Scientific American, v 33 (ns) no 1, p 9, 3 July 1875
Our Patent System
"A Defence of our Patent System," and "Our Country's Debt to Patents," are the titles of two essays, written respectively by Mr. John S. Perry, of Albany, N.Y., and Mr. H. Howson, of Philadelphia, and published under the auspices of the United States Patent Association, in a handy volume, by J.R. Osgood & Co., of Boston, Mass. Mr. Perry's paper is a reply to the speech of Hon. H.B. Sayler, in the House of Representatives, last winter, in support of a bill permitting the free use of any article made under a single patent, on the payment of a royalty of 10 per cent and the filing of a bond by the user. The object of the measure was the prevention of such monopolies as those controlled by the sewing machine ring and the hat body people; but the provisions advocated, as we remarked in commenting upon them at the time, were objectionable and contrary to public policy for a variety of reasons, which need not here be recapitulated, as the bill as not passed.
Mr. Perry does not confine himself to showing up the disadvantages of Mr. Sayler's proposition, but goes further and denies, in toto, the latter gentleman's statements as to the profits made by the various industries involving the manufacture of patented articles; and he fortifies his denials by the testimony of a number of manufacturers and inventors, and by the assertion that the census returns, from which Mr. Sayler gathered his statistics, are entirely unreliable. There are several points in Mr. Perry's statements as to the profits of the sewing machine people, and those of various other manufacturers, which are open to criticism; but, in the main, his views on the general subject of our patent system are sound and able. He says, very truly, that "a patent law compels the inventor, if he would avail himself of its benefits, to make the inventions known by spreading out a minute description of the same upon the public records of the Office, and, if he would reap pecuniary advantage, to publish them to the world, thereby giving an opportunity for their general adoption. ... In no sense can a patent be considered an injustice to the public, because it takes nothing from them which they had ever before possessed; on the contrary, it gives them something new, some increased facility, some more advantageous method, a cheaper substitute for a rare and costly article. ... In proportion as the patent system has stimulated and developed inventions among our people, have our mechanical arts risen in importance, until our power in this direction has become recognized throughout the world."
Mr. Howson's essay will, without doubt, interest every one who is himself interested in patents. He deals with the subject in a practical and lucid manner, and his remarks are well worth careful perusal. We give an extract below, and shall present other selections in future issues.
"We constantly hear the word 'patents' from the mouths of the manufacturer and mechanic, the wholesale merchant and retail dealer, and the farmer, and always in connection with something that is novel, or of superior quality, or some thing that can be obtained at a cheaper rate than usual.
Now and then we hear the word uttered in contemptuous tones by disappointed speculators, jealous manufacturers, men who would invent without being inventors, or by those who would attempt to cure the minor evils always accompanying even the most salutary and beneficent systems of public policy, not by attacking these evils in detail, but by the disorganization of the whole system.
Common as the word is, there are few who are aware how intimately-related patents are to our present well-being and comfort, how much we owe to patents in the past; how much we have to hope from them in the future, and how intimately they are interwoven with our whole social system."
What Patents Have Done for Us
"I propose to show how grateful we ought to be for our patent system, not by any elaborate investigation of different branches of industry, not by any lengthy historical and statistical researches, but by confining my remarks to familiar objects within my reach in the room which I now occupy -- a library furnished with the ordinary accessories which a professional man requires.
There is a tapestry carpet on the floor, a carpet with a tasty pattern woven in brilliant colors. Twenty-five years ago, a skilled workman could weave by hand two yards per day of a carpet like this, but not equal in quality; and now a single power loom will weave twenty yards per day. 'The carpets, moreover,' to quote the words of a well known authority, 'are more exact in their figures, so that they are perfectly matched, and their surface is smooth and regular. They surpass, indeed, in their quality, the best carpets of their kind manufactured in any other part of the world.'
Today these superior carpets can be purchased at half the cost per yard charged for the inferior hand-made carpets of thirty years ago; that is, if we take into account the difference in value of money then and now.
To what shall we attribute this rapid progress in the manufacture of carpets? To Erastus B. Bigelow, you will say. I shall not be detracting from the merits of this great American inventor in saying, as I believe he himself would say, that the rapid progress of this manufacture is due quite as much to our patent system as to Bigelow's ingenuity.
This accomplished patentee spent years of stupendous application in the production of his loom. Where was the incentive to this laborious mental task? The reward which our patent system held out to him. Where was the incentive for capitalists to invest money in the manufacture of these carpets on a large scale? The security which patents afforded for the investment. Mr. Bigelow, although the most prominent inventors in this branch of industry, was not the sole contributor to its progress. Crompton and hosts of other patentees, have aided in bringing this manufacture to its present perfection, or rather to its present state of excellence; for we cannot foresee the end which perfection implies. We must look for further improvements, based on future patented inventions, providing progress is not obstructed by legislation tending to destroy the motive to invent. It is safe to say that better carpets may be seen today in the cottages of hardworking artisans than were found forty years ago in the houses of the wealthiest citizens; and this is due to the ingenuity called out by the incentives which patents have presented, and continue to present. It is not the wealthy alone who are gainers by our patent system; it is the masses who derive the greatest comforts from that source.
Before I leave the carpet, let me say that its greater durability is insured by a cheap patented lining, for different styles of which a dozen or two of patents have been granted, and that the carpet is secured by patent fastenings, on the production of which much ingenuity has been expended; for patents for these little devices can be counted by the score.
To be continued
The Inventor's Paradise
"A thousand patents," says a London writer, "are granted every month in the United States for new inventions. This number exceeds the aggregate issue of all the European States, yet the supply does not equal the demand, and the average value of patents is greater in America than in Europe by reason of the vast number of new industrial enterprises and the higher price of manual labor. A hundred thousand dollars is no unusual consideration for a patent right, and some are valued by millions. The annual income from licenses granted on the Blake sole sewing machine is over three hundred thousand dollars, and other patented inventions are equally profitable. Inventors are encouraged by the moderate government fee of thirty five dollars, which secures an invention for seventeen years without further payment; the rights of patentees are generally respected by the public; and no national legislator, with a single exception, has ventured to propose the abolition of a system which at once secures substantial justice to inventors and proves of incalculable advantage to the nation."
The Woodbury Patent
In our number for January 9, 1875, we gave an account of the strange proceedings before the Patent Office, conducted under the immediate auspices of the then Commissioner of Patents, Leggett, by which that officer granted a patent for an old device that had been in common use for about a generation. This is now known as the Woodbury planing machine patent; the particular claim allowed by Leggett being for a device to press down nor hold the lumber while passing through the machine. The patent as granted by Leggett is so drawn as to render every form of planing machine or lumber-dressing machine an infringement of the patent; consequently, if the patent can be sustained, it will be a "Big Bonanza" for its owners; every person who builds a house or puts up a picket fence, or walks upon a wooden floor, must pay tribute to this patent. A large amount of money was spent in obtaining the patent; and as soon as it was granted, a still larger sum was subscribed, and a joint stock company was organized to endeavor to sustain it. Leading lawyers were retained, and intimations circulated expressive of the determination of the company to exhaust every possible resource which money could command to enforce the patent. Users of planing machines were given to understand that their interests would lie in supporting, not in opposing the patent. By quietly submitting, they were promised the enjoyment of licenses under the patent for a small sum; but in case of opposition, they were liable to loss both of business and property. Some of the users succumbed to this pressure, and took licenses. But the great mass of lumber dealers resisted, and joined in a united effort to test the validity of the patent, in a legal manner, before the courts forming, for this purpose, a National Committee of Defense. It is now alleged that certain members of the executive committee of this association have turned traitors, have accepted bribes from the Woodbury Company, and are now working, not to defeat, but to uphold the patent.
The following letter, published in the Northwestern Lumberman, gives a resume of the situation:
The Case of Woodbury Versus the Planing-Mill Men
Boston, July 26, 1875
This case, one of the greatest in the whole annals of patent litigation, is still undecided, and, as the months roll on, even gains in interest.
In 1874 [sic, apparently actually 1847 KWD], Joseph Page Woodbury invented, or claimed to have done so, a flexible pressure bar as an attachment to planing machines, to supersede the heretofore commonly used roller. The advantages claimed for it were that, owing to the close proximity in which it could be placed to the rotary cutter, it prevented any tendency in the board to split or crack, and, from its ready and varied adjustment, admitted of the speedy insertion of any thickness of board or plank.
On April 29, 1873, some twenty-five or more years after his invention, Mr. Woodbury secured a patent in which he claims for his invention four points embodying the principles set forth above. Since the time of securing this patent the Woodbury Patent Planing Machine Company (Mr. Woodbury himself died some months since) have demanded from all users of the aforementioned pressure bars the following royalty.
"The company has determined to charge a preliminary fee of $10 on each machine using said invention, and that all planing, tonguing, and grooving machines, and all molding machines, which cost $300 and upwards, using said invention, shall be considered first class machines, and to pay a royalty of $200 per annum, payable quarterly, and if said quarterly license fees are paid within the first fifteen days from and after the first day of January, April, July, and October, respectively, a discount of twenty per cent shall be made. All other planing machines and molding machines to be considered second class machines, and to pay a royalty of $100 per annum, payable quarterly, subject to the same terms of discount as the machines of the first class, and the company has determined to grant no licenses until the damages and royalty from the date of patent, April 29, 1873, to March 2, 1874, have been fully settled and paid." -- Extract from pamphlet of Woodbury Patent Planing Machine Company.
"So much for Buckingham!" Immediately on the issue of the Woodbury demands, the leading lumbermen, who were users of these pressure bars, and which they had been using unquestioned for the past twenty-five years (and they claim that similar bars had been in use before the invention of said Woodbury), formed themselves into a National Executive Committee on Defense, with W.N. Greene, of Bronsons, Weston & Greene, Burlington, Vt., as chairman, N.M. Jewett, of Jewett & Pitcher, Boston, Mass, as treasurer, and W.W. Crapo, of Crapo & Co., Flint, Mich., these being the general officers. This association, to defend the manufacturers and users of planing machines against the claims to royalty demanded by the Woodbury Company, soon grew to vast proportions, and now includes the leading lumber and planing mill men in all the principal lumber cities of the Union, numbering in all some six hundred and fifty firms. Then the Woodbury Company endeavored to compromise with the executive committee, hoping thereby to get injunctions against all other users of planing and molding machines, foreseeing the danger and loss to their customers, pledged themselves to support the association and urged its continuance in the courts. All of which Mr. H.B. Smith, of Smithville, N.J., treasurer of the Manufacturers' Defense Association, most concisely sets forth and ably advocates in his journal, The New Jersey Mechanic, of July 1, 1855 [sic, probably 1875 KWD].
The association have secured for their counsel the Hon. Caleb Cushing, Hon. Wm. M. Evarts, Hon. E. Pierrepont, Hon. B.K. Curtis, and John T. Drew, Esq. The Woodbury Company have Benj. F. Butler, with some others of note.
The Association have published pamphlets and papers pithily presenting their position in the case, one of the most witty and concise of which is quoted: "If a man can file a claim to an invention in 1848, have it rejected in 1849, and withdraw his fee and papers in 1852, and then obtain a patent in 1873 under one clause of a law, while he violates another clause, and enlarges his claims and increases his combinations, we certainly think Noah might, through some descendant, get a patent on steamships on a claim of having been the inventor of the ark."
So the case now stands, having developed itself into a very pretty controversy, in which we must confess our sympathies are wholly with the manufacturers and users of planing machines. "But with the strong rests the victory."
One of the later developments of the case here is the withdrawal of two of the prominent lumber firms from the association, to form a combination with Almy and some other inventor of a bar similar to Woodbury's, they to work in unison against the association of which they were former members, in consideration, it is reported, of receiving a liberal share of the stock.
It appears, further, that the Attorney General of the United States has issued an order for scire facias proceedings against the Woodbury Patent Planing Machine Company on account of fraud in its procurement. It is suspended until October 15, 1875, to enable the Woodbury Company to file rebutting evidence.
The Woodbury Company has brought suit against several parties using machines. The first cases is that of Hancock & Greely, Cambridgeport, Mass., the trial of which is likely to come in the course of a year.
Resignation of Commissioner of Patents
The daily papers announce the resignation of Mr. J.M. Thacher, the present Commissioner of Patents, to take effect October 1. His successor has not yet been announced by the President, but the name of R.H. Duell, of Courtland county, N.Y., is mentioned as the probable appointee. Mr. Duell is reputed to be a lawyer of considerable ability as well as a first class politician. He was formerly a member of Congress.
The New Commissioner of Patents
The President has appointed to be Commissioner of Patents, vice Thacher, resigned, the Hon. R. Holland Duell, of Courtland Village, New York. Inventors will of course desire to know something of his history. He was born at Warren, 1824, received a common school and academic education; studied and practices law; was District Attorney of Courtland county from 1850 to 1855; was County Judge of the same county from 1855 to 1859; was Assessor of Internal Revenue for the twenty-third district of New York from 1869 to 1871; was elected to the Thirty-sixth, Thirty-seventh and Forty-second Congresses, and was re-elected to the Forty-third Congress as a Republican. With all these important and extensive experiences he ought to make a good Commissioner, and under his administration we shall look for many improvements in the affairs of the Patent Office.
The Washington Republican says, "The appointment of the Hon. R. Holland Duell, of New York State, to the position of Commissioner of Patents, gives, we are pleased to learn, universal satisfaction to all acquainted with his ability as a lawyer, whose large experience and valued practice in patent law so eminently fit him to fill the place so acceptably to all having business before that office. Judge Duell is one of those rare men whom position seeks, not they position -- and probably no member of Congress ever gave more general satisfaction to his constituents than did Judge Duell during the four terms he served as such from his native State. Indeed, as some of our highest officials have justly remarked, there is no position under the government that Judge Duell is not qualified to fill, and when we consider that, to fine ability and large experience as a patent lawyer, Judge Duell brings the rare quality of an urbane sternness, so to speak, which enables a man to do stern, just things in a gentle manner, we can but congratulate the patent fraternity upon the prospects before them -- the learned and experienced in that they will meet an equal, competent to grasp and dispose of their most intricate points, and the less educated and experienced in that in him, they will find one who, whilst perhaps dispelling many a chimerical dream, will lift their minds encouragingly up to higher and grander accomplishments."