Scientific American, v 3 (ns), no 1, p 10, 2 July 1860
New Arrangements at the Patent Office
The Commissioner of Patents has established a special bureau to hear and determine Interference cases and applications for Extensions; thus relieving the Examiners and tending to render the decisions of the Patent Office in those cases more uniform than they have heretofore been. This arrangement is an excellent one, and has long been needed. Up to the present time it has been the practice to require the Examiners to take charge of and decide all Interference cases arising in their respective classes, subject to the approval of the Commissioner. But so greatly has the general business of the Office and the number of new applications made for patents increased, that the Examiners find themselves unable to give proper attention to Interferences and Extensions without neglecting or postponing other cases of importance. The bureaus just established will therefore greatly relieve them.
The Bureau of Interferences and Extensions has been placed under the charge of Examiner Henry Baldwin, who is more particularly known at the Patent Office as Judge Baldwin. We regard this appointment as an excellent one. Judge Baldwin is one of the oldest and most experienced officers in the department, and he is fully qualified to discharge the important duties of the newly-created bureau with success.
Mr. John Van Santvoord succeeds Mr. Baldwin as Examiner-in-chief of that class which is composed of fibrous and textile inventions, which includes sewing, spinning, weaving and knitting machines. Mr. Van Santvoord has had much experience in this division, and the appointment is most judicious.
Mr. Adams takes the chief charge of the classes which embrace vapor lamps, medicines, hay rakes, winnowers and some other divisions. Mr. Adams is a careful and experienced officer.
Mr. Howell has been appointed an Assistant examiner in the class embracing steam engines, etc.
Mr. Scheft is transferred to the division which comprises presses, railroads, etc.
The Patent Office -- take it altogether -- is, at the present time, in a highly flourishing condition; and its officers, with a few exceptions, exhibit in their official views and actions a uniform and commendable liberality of disposition toward inventors. In these respects a very marked change has been observable within the last three years, an alteration we attribute, in a great degree, to the wisdom and firmness which has characterized the labors of the Board of Appeals. There has been no change in this board; the members are Messrs. Lawrence, Little and Rhodes.
No institution of the kind in the world presents a better organization or administration than that of the United States Patent Office as now constituted.
Back Pay Allowed -- Several of the Examiners at the Patent Office, though nominally appointed as assistants, have, in fact, for some months past, discharged the duties of Chief examiners. Congress has lately passed a bill giving them back pay as Chief examiners from the day of commencing such service. Good.
Who Gets the Patent Office Reports?
Messrs. Editors: Can you, through the columns of the Scientific American, inform inventors how any one of them may procure a copy of the Patent Office report? Congress has appropriated large sums for printing thousands of copies for public distribution. The original design of this expenditure was certainly intended to benefit the inventor, and through his untiring energies and exertion, bring back an abundant harvest into the public treasury. Has this design been carried out? is a question that needs no answer here. A few copies only are granted to the Commissioner, and when an inventor asks him for this favor, he is compelled to answer, "No copies for distribution." He then applies to the member of Congress from his district, who, perhaps, not knowing his politics, thinks "it won't pay" to send one of "our documents" without knowing who is going [to get?] it. Every inventor should enter his solemn protest against these abuses; and as the Scientific American is taken as his text book and guide, I look upon it as the only proper place to commence the warfare.
Louisville, Ky, July 2, 1860
[In reply to the above inquiry, we can only say that the remedy for the grievance complained of rests solely with Congress. A limited number of the reports are left with the Commissioner of Patents. His practice is to furnish a copy to each inventor who has obtained a patent during the year embraced in the report. Those which are left are distributed in such a way as is thought likely to best promote the general interest, giving preference to libraries and other public institutions. The whole number of those who are each entitled to a copy of the reports, in accordance with this rule, is some five thousand annually. It will therefore be readily perceived that the Commissioner has a sufficient excuse for not being able to accommodate the large number of those who are constantly requesting this favor. We have no doubt but that a much better arrangement than that heretofore followed might be made by having a much greater proportion of these reports to be distributed by the Patent Office. This course has been long advocated by us. But perhaps it is too much to expect anything in the nature of such a self-denying ordnance from our legislators. The distribution of these documents furnishes a convenient method for them to confer favors which will at least be regarded as compliments by those who receive them, whether they ever read a page in them or not. The only remedy we can suggest, therefore, is to recommend to every inventor to try to elect such members of Congress as will use their privileges for the purposes for which they were intended, by distributing Patent Office reports to those who would prize and use them, rather than by distributing them in payment of the services of political recruiting officers, who make no more use of them than a horse would of a handsaw. -- Eds
Extensions of Patents by Congress
We have long and uniformly opposed these extensions, not from unfriendliness to those who would be thereby benefited, but on account of the prejudice which thence results to others equally meritorious. An article published on page 277, Vol II, of the Scientific American, in which the power of Congress to grant such extensions is questioned, having met with criticism from some of our contemporaries, we have been induced to review the subject and shall now proceed to give the result of our mature reflection.
We do not deny that Congress has the full power to make such extensions, provided they be done before the patent expires. Nor do we question the right of the legislative power to revive an extinct patent, unless by so doing other interests which have sprung up in the meantime are thereby directly and injuriously affected. But we do hold that, after a patent has been enjoyed during the full length of time allowed by law -- after the invention has become public property and rights have accrued founded on the faith that it is to remain so -- to resurrect that patent in such a way as to overthrow those rights is not only unjust, but, as we believe, illegal. All the laws that have ever been passed or sought for on this subject, have been of this very character.
We are aware that Congress has positive power to "promote the progress of science and the useful arts by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries;" but in the same great instrument which gives this power there is just as positive a prohibition against the exercise of any power by which any citizen shall be deprived of "life, liberty or property, without due process of law." Congress cannot exercise its conceded powers in such a way as to violate this plain prohibition.
Now what is meant by the term "due process of law" in the prohibition just referred to? Are we to understand merely that life, liberty and property, are to be held sacred until taken away by some act of the Legislature? If so, a bill of attainder may deprive us of our lives, or an act of Congress may send us to the penitentiary for life without trial. We certainly do not hold our lives, our liberty or our property, by such a tenure. "The general meaning of the clause is that no citizen shall be deprived of his life, his liberty or his property, except by the regular administration of the law of the land." (Shepard's Constitutional Text-book, 250) No mere legislative sentence can ever deprive us of the one or the other.
Now, by the 18th section of the Act of 1836, it is provided that "no extension of a patent shall be granted after the expiration of the term for which it was originally issued." When, therefore, a patent which has been held by its owner during the term prescribed by law is brought to its final period without being extended, every one has a just right to conclude that the subject matter thereof is public property and that it is to continue so forever; and he is justified in making his arrangements accordingly.
It may be said that the rule just referred to is intended for the guidance of the Patent Office only. We reply that it is the general law of the land and ought to be relied upon as such. If Congress can change its own rules, this cannot be done arbitrarily and under all circumstances.
Thus, a statute of limitations is intended for the government of the action of courts of justice. The Legislature may change or repeal these statutes, either generally or in special cases, at its pleasure, so as to operate upon all cases where titles have not accrued or interests grown up under the law. But, suppose the law to declare that a title to real estate shall not be questioned after a peaceful possession of twenty-one years. Such a possession would render the title of the occupant complete and it could never be disturbed by any subsequent act of the Legislature.
Or, suppose the law to declare that land which had been used for a certain length of time as a highway should be held to have been forever dedicated to public use. The Legislature might undoubtedly change this law so as to affect all cases where that contingency had not happened, but never so as to disturb interests which had already become vested after the expiration of the time prescribed. It might perhaps surrender back any rights which had been acquired by the public, but could do nothing to impair, without compensation, any private rights that had grown up after the dedication had thus become complete.
The principle here involved is that, where interests have grown up under the protection of a general law, those interests become property, which is protected those constitutional provisions which declare that no one shall be deprived of his property without due process of law. The same rule is clearly applicable in the cases we are now considering.
This right to protection against the subsequent injurious litigation of Congress in these cases is greatly fortified by another important fact. The 14th section of the Act of 1837 requires the Commissioner of Patents, in his annual report, to furnish a list of all patents which have become public property during the previous year. Such a list is incorporated every year in the Patent Office Report, which, by the authority of Congress, is published and, by tens of thousands, is scattered broadcast over the country.
Not satisfied, therefore, with merely declaring by law that, where a patent has expired without being extended it shall forever remain public property, Congress thus takes special pains to send out to all the world the precise knowledge of what has thus been made free to all. It says to every inventor, manufacturer, and consumer: "Here is a list of inventions which you are at full liberty to use as freely as the air you breathe; they have heretofore been private property, but they shall never become so again, and for this the public faith is fully pledged." If any person invests his money in any property upon the faith thus pledged, can that property be taken away or rendered valueless by a mere act of Congress? Does not the free use of the thing so patented and made public become secured, and can it afterwards any more be granted out in a monopoly to one person than the raising of corn or the selling of salt?
Suppose, for instance, that, after an invention has become public property, a person was to establish a workshop and provide machinery for the express purpose of manufacturing the thing so invented. This he has been invited to do by the action of Congress itself. Can the pledge involved in that invitation and in the more express declaration of law be withdrawn and the money thus invested be rendered valueless, by giving to another person the exclusive right to make, sell and use the very commodity which, at great expense, he has thus prepared himself to manufacture?
Or, suppose that, after a patent has been obtained, some other person makes a valuable improvement upon the thing so patented (which is a matter of the most common occurrence.) The new patent will be subordinate to the original one and cannot be used without a license from the prior patentee. But when the previous patent expires without an extension, the subordinate patent becomes free from this incumbrance. Suppose, now, some person were to purchase an interest in this subordinate but now independent patent. Can Congress turn around and, by resurrecting the dead patent, impose an imcumbrance upon this property, which will render it of little or no value? If so, cannot the law declare to the purchaser of a piece of unencumbered real estate: "You cannot enjoy this property unless you pay to some favorite of Congress such annual sum, for the period of seven years, as he shall demand?" Are not all kinds of property equal before the law? Has Congress the power to confiscate or encumber one kind of property more than another?
In a thousand different ways do the consequences of such an extension manifest themselves; and in so far as they have the effect of taking away a right that had become complete, do we deny the power of Congress to grant such an extension.
It is true that many acts of Congress are held to be valid which have the effect of benefiting one person at the expense of another. Thus the levying of duties on imported manufactures is regarded by many as giving money to Peter which is taken from Paul. We shall at present say nothing of the legality or propriety of such proceeding; but surely there is a manifest difference in principle between a law which collaterally affects one's property and one which takes it away directly. A law which indirectly renders A's property less valuable than it would otherwise have been, and makes B's property more so, is fundamentally different from one which says to A, "You shall not pursue your regular and honest business at all, unless you first pay to B such a sum as he may see proper to ask for the privilege."
We do not overlook the fact that the law permits machines to be patented which have been in public use for a period of not more than two years; nor that Judge Marshall, in the case of Evans vs. Jordan (1 Brock, 248) held that it was competent for Congress to extend that patent after it had expired. But that extension was made in 1808, before the enactment of the provision declaring that a patent should not be extended after it had expired, and before the occurrence of anything which caused all the world to be officially notified of that fact.
And, upon the same principle, can a patent be held valid which was granted a year or two after the subject matter thereof has been in public use? Is there any reason why it should not be valid? No law has made it public property. There is no pledge of the public faith which has been violated. No person had acquired a property in the invention which had been thus in public use, and therefore the subsequent granting of the patent to the inventor took away no property in disregard of the constitutional prohibition.
But would an act of Congress be valid which should prohibit the owner of a field from raising corn therein, or the owner of a store from selling groceries or dry goods therein, unless he shall first pay some favorite of the government such sum as he shall see proper to ask by way of "blackmail?" If not, can it prevent the owner of a workshop from manufacturing any commodity the invention of which had legally become public property when such workshop was established and put in operation? If so, is one species of property as sacred in the eye of the law as another?
The foregoing reasons, among others, satisfy us fully that Congress cannot, by the extension of a patent, directly take away or diminish the value of property which has become vested subsequent to the expiration of the patent.
Important to Patentees -- It has just been ascertained that an amendment was incorporated into the civil appropriation bill, on the eve of the adjournment, by Senator Davis, of Mississippi, which strikes directly at the mechanical genius of the country. It positively prohibits the purchase, either by the Navy or War Department, of any patented article, however necessary it may be, for the use of those departments, without special authority of Congress, naming, at the same time, the article required. The action of Mr. Davis in this matter, in injecting into the civil and legislative bill matter which could not have been adopted in either the navy or army bills, is unheard of in the history of legislation. It was enacted during the late session of Congress, that all purchases and contracts, when the public exigencies do not require an immediate delivery of the articles, shall be made by advertising for proposals respecting them. No contract or purchase is hereafter to be made, unless the same be authorized by law, or under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters or transportation, which, however, shall not exceed the necessities of the current year. No arms or military supplies whatever, which are of a patented invention, shall be purchased, nor the right of using or applying any patented invention, unless the same be authorized by law, and the appropriations therefor explicitly set forth.
-- N.Y. World, July 8th.
We have not seen the bill to which this extract refers, and of course, we give it as it appeared in the World. It seems to us to be an exceedingly harsh and unwise provision, because an exigency may arise in which an important invention for war purposes may be imperatively demanded, and yet it could not be purchased by either the Navy or War Department without calling a special session of Congress to make a specific appropriation for it. The Washington correspondent of the Herald says that there is a report in that city that the recent snap judgment law Davis, forbidding the purchase by the War or Navy Departments of any kind of patented arms, does not apply to Colt's pistol. This is a mistake. It applies to every patented article, of whatever name or description, required or likely to be required by either of the departments, from a horseshoe nail to an Armstrong gun or Ericsson propeller. The idea of collecting tolls at the Patent Office from inventors, and then making a law forbidding the purchase of their inventions, especially when they are declared to be the most valuable created, is not only ridiculous but severely unjust. This law of Senator Davis' may have grown out of the fact that when he was Secretary of War he purchased Maynard's primer, at a cost to the government of $75,000, which has proved a total failure. An improvement on this invention has been suggested by Secretary Floyd, which, if successful, may save the government from loss.
The Inventor and His Traps
We referred, in our last number, to Senator Davis's law prohibiting the War and Navy Departments to purchase any patented article. This, it appears, embarrasses both departments just now, as revolvers and other arms are much needed for the Indian country and for shipboard; but none can be purchased, and the government cannot make them. Congress appropriated, in the naval bill, $338,000 for the purchase of ordnance and small arms, and then sneaked a law through, by means which no member of Congress yet heard from can explain, preventing Secretary Toucey from making the purchase. The daily papers have given this subject unusual prominence, and have spoken strongly against this species of prohibitory legislation. It appears, after all, that one of the most important personages in connection with the government is the inventor; the utility of his "patent traps" are thus made singularly manifest.
A Censor at the Patent Office
We understand that the Commissioner of Patents, in view of the many alleged instances of carelessness, error and want of ability on the part of the examining corps of the Patent Office, has, or is about to create a new bureau, or official, who is to act as Censor over the Examiners. The new appointee is to be charged with the duty of overhauling the work of the Examiners, with a view to detect any errors in their interpretation of grammar, mechanics, science, and the application of the patent laws. He is to be a sort of literary scavenger or learned owl.
This new creation strikes us as an old fogy idea, and we are not surprised that it gives dissatisfaction among the examining officers. We do not deny that many errors have been and are being committed at the Patent Office. But when the Commissioner finds that such defects originate from the gross carelessness, want of education, or other incompetency of the official, his duty certainly is to purge the Office promptly of all such offending members, and not cast discredit upon the whole body of Examiners by appointing a watch or supervisor over them all.
Mr. W.B. Taylor, an Examiner, is, we learn, to be elevated to the dignity of Censor at the Patent Office. We had not, at the time of going to press, learned of his acceptance.
Trouble at the Patent Office -- "Revising Board" Appointed
Washington, D.C. Oct. 25, 1860
Messrs. Editors: I noticed, in your issue of the 13th, that rumor was prevalent about the Patent Office that Commissioner Thomas contemplated a restriction upon the acts of the Examiners, by appointing from one of their member a "Censor," or "literary scavenger," whose duties, as you enumerated them, would be multiferous. I was quite amused at your definition of the proposed duties of the appointee to the Censorship, and, at the same time, started at the thought of so great a responsibility being imposed upon a single individual!
Having friends in the Patent Office, and not knowing exactly what was meant by the movement which your paragraph foreshadowed, I set about to learn the true facts, that you might communicate them through your journal. I learn that the new bureau has been officially created by appointing two monitors, instead of one: that Messrs. Taylor and Peale have been transferred from their respective rooms as Examiners to this exalted position, and are to be termed the "Revising Board." The duty of this board is to act as sentinel or watch dog over all the other Examiners. In other words, the common Examiners are required by the new rule to make obeisance to their former associates who comprise this new board, in the shape of written reports to be submitted to them, setting forth their reasons or motives for granting each and every patent. The duty of the Revising Board is to examine and determine if the reasons alleged by the Examiner for ordering the patent to issue are, in their estimation, ample; and if so, they are confirmed for issue; but if not, they are withheld. So you see the work of twelve principal, and as many more assistant Examiners are reviewed by these two new appointees, in whom is vested power to grant or withhold, as they may see fit.
Of the two gentlemen forming this new board, on whose shoulders rests the responsibility of granting or rejecting all applications for patents now made, I will add a few words. They are among the oldest Examiners in the Office, but, while they possess abundant talent and are skilled in the arts and sciences, I think you will agree with me in the opinion that they are not suited for the duties imposed upon them. They will act honestly, I have no doubt, but they have been educated in the illiberal old school practice of the Office, which prevailed as far back as 1850, '51 and '52, when terror to the inventor reigned triumphant, [fn.: It was in these years that two thirds of the applications for patents were rejected. In 1853 Judge Mason was appointed to the Commissionership, and he alone brought about a new order of things by impressing upon the Examiners the fact that it was their duty to accept[?] what is stated in an invention placed before them a patent could be issued instead of studying to discover on what grounds they might reject an application, and thus far the office for the past eight [?] and patentees to prosper, up to the present time.] and will, I fear, unwittingly return to their earlier proclivities, forgetting the injunction of Commissioner Mason when he was at the head of the Office.
I am fearful that the constituting of this new board on the part of the Commissioner is the commencement of a retrograde movement in the prosperity of the Patent Office, and I shall not be surprised to see the number of applicants for patents greatly diminished under the new order, while patent solicitors will reap a rich harvest from the increased number of cases which will be rejected, and subsequently appealed to a higher tribunal. If the machinery in the Patent Office becomes much more complicated, it will, by and by, require an attorney more astute than a Philadelphia lawyer to obtain a patent for his client. I shall await, with interest, the working of this new rule, and may write you again, noting the result of my observations. LIBERAL
[While we have no great fear for the success of the inventor and applicant for a patent under the new rule, we are apprehensive the prosperity of the Office and harmony of feeling among the Examiners in the Office will not be promoted. We shall examine the working of this new piece of official mechanism introduced by the Commissioner, and referred to by our correspondent, and referred to by our correspondent, and discuss the subject in some future issue. EDS]
New Order of Things at the Patent Office
In our last number we published a letter from a Washington correspondent, touching the recent action of the Commissioner of Patents in creating a Board of Revision in the Patent Office. The suggestion thrown out by our correspondent, that the business of the Office would be thereby largely diminished, is likely to be verified to the fullest extent; and we feel confident that the retrograding tendency of the Office towards the illiberal policy which was swept out of its doors several years ago, will not only decrease the number of applications, and consequently the revenue of the Office, but will render the Office itself odious to the great body of our people, and especially to inventors.
The question may be pertinently asked, why this new movement on the part of the Commissioner? What purpose has this officer to serve in appointing one set of Examiners to watch over the acts of another? Has the examination of the claims of applicants become so rickety and careless as to call for the creation of a board of surveillance and confirmation? The statement of a single fact may help us to explain this sudden and extraordinary movement. Not many months ago, two inventors quarreled about their respective rights to an invention, and the attorney, failing in his endeavors to reconcile the contestants, pointed out to them the only available remedy, viz.: the application for a patent by both the parties, and the settlement of the question of priority of invention before the Patent Office by submitting testimony under its rules. The Examiner having charge of the cases, by an oversight, doubtless, allowed a patent to issue to each of these parties for the same invention. A sharp-sighted editor, over in New Jersey, discovering this fact, with singular infelicity of temper, charged the Patent Office with being drunk, which we have every reason to believe was not true. When the Commissioner's attention was brought to this hydra-headed issue, he was naturally solicitous about it, and felt, no doubt, that the integrity of the Office was in some degree affected by it. A worse calamity than this, however, could have overtaken the Office, such as being struck by lightning or swallowed up by an earthquake. Or it would be worse even to deny one single applicant the grant of a patent for an invention to which he is justly entitled. This has been done time and again, and often for such palpably absurd reasons, that one might almost charge the Office with the dual affliction of drunkenness and insanity.
We may be wrong in selecting our starting point, but, if we mistake not, the oversight here referred to led to the establishment, by the Commissioner, of this patent police arrangement.
Such a mistake as the one referred to is a rare occurrence in the Patent Office, and is not very likely to be repeated; it seems to us, therefore, unnecessary and unwise, however laudable the intentions of the Commissioner, to shackle the business of the office, and its applicants, with such new fangled schemes and checks.
Commissioner Holt, in his annual report to Congress, January, 1858, in referring to the progressive increase in the number of patents issued from year to year, gave utterance to sentiments which found a response in the heart of every American inventor. He says: "This result is due alike to the inherent and irrepressible energy of the national mind, and to the admirable system by which it is excited and fostered. That system, while it wisely avoids the laxity of the European laws, as decidedly, on the other hand, eschews that stern, unsympathizing, distrusting temper, which would receive the inventor as a stranger beneath the roof of the Patent Office. That better policy, which adopts the happy medium between these two equally pernicious extremes, and which, while welcoming the inventor as a friend and patron, in that frank and free conference with him enjoined by law, kindly and anxiously sifts from his invention its minutest patentable features, is a policy essentially American in its aims, and must be inflexibly maintained in the administration of this Office so long as it remains faithful to the high mission with which it is charged." Noble language and noble sentiments, worthy the head and heart of their author!
Any departure from the principles so happily enunciated by the late Commissioner Holt, will not only work mischief to the Patent Office, but will serve to crush out the energies of the inventor.
We believe that Commissioner Thomas desires to discharge the duties of his office with fidelity. We believe he desires to do only that which will promote the best interests of the Patent Office, and those who seek its fostering protection and encouragement, and that he would regret to leave it in a less prosperous condition than he found ti. We cannot, however, shut our eyes to the fact that, in making changes and filling appointments, he has selected those who will give shape to his policy from among the number who have never been accused, so far as we know, of pursuing that essentially American policy which welcomes the inventor, and kindly and anxiously sifts from his invention its minutest patentable details.
Some of the older Examiners, who are now, by virtue of their positions, exercising a most potential influence over the affairs of the Office, are stoics to the policy so eloquently enforced by Commissioner Holt.
In confirmation of what we have said about the effect of this new and singular experiment of the Commissioner, the official list of claims published in our paper this week will show its first fruits. It will be observed that the number of patents which usually averages nearly one hundred per week, is reduced, at one stroke, to thirty. So much for the revisionary experiment. At this ratio it will not be long before the doors of the Patent Office will be plastered over with these significant words, "To Let; inquire of the Secretary of the Interior, office on F street, round the corner."
Patent Office Decisions
We have for several weeks intended to notice some of the recent decisions of the Patent Office which we deem of special importance and interest to our readers. We now propose to commence the execution of that design by a review of the case of H. Muller, for a patent for sewing machine shuttles.
The application was rejected by the Examiner, merely on a reference to "a spindle stop, as built by Rogers, Ketchem & Grosvenor, of Patterson, N.J., in the year 1838, and before then." The case was then carried before the Board of Appeals, who recommended "that a patent be allowed unless a specific reference can be pointed out by the Examiner, in which the device is to be found in the same or an analogous use."
The Examiner then entered a formal protest against the issue of a patent under such circumstances, for the reason that "a rule requiring more precision than now used would prevent the exercise of the knowledge of the Office though familiarly remembered in the conduct of examinations, unless that knowledge was absolutely precise as to every particular that could enter into the state of the arts to which the application related." To this protest the Board of Appeals made a very able and conclusive reply, and the Commissioner, after full deliberation, adopted their view of the matter, and ordered the patent to issue, which was accordingly done.
This construction of the act of 1836 is so clearly correct that we wonder how it could have been doubted by any intelligent and impartial Examiner. Whenever an application is rejected the law requires the Office to give an applicant "briefly such information and reference may be useful in judging of the propriety of renewing his application, or of altering his specification to embrace only that part of the invention or discovery which is new." It is not sufficient for the Office to say to the applicant ex cathedra, "your contrivance is not new." If the Examiner knows the fact, the grounds of that knowledge can be given by him, so that the applicant can test the correctness of the opinion of the Office for himself. Peradventure the Examiner may have made a mistake; and if such is not the case, there may be shades of difference between the old contrivance and the new which may serve as the foundation for a valuable patent. And if even this is not the case, the feverish anxiety of an inventor may justly claim a liberal construction of that law which not only protects his substantial interests, but even respects those which are often only imaginary. When, therefore, an application is made for a patent, it is a safe and just rule always to allow it to issue, unless some specific reference can be given showing the same thing to have been previously in existence.
We do not say that the Office cannot properly reject an application in any case without a specific reference. If an applicant were to ask for a patent for a contrivance substantially the same as any well-known article which is in general use, it would be sufficient for the examiner to state the fact, and reject the application accordingly, without further reference.
But if the rejection is made on the ground that the same article exists or has existed in one single instance, or in a limited number of places, a specific reference should be given, and an opportunity allowed to test the correctness of the opinion of the Examiner or the accuracy of his recollection. It is not enough for the Examiner to state that he has known a contrivance of the same kind before, or that he once saw it in a particular place, provided it is no longer to be found there. If it is in common use, it is enough to say so, and the applicant may deny the fact, if he believes it untrue. But how can he deny the fact that the same thing was once seen twenty years since at a particular place; or how can he test the correctness of the reference or amend his specification and claims so as to avoid what is old, and embrace only what is new, which the law intends he shall have the right to do. ....
The Commissioner, in approving the views of the Board of Appeals, very justly remarks that, "in a reference like the present, existing solely in the knowledge or memory of the Examiner, the party would have no means of forming a judgment except by an examination of the machine or device referred to, and he is therefore entitled to be furnished with such information in regard to its whereabouts as will enable him to begin his search for it with a reasonable prospect of success." In other words, he should be told not where it was, but where it is to be found; for if it really was manufactured more than twenty years ago, and was then of sufficient importance to entitle it to the protection of a patent, the legal presumption is that it would now be in general use, and hence the means of access to it could necessarily be readily pointed out to the Office. This view clearly corresponds with the decisions and practice of the Office as cited in the foregoing paper.
The decisions of the Office thus referred to abundantly show that the rule which has for many years been observed is in full accordance with the final decision in the present case; and yet it is a little remarkable that one of the most experienced, and, by some, thought the ablest of the Examiners, should pertinaciously insist upon the observance of a rule, which is not only in opposition to that uniform practice, but also to the plain principles of justice and justice, as applied to such cases, and that he should even go beyond the beaten track of ordinary official practice for the purpose of defending and causing the adoption of his errors. The explanation is to be sought for in the fact, that some of the older Examiners were educated under the old regime, and like the Bourbons have never accommodated their notions to the new order of things. They seem to regard it as the business of the Office to prevent, if possible, the granting of a patent, and are ingenious, prompt and eager in devising the reasons for rejection. It is said that the most difficult part of learning is to unlearn our errors, and we feel satisfied in stating that some of the Examiners in the Patent Office have not overcome that difficulty.
Illustrations of the Patent Office Reports
We have received from Messrs. E.R. Jewett & Co., of Buffalo, N.Y., a set of their engravings of the illustrations to accompany the report of the Commissioner of Patents for 1859, which are neatly printed on one side of the paper by the engravers, in advance, and bound in two elegant volumes of 370 pages each. On comparing these engravings with those of former years, we are very much gratified to see so marked an improvement; and when contrasted with the first that were engraved in 1853, the difference is wonderful.
These illustrations increase the value of the Commissioner's report many fold. A person will get a better idea of a machine from a single glance at a good drawing of it, than he will from reading a very long description in words; indeed, in many cases a man might read whole volumes of letter press description and still have a very vague conception of the invention, when a brief inspection of an illustration would make it clear to him at once. We therefore trust that these engravings will continue to receive the increased attention from the Commissioner which their importance demands, and that they will never be allowed to fall in quality below the standard established by E.R. Jewett & Co.
The Patent Office and its Administration
It has never been the policy or the purpose of the conductors of this journal to create a factious opposition to the management of the Patent Office. We have always endeavored to encourage the Commissioner in the discharge of his duty, to render him, as far as we possibly could, our hearty cooperation. As evidence of this, we appeal to ex-Commissioner Mason and Mr. Holt were at the head of the Office, we had occasion to differ with them, but our difference was amicably conducted, and at no time did we fail to receive from either of them, a frank and cordial welcome to the Patent Office. The affairs of the Patent Office are of deep public concern, and there is not a single section of our whole land which does not feel an interest in its perpetuity and success. We feel bound, therefore, from a sense of duty to the public, and especially to the great body of inventors, to exert our influence against any effort to drag the Patent Office back to the old illiberal basis upon which its affairs were conducted previously to the Commissionership of Judge Mason. Commissioner Ewbank was an honest man, and was faithful to the duties of his office; but he rendered himself unpopular, principally because -- like most authors -- he did not possess that administrative skill so essential to the proper management of so important a bureau, and failed to comprehend its true policy.
When Judge Mason took the office, he found its affairs not only in great disorder, but also in very bad odor with inventors and their agents. By a prodigious amount of labor and perseverance, he brought order out of confusion and soon established in the Office a sound and healthy policy. He relied on his own judgment in a great measure, and listened to the advice of subordinate officers and others only so far as he thought the best interests of the Office could thereby be promoted.
Judge Mason proved himself the inventor's friend, but, in reference to the examining corps of the Office, we feel bound to say that he sometimes allowed his sympathies to overbear his judgment. We remember, upon one occasion, asking Judge Mason why he kept a notoriously illiberal Examiner in office. He replied: "on account of his large family," at the same time admitting that the interests of the applicants under his charge were not properly conserved. We pressed the same inquiry upon Mr. Holt, and he acted upon it by removing the Examiner. He very justly remarked that "the Office might as well close its doors as to treat inventors thus."
In our article, two weeks since, we quoted from the admirable Report of Commissioner Holt, setting forth what should be the true policy of the Patent Office in its treatment of inventors. On the 13th of June, 1857, an application was made by D.D. Badger, for an iron girder, was rejected, and upon it there arose a controversy. It was referred to one of the oldest Examiners in the Patent Office. He took the lantern of Diogenes, and searched in all the volumes, nooks and crannies of the Office, for the purpose of defeating the application. Commissioner Holt, in overruling the Examiner's decision in this case, uses the following language:
"If, however, the stringent construction now favored in certain quarters be adopted in practice, it is to be feared that many inventors who have been summoned to this office by the Constitution, would find its doors shut in their fact. It must be assumed, as the only tenable ground which can be occupied by the administration of this office, that every new and useful invention is patentable," etc.
The opposition which was arrayed against this genial and friendly policy (a policy well calculated to make the inventor feel at home under the roof of the Patent Office) amounted almost to insubordination; in fact, Commissioner Holt was obliged to remove some of the Examiners who undertook to subvert his policy. They found that the Commissioner was familiar with Dogberry's discovery, that when two persons undertake to ride the same horse, one of them must needs ride behind, and Mr. Holt probably thought that, under the circumstances, he was entitled to the front seat. The management of the Patent Office has been very successful for the past few years, and there has been but one opinion, outside the Office, respecting its liberal policy. The recent inauguration, however, of the Revisory Board is a backward movement, and must result in great injury not only to the interests of the Patent Office, but also to the great body of inventors who are "summoned by the Constitution" to seek its protection. Inventors have a right to complain of this movement, and we are not surprised to hear, and to receive such comments upon it as it deserves. It is an unpopular movement and is exerting a pernicious influence upon the whole examining force of the Office.
There is another matter upon which we wish to say a few words. Commissioner Thomas has the reputation, we believe -- and no doubt, justly -- of being an able lawyer. We have carefully examined some of his decisions on extension cases, and have found his opinions not only well founded, but ably sustained. But in looking over some of his decisions in interfering applications, we have found a singular incongruity between some of them and his decisions in extension cases. This discrepancy can be accounted for only by the fact that the Commissioner gives personal attention to the one, and refers the other to a special Examiner. In this matter, we are sorry to say the Commissioner seems not to be well sustained, and his administration is likely to suffer considerable reproach unless he applies a certain remedy which is within his reach. And here we would remark, that whatever opinion we might have entertained, heretofore, in regard to an appealing from the decisions to an outside tribunal, we have found by practical experience great benefit to some of our clients, from exercising this right of appeal. Take the case of Collins vs. White, for which a patent is now ordered to issue to Mr. Collins. An interference was declared between the parties, on an improvement in edge tools. Mr. Collins presented testimony taken in accordance with the established rules of the Office. Mr. White did not, but instead thereof, he made an ex parte statement, giving no opportunity to Mr. Collins either to confront him or any witnesses he might have brought forward, by cross-examination. It is a fact, and stands upon the records of the Patent Office, that the mere assertions of White were treated as evidence, and the issue was, in a great degree, determined against Collins by them. We cannot follow this case through all its zigzag movements; suffice it to say that for eighteen months it was oscillating between the Patent Office and the appellate court, until at last, his Honor Judge Merrick settled the question in favor of Collins. It required all this time, besides a considerable expenditure of money (enough to discourage inventors of moderate means), to overcome the obstinacy of the Patent Office, on what seems to us the plainest principles of law and justice. Mr. Collins failed to obtain justice from the Patent office, and, acting on advice of his attorneys, he sought and obtained justice from an outside tribunal. Inventors must never yield their right of appeal until the affairs of the Patent Office be conducted upon sounder principles than these. This is not an isolated case; there are others to which we propose to allude more definitely hereafter.
The President Elect's Mode of Buoying Vessels
Patented May 22, 1849
In discharging our accustomed round of duties at the Patent Office recently, our attention was called to a model of a patented mode of buoying vessels, the invention of no less a personage than the President elect of the United States.
Thinking it would interest a vast number of our readers to see what sort of invention emanated from the brain of so distinguished an official, we had an ambrotype taken from the model, and a copy of the patent transcribed from the records of the Office for publication, extracts from which we give below. The merits of this invention we are not disposed to discuss; but we hope the author of it will have better success in presiding as Chief Magistrate over the people of the entire Union than he had as an inventor in introducing his invention upon the western waters, for which is was specially designed.
The Invention illustrated in the annexed cut [DRAWING OF INVENTION REPRODUCED IN ORIGINAL] relates to an entirely novel mode of buoying steamboats over bars and shoal places in rivers. Buoyant chambers A and B, constructed in the same manner as bellows, with the tops and bottoms of boards or metal places, and the sides of india-rubber cloth or other flexible material, are secure at the sides of the vessel under the guards. Stiff rods, D D, pass through the tops of the chambers A A, and are secured rigidly to their bottom boards, so that, by pushing down these rods, the chambers are expanded, as shown at B, and by drawing the rods up, the chambers are folded snugly under the guards, as shown at A. For working the rods up and down, endless ropes f are secured to them and passed several times around a central shaft, C, which extends through the middle of the boat just below the upper deck, the ropes passing over rollers or sheaves secured to the lower aside of the upper deck, and thence down by the sides of the rods, D D, under sheaves secured to the lower deck, so that, by turning the shaft, C, in one direction, the rods are forced down and the chambers expanded; while, by turning it in the other direction, the rods are drawn up and the chambers are folded, as shown at A. The shaft, C, is worked by the engine or by hand power, whichever may be the most convenient.
This invention illustrates forcibly the variety of talents possessed by men; it is probable that among our readers there are thousands of mechanics who would devise a better apparatus for buoying steamboats over bars, but how many of them would be able to compete successfully in the race for the Presidency?
What will Become of the Patent Office if the Union is Dissolved
The above inquiry we extract from a business letter received from a correspondent residing in Alabama. The idea of a dissolution of the Union has forced upon his mind a painful interest in behalf of one of the noblest institutions of our government. The dissolution of the Union can only be effected by a secession of some of the States. This would not necessarily break up the Federal Government, and, for the present, its seat of power would remain at Washington. Should the government acquiesce in a peaceful secession of the States, then, to all intents and purposes, these seceding States would be regarded as foreign countries, and their citizens treated accordingly. But the business of the Patent Office would still go on, and all applicants for patents would be dealt with according to law.
The citizens of a seceding State would, under such circumstances, be subject to all the legal inabilities imposed upon foreigners, and upon the presentation by one of them of an application for a patent, the government fee would be $300. If an inventor could swear that he was still a citizen of the United States, even though residing temporarily in a foreign country, he would be required to pay a fee of only $30.
We believe we have stated the matter fairly and correctly, without reference to any of the political issues that connect themselves with the subject. Inventors who are desirous of applying for patents, and are apprehensive that the States in which they reside will withdraw from the union, had better file their applications at once, and thus save themselves $270, being the difference between the present fee and the one to which they would be liable when they could no longer swear that they were citizens of the United States.
Renewed Activity at the Patent Office
As usual, immediately previous to the commencement of a new year, the attaches of the Patent Office are hard at work, bringing up arrears.
The list of claims on another page faithfully indicates the labors of the Examiners, and we congratulate the inventors generally, and our patrons in particular, that there is one period in a year beyond which their business before the Patent Office is not often delayed.
The list of claims referred to above shows the number of patents issued last week to have been eighty-five; the number issued during the same week in 1859 was seventy-three, thus showing a considerable increase over last year.
It occurs to us that the Revising Board must have been very busy during the past week to have examined carefully over eighty specifications and drawings and passed them for issue! The largest class of cases represented in this week's list is the agricultural, which numbers thirty-six.
Resignation of Commissioner Thomas
The Patent Office seems of late to have become the grand stepping stone to higher civil functions. Twice within the brief space of less than two years, the President's cabinet has been reinforced by the selection of the Commissioner of Patents to a seat in the executive councils.
Mr. Holt succeeded the late Governor Brown as Postmaster General, and now we have the pleasure to record the fact of the appointment of Commissioner Thomas to succeed Mr. Cobb in the important office of Secretary of the Treasury.
This makes another change in the head of the Patent Office. In the meantime, however, its duties will be acceptable performed by S.T. Shugert, Esq., the present Chief Clerk. There are good reasons for hoping that, under existing circumstances, the President will make no appointment to the office of an inexperienced man. He might properly confer it either upon Mr. Shugert or upon ex-Commissioners mason or Bishop. The appointment of either of these gentlemen would be satisfactory to all who have business with the Patent Office.
Is the Patentee Entitled to a Copy of the Patent Office Reports?
A correspondent makes the above pertinent inquiry. We can only answer that the patentees are the most entitled to the Patent Office Reports of any class of our citizens, and a few years ago they were the first to be supplied from the press of the public printer. But, alas! the order of supplying these valuable Reports seems to have been reversed, and it would even seem, from the vast number of letters similar in tone to the inquiry at the head of this article, that many of the patentees are neglected entirely in this respect.
The Patent Office is about the only self-supporting department under our government. The inventors pay into the Treasury every year several thousand dollars more than it costs to pay the expenses of the Patent Office; and notwithstanding Congress orders to be printed every year a great many thousand copies of the mechanical reports (13,500 of which were especially appropriated for Patent Office purposes, in the year 1859), yet there seems to have been such a scarcity that the patentees of last year have not been able to procure a copy.
This should not be the case; no class of people prize them as the inventors and patentees; none are so much entitled to them; and we hope Congress will not only order enough to be furnished to the Patent Office to supply every patentee and assignee of a patent with a copy for the year 1860, but that it will also instruct the Commissioner to see that they are distributed according to the intention of the statute.
The Patent Office should have the distribution of at least twenty thousand copies per annum. The Commissioner has in his department the names of persons most likely to be benefited by them, and should have the majority of the annual supply to distribute, instead of the members of the House and Senate being surfeited with so many copies as hardly to know what to do with them.