cash refunded 370.65
__________
Net cash 8,304.02
Certificates of deposit 139.50
__________
Total cash and certificates 8,443.52
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Registration of labels
Cash received 2,152.00
Cash refunded 636.00
__________
Net cash 1,516.00
Certificates of deposit 102.00
__________
Total cash and certificates 1,618.00
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Registration of trade marks
Cash received 9.045.00
Cash refunded 185.00
__________
Net cash 8,860.00
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Aggregates
Cash received $693,060.92
Cash received 5,449.47
__________
Net cash 687,611.45
Certificates of deposit 62,073.87
__________
Total cash and certificates 749,685.32
Expenditures
Amount expended under the several appropriations from
January 1, 1880, to January 1, 1881
Salaries $423,474.57
Contingent expenses 24,418.70
Official Gazette 25,581.10
Photolithographing 34,535.48
Copies of drawings 24,081.63
Tracings of drawings 2,340.00
Scientific library 4,443.69
__________
Total 538,865.17
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Statement of contingent expenses in detail
Stationary portfolios for drawings $114.00
Furniture and labor connected therewith 4,885.30
Repairing 2,427.35
Papering 1.00
Painting 148.64
Carpets 1,828.12
Ice 818.37
Moneys refunded 40.00
Printing engraved patent heads 117.40
Temporary clerks 6,280.00
Extra labor on indexes 672.60
Other contingencies, viz:
Subscription to journals, washing towels,
keeping horse, rent of telephone, lumber,
copies of court decisions, paste, file
wrappers, engraving, etc. 7,085.92
_________
Total 24,418.70
=========
Receipts over expenditures
Total receipts $749.685.32
Total expenditures 538,865.17
__________
Receipts over expenditures 210,820.15
==========
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Statement of balance in the Treasury of the United States on
account of the Patent fund
Amount to the credit of the fund January 1, 1880 $1,420,806.56
Amount of receipts during the year 1880 749,685,32
____________
Total 2,170,491.88
Deduct expenditures for year 1880 538,865.17
____________
Balance January 1, 1881 1,631,626.71
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Summary of the Business of the Office
Number of applications for patents for inventions 21,761
Number of applications for patents for designs 634
Number of applications for reissues of patents 617
______
Total number of applications relating to patents 23,012
======
Number of applications for extensions 0
Number of caveats filed 2,490
Number of applications for registration of trade marks 390
Number of applications for registration of labels 375
Number of disclaimers filed 18
Number of appeals on the merits 773
______
Total number of applications requiring
investigation and action 27,058
Number of patents issued, including designs 13,441
Number of patents reissued 506
Number of trade marks registered 349
Number of labels registered 184
______
Total number of patents granted and certificates
issued 14,480
Number of patents expired during the year 3,781
Number of patents withheld for non-payment of final fee 1,365
----
Patents Issued
Patents issued to citizens of the United States, with the ratio
of population to each patent granted
States and Territories Patents One to
and Every
Designs
Alabama 62 20,366
Arizona Territory 2 20,220
Arkansas 44 18,240
California 349 2,491
Colorado 24 8,110
Connecticut 610 1,020
Dakota Territory 8 16,897
Delaware 23 7,376
District of Columbia 116 1,531
Florida 15 17,823
Georgia 77 19,987
Idaho Territory 2 16,305
Illinois 943 2,263
Indiana 359 5,510
Indian Territory 1 ---
Iowa 285 5,700
Kansas 96 10,374
Kentucky 170 9,639
Louisiana 66 14,243
Maine 101 6,425
Maryland 229 4,081
Massachusetts 1,339 1,333
Michigan 450 3,636
Minnesota 114 6,849
Mississippi 39 29,015
Missouri 337 6,435
Montana Territory 3 13,052
Nebraska 31 14,594
Nevada 24 2,590
New Hampshire 111 3,125
New Jersey 518 2,183
New Mexico Territory 2 59,215
New York 2,802 1,814
North Carolina 36 38,888
Ohio 917 3,486
Oregon 22 7,943
Pennsylvania 1,324 3,234
Rhode Island 205 1,348
South Carolina 39 25,528
Tennessee 82 18,810
Texas 147 10,833
Utah Territory 10 14,390
Vermont 76 4,372
Virginia 99 15,280
Washington Territory 6 12,520
West Virginia 52 11,893
Wisconsin 276 4,766
United States Army 6 --
United States Navy 3 --
Total 12,655
Patents issued to citizens of foreign countries
Of patents issued to foreigners there were granted to
citizens of
Great Britain 275
Germany 174
Canada 160
France 91
Switzerland 22
Austria 15
Belgium 10
Sweden 8
Italy 7
Russia 3
Australia 5
Cuba 4
Denmark 2
New Zealand 2
Brazil 1
Chili 1
Spain 1
United States of Columbia 1
Ecuador 1
Bermuda 1
Barbadoes 1
Isle of Syra 1
Total 786
Comparative statement of the business of the Office from 1837 to
1880, inclusive
Years Applica- Caveats Patents Cash Cash Surplus
tions Filed Issued Received Expended
1837 435 $29,289.08 $33,506.98
1838 520 42,123.54 37,402.10 $4,721.44
1839 425 37,260.00 34,543.51 2,716.49
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 5,264.20
1843 819 315 531 35,315.81 30,766.96 4,538.85
1844 1,045 380 502 42,509.26 36,244.73 6,264.53
1845 1,246 452 502 51,076.14 39,395.65 11,680.49
1846 1,272 448 619 50,264.16 46,158.71 4,105.45
1847 1,531 553 572 63,111.19 41,878.35 21,232.84
1848 1,628 607 660 67,576.69 58,905.84 8,670.85
1849 1,955 595 1,070 80,752.78 77,716.44 3,036.54
1850 2,193 602 995 86,927.05 80,100.95 6,816.10
1851 2,258 760 869 95,738.61 86,916.93 8,821.68
1852 2,639 996 1,020 112,656.34 95,916.91 16,739.43
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 36,919.02
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 10,592.42
1859 6,225 1,097 4,538 245,942.15 210,278.41 35,663.74
1860 7,653 1,084 4,819 256,352.59 252.820.80 3,531.79
1861 4,643 700 3,340 137,354.44 221,491.91
1862 5,038 824 3,521 215,754.99 182,810.39 32,944.60
1863 6,014 787 4,170 195,593.29 189,414.14 6,179.15
1864 6,972 1,063 5,020 240,919.98 229,868.00 11,051.98
1865 10,664 1,937 6,616 348,791.84 274,199.34 74,593.50
1866 15,269 2,723 9,450 495,665.38 361,724.28 133,941.10
1867 21,276 3,597 13,015 646,581.92 639,263.32 7,318.60
1868 20,420 3,705 13,378 684,565.86 628,679.77 52,866.09
1869 19,271 3,624 13,986 693,145.81 486,430.78 206,715.03
1870 19,171 3,273 13,321 669,476.76 557,149.19 112,307.57
1871 19,472 3,624 13,033 678,716.46 560.595.08 118,121.38
1872 18,246 3,090 13,590 699,726.39 665,591.36 34,135.03
1873 20,414 3,248 12,864 703,191.77 691.178.98 12,012.79
1874 21,602 3,181 13,599 738,278.17 679,288.41 58,989.76
1875 21,638 3,094 16,288 743,453.36 721,657.71 21,795.65
1876 21,425 2,697 17,026 757,987.65 652,542.60 105,445.05
1877 20,308 2,869 13,619 732,342.85 613,152.62 119,190.23
1878 20,260 2,755 12,935 725,375.55 593,082.89 132,292.66
1879 20,059 2,620 12,725 703,931.47 529,638.97 174,292.50
1880 23,012 2,490 13,947 749,685.32 538,865.17 210,820.15
An Increase of Force Necessary
The number of patents, including reissues and designs, granted during the past year has only been exceeded in the years 1869, 1875, and 1876, and the receipts of the Office have never been exceeded except in the year 1876. The excess of receipts over expenditures, $210,820.15, is greater than that of any former year. This result is due to the large receipts of the Office and the comparatively small expenditures during the year, such expenditure being less than that for any year since 1866, except the years 1869 and 1879. In the year 1875, when there was the greatest number of applications ever presented to the Office in any one year except the last, the expenditures were $721,657.71. The comparatively small expenditure of the past year, necessitated by the appropriations made by Congress, has greatly embarrassed me in the proper and prompt dispatch of business. The force employed, as well as the salaries paid to many of the employees of this bureau, is entirely inadequate to the amount and character of work required. Some of the examining divisions are several months behind with their work, which accounts in some measure for the proportionately less number of patents granted as compared with former years, many of the applications filed during the year remaining undetermined at its close. This is a serious difficulty, because inventors as a class are impatient of delay. The importunity and pressure brought to bear for speedy action often results in imperfect examination and ill-considered decisions, sometimes resulting in the granting of patents which cannot be maintained in the courts. Our laws contemplate that an applicant's right to a patent for the device or matter claimed shall be determined before the same is issued. Such being the theory of our system, the grant of an illegal patent serves to mislead and deceive the public, and tends to throw distrust and discredit upon patented property, and injures the commercial value of meritorious inventions.
The practice of the Office and its investigations should be such as to command the entire confidence of the public, so that business operations and the investment of capital can with safety be founded upon them. To accomplish this a large number of examiners having a high order of ability is requisite.
It was said by Mr. Commissioner Foote, in his report for the year 1868, that --
Questions as to the patentability of inventions become more difficult with the increase in the number of previous devices. An examiner must familiarize himself with all the inventions that have been made in his class -- not only in this country, but in Europe. Their great number and complexity have rendered the study of them a profession to be acquired by years of labor. An examiner's decisions involve nice questions of law, of science, and of mechanics. The more recondite principles upon which depend the practical success of processes and machinery, must be familiar to him. Large amounts of property often depend directly or indirectly upon his action. The ability and acquirements necessary to the proper discharge of his duties must be of a high order -- scarcely less than those we expect in a judge of the higher courts of law.
In order to thoroughly examine and decide the intricate questions which arise, the ablest and most experienced examiners must have sufficient time for mature consideration on each claim. The number of claims presented in each application will average not less than four. Applications, upon being filed, are distributed to the Principal Examiners, according to the invention, for examination. It is the duty of the Commissioner of Patents to furnish an applicant with any and all information which in his judgment shows that the device or matter claimed is anticipated by former patents or publications, after which the applicant may either amend his application or demand a reconsideration of the decision. As a rule applications are amended; and as they may be amended as often as new reasons or references are given by the examiner, which by reason of the change in the claims often becomes necessary, it is not extravagant to say that the average actions, each of which amounts to a decision upon evidence, which the Examiner himself must find are not less than four to each application, so that upon the twenty three thousand applications filed during the past year not less than ninety two thousand decisions were made. With the force now provided bylaw the twenty four Principal Examiners, including the Examiners of Trade Marks and Designs, are required to superintend and are held responsible for this large number of decisions, making for each examiner about four thousand decisions during the year.
Some conception of the magnitude of the labors of the examining corps of this Office, and of the necessity for an increase thereof, may be gained from the foregoing. The examiners have been urged by the public, by myself, and by the exigencies of the service to extraordinary efforts, and they have responded with remarkable unanimity, to prevent the business of the Office from becoming seriously delayed. Under this pressure patents may have been granted upon hasty examination which ought to have been refused. This difficulty must continue to exist unless Congress provides for an increase in the number of examiners and assistants, or confers upon the Commissioner authority to add to such force from time to time as the exigencies of the business require. As the inventors of the country pay for all the expenses of these examinations, it is due to them that their business should be transacted properly and promptly. I therefore recommend an increase over the present force of one principal examiner, three first, three second, and three third assistant examiners. This increase would add one entire division to the examining corps, and also provide assistants to the Examiners of Designs and of Trade Marks, who now, in order to equalize the work, are charged with the examination of a large number of subclasses of applications in addition to the special class for which their offices were created. This would provide twenty five examining divisions, (aside from the Examiner of Interferences,) and would, in my judgment, be sufficient, for a time at least, to insure prompt action upon applications as they are filed in the Office.
The appropriations for the year ending June 30, 1881, provide salaries for three hundred and sixty nine persons. This includes the Commissioners, the examiners and their assistants, the clerks, copyists, messengers, and laborers.
By reasons of the demands of the public services I have been compelled to employ a much larger number, and am now employing four hundred and eleven persons, exclusive of the carpenters, who are paid out of the contingent fund. In order to do this and keep within the appropriations, a large number of persons are employed as laborers at salaries not much above half pay -- that is to say, at about one half the salary that is contemplated by Congress for a given character of services. The appropriation for the next fiscal year should be so increased as to secure the retention of those now employed at least, and at such salaries as have heretofore been paid for like services.
Room
A serious embarrassment which I have met, and which has been frequently referred to by my predecessors in office, is the want of sufficient room for the convenient and proper transaction of the business of the Office. This want of room largely diminishes the effectiveness of the force. Mr. Commissioner Paine, in his report for the year ending 1879 [I cannot find this in the report for 1878 or 1879. KWD], referring to this subject, said:
The rooms occupied by the examiners are utterly inadequate to the requirements of the public service. Many of them are too unhealthy to be fit for any use except the storage of material. Each of the examining divisions needs two well-lighted and well-ventilated rooms; but in most cases a single room is the only accommodation afforded for the entire examining divisions, including the clerks, with all their desks, models, drawings and books required for the performance of their work. It necessarily results that each examiner is disturbed by the consultations of the other examiners with inventors and attorneys.
The crowded condition of the rooms retards the transaction of business, and at the same time occasions much sickness as well as discomfort among the examiners and clerks. This entails serious loss upon the Government, and involves gross injustice to these officers. The Government has already levied upon the inventors contributions nearly equal to the cost of the Patent Office building. In the original statute providing for its erection, which was enacted July 4, 1836, it was ordered that the cost should be paid out of the "patent fund in the Treasury not otherwise appropriated." This would seem to have dedicated at the outset all the net revenues realized by the Government from the Patent Office to the construction of the building.
In 1849 and 1850 specific appropriations of the patent fund were made for the construction of this edifice, amounting to two hundred thousand dollars. In addition, the Government has taken from inventors enough to make the aggregate net revenues from the Patent Office almost a million and a half of dollars; and yet this Bureau is now restricted to a small part (which is also the worst part) of the building, and the best portions are being occupied by the Land Office, the Indian Bureau, the Assistant Attorney General, and the offices of the Secretary of the Interior. The Patent Office needs, and ought to have exclusive possession of the entire building, excepting those portions only which are required for the use of the Secretary. Seasonable legislation looking to that end is imperatively required.
Digests
Attention has been called by several of my predecessors to the necessity of having a digest made, for the use of the Office, and of the public, of the inventions patented in this and foreign countries, as well as those disclosed in publications, technical works, and in scientific and other libraries. At the risk of repetition, I desire also to call the attention of Congress to the importance of such a work, in the hope that the necessity so long felt and so often referred to may, at no distant day, be relieved, and the wants of the Office and the public supplied. Nearly 240,000 patents have already been issued by this office. If the examinations of the Office upon applications filed were limited to American patents only, the necessity for a digest of such patents would, to any person at all acquainted with the business of this Office, be apparent; but when to this number of patents are added those issued in foreign countries, as well as the inventions described in scientific and other works, the importance of such a digest, in order that an examiner may know what the state of the particular art is, cannot be overestimated. As well might it be expected that a lawyer could promptly tell what the law is upon a given subject from the isolated decisions found in the reports of the decisions of the courts of this and other countries, without a digest of such decisions, as that an examiner, although an expert in the particular class, can determine from the great number of inventions already patented, as well as those described in books and publications, whether a particular device or composition of matter is patentable, without some book in which reference is made to all the patents which have been issued in that particular class, as well as the inventions described in books and publications.
The preparation of such a work would cost, it is true, a large sum of money and consume considerable time; but I think the expense to the Government would soon be reimbursed by its sale. If not in that way directly, certainly it would by its sale and the increased facility which it would afford to the examining corps of the Office, lessening their labors, and hence the necessity for so large a number of persons being employed on that kind of work. The advantage to the public, and especially to inventors and manufacturers, would be incalculable. Inventors often spend months, and even years, in producing a device to do a certain thing, only to find at the end of the time thus spent that their inventions have been fully anticipated by other devices, if not identical with the one presented, in all respects similar to it.
Capital, always cautious, seeks investment in property the chief value of which consists in the facts that its owner has the exclusive right to produce or use it, which right is guaranteed by a patent of the United States, more cautiously than in any other kind of property, because of the uncertainty felt in such guaranty of the Government until the validity of such patent is tested by the severe ordeal of a trial in the courts. This feeling of uncertainty, this want of confidence, and hesitation on the part of capitalists and manufacturers may be overcome, in a large degree at least, by having the inventions in each and every class so brought together that at least those skilled in a particular art can determine whether a particular device or composition of matter is anticipated in a former patent or publication.
Had the preparation of such a work been commenced when it was most urgently recommended by Mr. Commissioner Ewbank more than thirty years ago, and, after its publication, annually kept up, many useless and worthless patents would not have been granted, and its cost to the Government, in my opinion, would have been many times saved.
For the foregoing reasons, and for reasons which have been given by my predecessors in their reports on this subject, I earnestly recommend that action be taken by Congress looking to an early commencement of the preparation of this work. At some time, if our patent system is continued, such a work will become so necessary that its preparation can no longer be delayed. Delay in its preparation will only add to its cost when it is commenced, because the material to be examined and classified is constantly increasing. In the meantime the Office must suffer the inconvenience of not having it for daily use.
Necessary Legislation
Under existing law there is no provision for obtaining evidence as to whether or not there has been a public use or sale of an invention claimed for more than two years prior to the filing of the application. Public use or sale for more than two years prior to that time is made by the statute a bar to the grant of a patent, and in case the same is granted proof of such use or sale is sufficient to defeat it; but no way of ascertaining the facts is provided by law. I therefore recommend that the Commissioner of Patents be authorized by law to establish regulations to obtain evidence as to the fact of public use or sale in all cases where such sale or use is alleged, and also to compel the attendance of witnesses, the same as in contested cases, as provided for in section 4906 of the Revised Statutes.
Assistant Commissioner
While an Assistant Commissioner is provided for this Bureau, the law nowhere prescribes his duties when the Commissioner is present and in charge. It has been usual for the Commissioner to assign to the Assistant Commissioner various duties to be performed, including the hearing of cases brought on appeal to the Commissioner in person, where no objection is made by the party or parties interested. Serious objection, however, has been raised to this practice, and a case is now pending in the Supreme Court of this District to determine the validity of a decision made by the Assistant Commissioner while the Commissioner was present. The case in which this question arose occurred prior to my assuming charge of the Bureau; but, owing to the fact that the law does not prescribe the duties of that officer, and also that objection can be made at any stage of the proceedings if decided by him, thereby complicating the case, I have thus far sought to avoid any such complication, so far as decision of cases is concerned, by signing each and every decision prepared by the Assistant Commissioner. To properly investigate and decide the large number of cases which are brought on appeal to the Commissioner, some provision should be made in the law by which cases can be assigned to the Assistant Commissioner and his decision thereon be made conclusive. I therefore recommend the passage of a law defining the duties of the Assistant Commissioner to be such as may from time to time be assigned to him by the Commissioner.
Trade Marks
The Supreme Court of the United States, in the case of The United States v. Steffens, The United States v. Witteman, The United States v. Johnson (U.S. Reports 100,) adjudged "that the statute relating to trade marks cannot be upheld, in whole or in part, as valid and constitutional." Notwithstanding this decision, my predecessor, upon authority of the Secretary of the Interior, continued to receive applications for and issue certificates of the registration of trade marks. The practice then adopted, which has since been followed, is to notify the applicant in each case of said decision of the Supreme Court, and if after such notice he persists in his request for registration, the application is examined and a certificate of registration issued in the same manner as though no such decision had been rendered.
The reason assigned by applicants for desiring registration is, that they may have preserved somewhere a record of the declaration of their intention to adopt a particular trade mark or the date when one was adopted.
The fact that under the law of 1870 some eight thousand trade marks were registered in this Office prior to the decision referred to has made it practically the place where search must be made to ascertain whether any particular trade mark has been adopted, and the facility with which such search can be made by the records of the Office, both as to the adoption and subsequent assignment of such trade marks, makes the record of registration here particularly valuable.
Some legislation under the circumstances is required.
Printing
The specifications of patents issued prior to January 1, 1866, have not been printed, although about one thousand specifications following that date have been printed during each month of the past year. The drawings for these patents have been photolithographed, and are now ready to be attached to the specifications. When all of these specifications are printed the work of the Office will be greatly lessened, a large number of copyists can be dispensed with, and the public much more promptly served. At least thirty five thousand dollars will be necessary to continue this work during the next fiscal year.
The general index of patentees, extending from 1790 to 1873, which has been in preparation for several years, is now ready for the printer; but there is no money available to pay the expense of printing it. It is believed that ten thousand dollars will cover such expense, and I recommend an appropriation of that sum for that purpose.
Through some inadvertence the illustrations of the Patent Office Reports for the year 1870 have not been printed. If printed, the reports of this Office would be complete. It is estimated that these illustrations can now be reproduced by the photolithographic process at a cost of about six thousand dollars. The propriety of having the reports of this Office complete must be apparent to all. I therefore recommend an appropriation of the sum of six thousand dollars to complete this work, the same to be immediately available.
I submit herewith a detailed statement of all moneys received for patents, for copies of records or drawings, and from all other sources; also, a statement of the expenditures for contingent and miscellaneous expenses, a list of patents granted, arranged under proper heads, and an alphabetical list of the patentees, with their places of residence, said statements and lists covering the transactions of this Office during the year ending December 31, 1880.
Very respectfully, your obedient servant
E.M. Marble
Commissioner of Patents
Hon. S.J. Randall
Speaker of the House of Representatives