Scientific American, v 44 (ns) no 7, p 96, 12 February 1881
Progress in Patent Law
A prominent subject in the decisions recently reported is the degree of "invention" needful to support a patent. Patents must be new and useful; the rule is elementary; yet it does not seem -- if one may judge from the number of cases in the courts -- to be generally understood. The cases of the whip tip patent is a striking illustration, for the reason that the invention, so to call it, was really useful, and do so, as the inventor had introduced a real improvement in the trade. This inventor had observed that driving whips, especially long ones without a lash, were expensive because they soon became frayed or broken at the tip end; while the stock remained good, the whole was worthless for defect of the tip. His device for relieving this difficulty was to make whip tips independent of stocks, so that they might be replaced when worn out. Each tip had a socket, which might be fitted to the small end of the stock very much as the successive lengths of a fishing rod are inserted one within another, except that he cut a screw thread on the inside of the socket of the tip, corresponding to one outside the end of the stock, by which the two might be held firmly together. A patent was obtained; but soon a rival began selling whip tips so contrived as to be clinched to the ferrule of the stock instead of being screwed. There was a law suit; and the court decided that the claim of exclusive right to make independent tips could not be maintained because it was not new. Fishing rods have been made for years upon the same principle. To be sure they have not been screwed together, and the patentee of the whip tips was pronounced entitled to his screw. But the competing company was not using a screw; therefore it was allowed to continue the business.
A more recent case is that of the "perfection window cleaner." The description of it is long and complex; but the device was substantially a rubber mounted upon a long handle, adapted to be used in reaching up to clean window panes and other glass surfaces. It consisted only in the adjustment of the rubber strip, supported by a tubular cushion, in a way to bring it advantageously against the surface to be cleaned. The decision of the court was that there was nothing new in the invention; the implement was nothing but a mop or scrubbing brush made of India rubber.
A still more remarkable case was decided upon a patent for "improved kindling wood." In order to make kindling wood take fire easily and save the kitchen maids the trouble of cutting splinters and shavings, or hunting for waste paper to set it alight, this inventor proposed to sell the wood in small bundles, in each of which should be tied a little lump of resin, tar, or some combustible of that sort, which would take fire from a common match, and set fire to the bundle. For this he obtained a patent, but the court said that there was no invention; his device was no more than selling tar or resin tied up in a bundle with kindling wood. It was no more patentable than it would be selling a cigar with a match tied to it, or a drinking glass with a straw, or a can of food with a fork.
City readers are familiar with the fare boxes used in omnibuses, and in the street cars running unaccompanied by conductors. They are so arranged that a passenger may drop the coin for his fare into a sort of savings bank slit at the top of the apparatus, through which the coin will fall down upon a little movable shelf -- what one might perhaps call a diaphragm -- where it lies until the driver has inspected it to see that it is a genuine coin, is for the proper amount, etc. He then pulls a lever, which lets the shelf drop, and the coin falls into the company's savings bank below. Obviously the device requires a window for the driver to look through. Fare boxes as thus described have been in use for some time. Patents were more recently taken out for two improvements. One of these consisted in fitting a second window to the rear side of the apparatus; and the other consisted in arranging a reflector in the interior of the box, so that the headlight of the car might shine down and enable the coins to be seen conveniently at night. The Circuit Court has decided against the validity of both of these claims. Inserting the additional window is nothing new; the old form of the box included one window, so that the improvement consisted merely in duplicating one of the features of a former device. This is not "invention," nor is any invention involved in arranging a reflector near a lamp in such a manner as to cast light on a fare box near by it.
Seats for chairs, settees, railroad cars, ferryboat cabins, etc., are nowadays extensively made of veneers, or thin sheets of wood perforated. Strength his gained for the thin wood by gluing one sheet upon another crosswise, and the perforations, being arranged upon some simple design, give both ventilation and ornament. A patent was taken out for this mode of construction; but when it was contested, proof was produced of an earlier patent for gluing veneers together across their grains to make a thin, strong sheet; and also of another earlier patent for perforating sheet metal for making chair bottoms. The Circuit Court then said that the more recent patent for veneers glued together and perforated displayed no invention and was void.
In two law suits which arose upon the patent for the giant powder, it became necessary to consider the question, How full and precise must be the description of a device in an earlier patent in order to forbid one who invents it anew at a later date from obtaining a valid patent? Judge Blatchford has stated the rule that the description in the prior patent must be sufficient to show with certainty how, by following its directions, the article can be made, and this must be a result within the intention of the description, not a mere accident. Showing that by following the directions of an earlier patent, a person might accidentally through small variations in the process, have hit upon the same result, does not avoid a patent which has been granted to a subsequent inventor.
A noteworthy decision in this branch of the law, in which the patentee was more successful than in the preceding cases, relates to an improvement in water works for cities. Former devices for this purpose have been subject to the defect that the pressure of water from reservoirs, or from force pumps, where they were employed, upon hydrants or spigots, was inconveniently variable; sometimes it would be deficient, and then so excessive as to burst the apparatus. The inventor devised pumping machinery so contrived that as fast as the pumps increased the quantity of water in the mains, and so increased the pressure upon the hydrants or spigots, the increased pressure should diminish the action of the pumps automatically; or, afterward, when the flow of water from use diminished the pressure, the diminution should set the pumps at work again more vigorously. The invention has been quite widely adopted. Recently the patentee's priority has been contested, and several English and American contrivances, having the same general purpose, have been brought forward for comparison, but the Circuit Court, after examining them in detail, pronounced them all substantially different and inferior, and sustained the patent.
The Surplus Patent Funds
In 1868 Congress passed a law requiring the daily receipts of the Patent Office to be deposited in the Treasury, the support of the office to be provided for by annual appropriations from the patent fund. During recent years under a pretext of economy, the appropriations for the conduct of the Patent Office have been unduly cut down, greatly to the disadvantage of the service, while the surplus fees have accumulated until they now amount to over sixteen hundred thousand dollars. In other words, the inventors of the country have paid in fees to the office, during the past ten or twelve years, this large sum in excess of the cost of the service rendered by the office.
There has naturally arisen the question, What shall be done with these surplus funds?
It is obvious that the most that can be asked of any branch of the public service is that it shall accomplish efficiently and fully the work intended by it. If the fees paid for service by those who are served amount to enough to pay the cost of such efficient service, that is so much more to its credit, and the utmost that can be justly demanded of it has been secured. The only department of the public service which stands in this unique position is the Patent Office. It has been and is self-supporting -- and more.
If in doing this it has also done its legitimate work with the highest degree of efficiency, justice to the clients of the office, the patentees, demands that the fees should be cut down so as to cover the cost of the service, and no more. If the office has been prevented, through insufficient appropriations, from doing its work as well as it might, and this is plainly the case, the only alternative is to use the surplus fees for the immediate improvement of the service.
Any diversion of the surplus funds to other uses -- as proposed in the bill lately passed by the Senate and now pending in the House, transferring the surplus funds of the Patent Office to an educational fund -- is equivalent to laying a special tax upon inventors, which is certainly neither fair nor politic.
If the excess of fees cannot be used for the improvement of the Patent Service, there should be no excess of fees. Indeed, justice to our inventors, and a wise national policy looking to the advancement of the useful arts and sciences through the encouragement of invention, plainly indicate two things to be done in this connection:
1st. The passage of Mr. Vance's bill to reduce the fees on patents and caveats, or something like it; and
2d. The employment of the surplus fund now accumulated to improve the working facilities of the Patent Office. The office needs more room to work in; its library should be extended and classified as to matter and thoroughly indexed; a critical digest of the patents that have been issued should be made for the convenience of the public as well as that of the office; and all the patents issued before 1866 should be printed and made accessible to students and inventors at reasonable cost. This done, it is quite possible that the fees named in Mr. Vance's bill would suffice to cover the running expenses of the office with an efficiency of service impossible now, and still less possible should the office have to submit to a diminished income without the improved facilities which a proper use of the surplus funds would secure.
Rights of Patentees While in the Employ of the Government
This subject has been brought before Congress, through the introduction of a bill (S.No.730) for the relief of Mrs. S.A. Wright, widow of the late George Wright, who (as it appears from the report of the Committee on Patents), while he was employed as a master machinist in one of the government shops, invented and patented an improved linch-pin for field artillery carriages. The invention was adopted by the Ordnance Department, in September, 1863, and has since been used by that department. The invention consists in forming the top of the linch-pin with a hook which turns down over the end of the axletree and prevents the linch-pin from coming out, affording security against the accident of wheels coming off from field artillery in traveling rapidly or over rough ground. As no compensation was ever received by Mr. Wright or his heirs from the government for the use of this invention, the committee recommended the passage of the bill. A lively and somewhat protracted debate ensued, in which many senators took part. Senator Logan stated that, in cases of this kind,it has formerly been unanimously considered by the Senate "that a person in the army or in the employ of the government, receiving his pay, using the machinery of the government for the purpose of experimenting, had no right to compensation from the government for any invention made during that time. That has been the rule for years in the Senate and in Congress. Senator Platt considered the rule well established "that where an employee of a private individual, using the time and the tools of that individual, a manufacturer for instance, has made a valuable invention, while the patentee owns his invention, the manufacturer has a kind of equitable license to use it." Senator Hoar assumed that Wright "was under no obligation to improve the government's wagons or the government mechanism any more than any other citizen of this country; so that he did not invent this while in the employ of the government in any correct legal use of that term. He invented it in his own right and in his own time, and the invention was his own property, and is just as foreign, as alien to that employment as if the Senator from Illinois, twenty years ago, when in a private capacity, had made the same invention." Mr. Hoar, in further discussing this question, deemed it a very important matter that the principle upon which the report of the Committee on Patents was made should be established as the rule of action for the government in the future. "If this government is to excel other nations in war as it has in peace, it cannot afford to do without the resource of the inventive faculty of its people." The case would, in his opinion, have been different if the Chief of the Ordnance Department, whose duty it is "to recommend, to direct, to improve the construction of ordnance for the use of the government, had made the invention patented by Wright. In the exercise of his mind upon a question like that, that officer would be in the employ of the government, because it would be exactly in the line of duty which he is paid by the government to perform. Senator Conkling's opinion was, that if any person in government employ made an invention not within the hours of his employment -- i.e., out of hours -- in that case he ought to have the benefit of his invention. Mr. Conkling opposed the bill, chiefly because he thought it questionable whether Wright was the original inventor of the linch-pin in question. This discussion betrays, on the part of the senators named, with the exception of Mr. Hoar, a curious misapprehension of the spirit of our patent system and the ruling of the courts with regard to the rights of patentees, and even Mr. Hoar might properly have taken higher ground with respect to the duty of inventors. While it is true that an employee of the government is under no legal obligation to improve the means and materials of the service, he is still, like every other good citizen, morally bound to make any invention he can for the public good. The fact that he is in government employ, however, or is employed by an individual or a corporation, is no bar to his right to control his invention if he chooses to take out a patent for it. Mr. Conkling errs in assuming or implying that an inventor's right to take out a patent and control it is limited to inventions made "by the application of time not within the hours of his employment" by another. The patent law prescribes no such limit. It asks no question beyond the fact of invention. How the inventor was otherwise employed, or by whom, or for what purpose, has nothing to do with the case. The patent is issued to the inventor on his complying with certain conditions which make no reference to his employment by the government or anybody else. The position taken by Mr. Platt is, therefore, widely and mischievously incorrect. Unless the inventor has agreed to assign the patent of any invention he may make to his employer, the latter has no legal claim upon it, no matter what were the circumstances under which the invention was made. If, as Mr. Logan states, it is a rule in Congress to deny to inventors in the employ of the government any compensation for patented inventions it may choose to make use of, the rule is a bad one and should be speedily amended. It is absurd as well as unjust for the government thus to violate contracts entered into with it in good faith by its citizens. We are of the opinion that the Senator must be entirely wrong in the assertion he makes; for how could one branch of a legislative body pursue the policy of overriding laws made by both houses and sustained by the highest judiciary of the land? That Congress as a whole would have as little right to infringe the property rights of an inventor, whether in government service or not, or to authorize an officer of the government to use without compensation a patented invention, is equally clear. The clause of the Constitution (section 8) which provides for the issuance of letters patent for new and useful inventions, expressly provides that the inventor shall have the exclusive control of his invention. The letters patent, bearing the seal of the United States, explicitly describe the exclusive ownership of the patentee. The grant reserves nothing for the government. The property right covered by the patent is exclusive and absolute throughout the United States and can no more be invaded without compensation by the government than any other property. This has been the ruling of the courts, and the rule was recently affirmed by the U.S. Circuit Court, Southern District of New York, in the case of Campbell vs. James et al. In this case a patent had been infringed by an officer of the government. The defendant claimed that there was no infringement; that he had acted as an officer of the government in the performance of his duties for the benefit of the government, and that the monopoly granted in the patent did not extend to or cover any use by the government. The court ruled otherwise, and held that a patented invention, like all other private property recognized by law, is exempt from being taken for public use without just compensation by the supreme law of the land, and that such property can not be taken by any officer in time of peace, leaving the owner to seek compensation. Accordingly the defendant was declared an infringer and ordered to pay damages and costs to the amount of $63,000. It is obvious that any policy like that said to be pursued by the Senate would simply encourage the officers of the government in the performance of unlawful acts; and (except in cases of military urgency) any arbitrary seizure or use of patented inventions, whether owned by a government employee of not, lays the infringing officer liable to prosecution and punishment -- the exception made in cases of military necessity raising no bar, any more than with other species of property, to a lawful claim for compensation.
Proposed Digest of Patents
In his recent annual report the Commissioner of Patents, Mr. Marble, calls the attention of Congress to the necessity of having a digest made for the use of the office and the public of the inventions patented in this and foreign countries. The preparation of such a work, he says, would cost a large sum of money, but he thinks the government would soon be reimbursed by its sale. The advantage to the public, especially to inventors and manufacturers, would be incalculable, and for these reasons he earnest recommends Congress to take action looking to an early commencement of the work.
To prepare such a digest would, indeed, be an immense work, but there is no doubt of its value as an assistance to inventors in determining the probable novelty of their inventions, provided the books were kept up to date and made readily accessible to the public. To Patent Office examiners, the work would be of especial convenience in helping them to reject new applications for patents.
A beginning of the proposed work might be made with the American Patents; and when that digest is complete then take up the foreign patents, as the letter would necessarily contain many repetitions of the devices found in the American patent lists.
But before anything is done in respect to this proposed compilation we would suggest that the Commissioner of Patents take steps to provide for the convenient access of the public to the printed patents that now exist in the Patent Office. This would seem to be a comparatively simple matter; but somehow or other it is hedged about with insuperable difficulty. It is a curious fact that although the U.S. patents are printed in convenient form, and are public records, kept in a public building especially designed for the access and information of the people, still it is next to impossible for an individual to go to the Patent Office and refer to any complete part of the printed patents. For example, an inventor having made an improvement in flat irons, calls at the Patent Office and requests the privilege of looking over the various flat iron patents, with a view to applying for a patent is his supposed invention is new. He is shown sundry portfolios or volumes, purporting to contain all the previous inventions, finds nothing like his device, files his applications, and is rejected. He then ascertains that some of the drawings or some of the patents, including the one resembling his device, had been temporarily removed, on some excuse or other, from the portfolio when he examined it, and that the set was not complete; so that his examination was fallacious. He further finds that there is no uniform system followed at the Patent Office whereby the public may enjoy convenient and certain access to all the printed patents in any particular class or branch. We suggest that before the new digest proposed by the Commissioner be commenced, the printed patents should be thoroughly classified, and several complete sets thereof maintained in convenient places for public reference.
We are inclined to believe that the Commissioner of Patents already has authority to establish such a system. Its efficient realization would be of great value to manufacturers, inventors, and all who are concerned in patent affairs.
The Official Examination of Patents
[from a British publication]
Many persons who suggest improvements in the patent law of Great Britain propose that patent specifications shall be officially examined for novelty before a patent shall be granted. A very high value is set upon this scheme; and it is commonly held that by carrying out the examination system thoroughly it would be found possible to eliminate nearly all the existing defects in the working of our patent law. Only the examination would not reduce the cost of a patent. Given low fees and efficient examination, and nothing more would be demanded by hosts of grateful inventors. It is not to be disputed that the theory of prior examination has something to recommend it. It seems at first sight to be clear that the state has no right to grant a worthless patent to an inventor in return for his fees; and it also seems to be right that the state should, in granting a patent, give the world a kind of guarantee that the invention patented was a new thing. But when, instead of glancing hastily at the matter, we carefully consider the bearings of the questions involved, and the whole theory of patent law as practiced in this country, we soon find reason to doubt that prior examination is a good thing; and if we turn to the United States, where examination is practiced, we shall find nothing to encourage the belief that the system can ever be made to work well.
The arguments in favor of official examination are very few, however cogent they may be. They are, as we have said, that the state ought not to sell to any one that which has no value, and that by stopping the intending patentee at the very outset from protecting an old invention, much trouble will be saved to manufacturers, an enormous amount of litigation will be got rid of, and the patents which pass the necessary ordeal will acquire a hitherto unknown value. As a minor consideration patentees and their agents will save the cost and time of making searches. If anything else can be urged in favor of the official examination it has escaped our notice. It will be seen that the examiners can do nothing more than say that a given invention is new or old. The value of the verdict when the invention is pronounced to be old is comparatively small. It is represented probably by the fees which the inventor will not spend under the circumstances. Its value as regards the invention pronounced to be new may be very great indeed. It may give a man an indefeasible title to a property worth many thousands of pounds. But it is obvious that, in order that this may be the case, the verdict of the examiners must not admit of being questioned. If they say that Mr. John Smith's invention for improvements in penny whistles is new, then it must not be open to Mr. James Brown to say that the examiners were mistaken as to the scope of the invention; nor must Mr. Green be permitted to refuse to pay Mr. Smith a royalty on the ground that he had made whistles of the kind patented for years; nor may Mr. Robinson assert that the specification is so badly drawn that only whistles which it really covers cannot be made at all. If the verdict of the examiners is open to revision, then it is quite clear that it does not give an indefeasible title.
It is said now that no patent in Great Britain is really valid that has not been proved to be so by the result of an action at law. There is no doubt a substratum of truth in this statement. But assuming that the verdict of official examiners is not sufficient to keep patentees out of the law courts, then it is evident that the value to be attached to their verdict is much reduced; and it is easy to see that if the result of a little litigation was to overset the examiners' verdict in, say, half a dozen cases in the year, that verdict would almost cease to have any value whatever. In other words, if the verdict of the examiners is to give an indefeasible title, then the examiners must be infallible, in fact or by law. It is clear that no mortal can comply with the first condition, and it is equally clear that if it was enacted by Parliament that the verdict of examiners should invariably be regarded as final, a very wide door indeed would be opened for the entrance of injustice. It appears, therefore, that there must be in all cases a power of appeal. In other words, the verdict of the examiners as to the novelty would be taken for what it was worth, and we should have trials by jury just as we have now when disputes arise about priority of invention.
In the United States an attempt is made to get over the difficulty. There is a large number of examiners; so many, we believe, that it is possible for each to give quite half an hour to ascertaining whether an inventor is or is not new. The rule is not to give the inventor the benefit of a doubt, but to refuse a patent on the ground of want of novelty. Then the inventor can apply to a higher grade of examiners, and counsel can be heard in his favor. In other words, the patentee begins with something very like a lawsuit to prove the novelty of his invention. If the verdict is in his favor, then the value of his patent is, no doubt, augmented; but the cost of the trial is considerable. It may amount, and sometimes does, to several hundred pounds. If the case is not of such importance, the patent examiners will send for the patentee or his agent, and call on him for explanations, and in the end will grant him either the whole or part of what he claims.
Thus, to return to Mr. Smith and his penny whistle; he perhaps claims the use of a vulcanite instead of a wooden block in the mouthpiece, the making of a ninth hole, to give an extra note, and the introduction of a rivet at the lower end of the whistle, because solder sometimes does not flow well to the end of a lap joint, and ripping ensues. The examiners, after hearing all that Mr. Smith has to say, grant him a patent for a whistle with a vulcanite mouthpiece; but they will not grant one for the ninth hole, because flutes have more than nine holes; nor will they grant a patent for a rivet, because the ends of cask hoops make a lap joint and are secured with rivets. Mr. Smith has to be content with what he gets; but some one else subsequently obtains a patent for the ninth hole, and a third man secures the rivets, much, of course, to Mr. Smith's satisfaction. In saying all this we exaggerate not at all.
Every American who has had experience at the Washington Patent Office will bear witness to the truth of our statements. In all this we have really a desperate, but legitimate, effort to make examination a genuine thing, and not a farce; and it is not to be denied that if the system was properly carried out it would prove of great use. But let us consider what doing this means. As it is, the American examiner carries, no doubt, a great deal in his memory, and is able to say at once that certain inventions are not new; but this does not prevent the patenting every week of old ideas to a surprising extent. He is also able to say that certain parts of other inventions are not novel; so can every respectable patent agent in Great Britain. The American official must, however, be in doubt again and again, and he satisfies his official conscience by giving an inventor in such cases only one-half or one-third of what he asks for. But this is a very defective system. It means an indirect pleading guilty to a charge of incompetence as an examiner. It can, however, only be got rid of by making the examination really perfect, and it is impossible to do this. An examiner may know what has been patented before, but no board of examiners can be supposed to know all the devices which are and have been in use for years without being patented, any one of which would suffice perhaps to render half a dozen patents invalid.
Let us bear in mind that almost every week cases are tried in which all the skill of counsel, the acumen of a judge, and his power of analyzing the evidence of an army of "expert" witnesses, barely suffice to settle whether a certain invention is or is not new, and consider what it is that an examining tribunal must be expected to perform. Is it not obvious that the examiners must discharge the combined functions of judge and jury, and is it not evident that the value of their verdict will depend largely on the fullness and accuracy of the evidence set before them? This being so, the whole machinery of a law court, now resorted to only as a last resource and with comparative rarity, would have to be used before more than at most one-half the patents now granted could be confirmed.
It may be urged that this is going much too far with the thing -- that it will suffice if the examiners are moderately diligent and careful. To this we reply that unless the verdict of the examiners is to be regarded as practically final, it possess little or no value. Under the supposed conditions the entire system may do more harm than good leading to the summary rejection of really valuable and novel inventions on very frivolous grounds. This is the grand objection to the scheme. If it is not perfect it is worse than useless; and to make it even nearly perfect it must be enormously expensive in its working.
The objections, on the other hand, which can be urged against the existing British system are very few. It is true that patents which are worthless are granted, and that pretty freely, but the mischief done thereby is not very great. It will be found, as a rule, that no two inventions are really identical, although there may not be any legal distinction between them. If an old thing is patented it can do no harm to any one else, unless it possesses sufficient merit to make it worth while to work it. It will then usually be found that the patented invention is really better than that which anticipated it, and the world is not the loser by the patent.
A case in point occurred some years ago. An invention for cleaning grain was patented; on inspection, however, it appeared that the new thing was neither more nor less than the old winnowing machine. As a matter of fact, however, the new grain cleaner had within it a board so set that it divided the current of the wind, and did what the old machine did not, make a clean sample. The specification was beyond question bad as it was drawn, but no one was the worse of its existence.
The owners of a patent, valid or invalid, cannot prevent a man from using a machine or process which he had used previous to the date of the patent, and any attempt to compel the payment of royalties would end in a discovery of prior use. We suspect that the instances in which royalties are paid on patents for inventions absolutely old are very few indeed, and that when a royalty is paid the owner of the patent has some substantial claim to it. But whether this be the case or not, and even if we concede that it is not the case, and that thousands of pounds are paid every year in royalties on worthless patents, we cannot see at all that a crude and insufficient examination would help to set matters right, even though it have official sanction.
There remains one argument to be considered, namely, that the state has no right to sell an inventor a worthless patent. It seems to us that the well recognized principle of caveat emptor applies accurately to this case. Let the purchaser look to his own interests. The law expects that every man shall use some caution in his dealings with others. Thus, for instance, a general warranty of soundness for a horse will not be taken to cover obvious defects, such as the want of an eye or a tail. The law says that a purchaser musts see for himself whether the horse which he buys has or has not a tail. In the same way due facilities are supposed to be provided to enable would-be patentees to ascertain whether their inventions are or are not new. If they do not use these opportunities, and should discover subsequently that they have patented what was not novel, they have themselves to thank for the loss of their money.
Finally, we may add that competent patent agents are always willing to make a search for inventors which will give them quite as good a title as anything done officially in the United States can confer. But most inventors object to the cost and delay, and take their chance. We have shown, however, that if the official system of examination is to be really worth anything, it will introduce elements of cost and delay which would be regarded as intolerable by the great mass of British inventors.
-- The Engineer
Under this heading the Prairie Farmer devotes a long column to a denunciation of the patent system, exhibiting in its worst phase the spirit of unreason which just now pervades so large a portion of the agricultural world with respect to patent rights.
The grounds for complaint against the patent system appear to be in substance two: First, under its fostering influence inventors are continually introducing new machines, and improvements on old ones, which farmers cannot afford to do without: Second, the manufacturers of the improved machines actually charge money for them, and often get rich by making and selling them in large numbers. Incidentally the manufacturers are given to the wholesale purchase of patent rights from inventors, and erecting upon them greater "monopolies," to "the vexation of the public." In this way the beneficent purpose of the Patent Office, they tell us, has been and is constantly perverted, and the institution turned into an "engine of fraud and oppression."
This perversion of patent rights, our contemporary goes on to say, "presses harder on the farmers than upon any other class of the community. The necessities of existence compel the farmer to keep abreast of the times in all the mechanical improvements in the implements of his business. The penalty of not keeping up is worse than falling behind; it is that of going under. If he does not use the average quality of labor saving machinery he cannot compete with those who do, and if he cannot compete he cannot live in a country where labor and the cost of living are high. Even his manual labor, separated from machinery, is comparatively valueless, so that, if he cannot use improved implements of his own, he must perforce hire out to use those of his more fortunate or more enterprising neighbors.
It is terrible to contemplate the pressure thus brought to bear upon farmers by this fertility of our inventors, and somewhat amazing to see how tenderly the Prairie Farmer regards them and their interests. If the patent system had become an engine for the oppression of farmers only, the perversion of its function evidently would not be so grievous or unbearable, but it bears even harder upon the inventor, and for his sake its immediate abolition is demanded.
In the words of the Farmer, "the patent laws were designed to reward the original inventor of a valuable contrivance; but it is a rare, not to say phenomenal, case in which such intention is carried out. The design is almost invariably stolen by some tricky associate of the inventor, or boldly taken out of his possession by a superior in the establishment in which he works, or wheedled out of him for a song by some speculative capitalist. The sentimental arguments for granting patents may be dismissed summarily. The real inventors never get the benefit of their inventions, and the further pretense of protecting them is a hollow mockery."
Strange that the 20,000 inventors who apply for patents every year, and keep on inventing and taking out patents year after year, sometimes scores of them in the course of a lifetime, do not discover the extent to which they are swindled, and strike hands with the Grangers in securing the overthrow of this terrible "engine of fraud and oppression!"
Forgetting syntax and all save the enormity of the crime which the Patent Office commits in giving the deluded inventor his letters patent, the Farmer says: "The government takes the applicant's money, the agent takes all he can beg and borrow, and his return is a document seldom worth the paper its matter is printed on.
To put a stop to this official injustice, what remedy can be more summary and logical than the one the Farmer proposes when it says, "An act of Congress should declare all existing patents forfeited to the people!" and what proposition could more fitly fall under the heading "Patent Perfidy"?
The immediate occasion of this outburst against the patent system is the recent decision of the Supreme Court sustaining the barbed wire fence patents owned by Washburn, Moen & Company.
"The sweeping character of that decision," says our excited contemporary, "is almost beyond comprehension. The use of barbed wire will be practically unlimited for some years, and the profits of this one firm will distance the tales of the Arabian Nights, the treasures of Monte Cristo, or the fortunes of the Bonanza kings. Allowing one firm to bleed hundreds of thousands is all the more doubtful policy from the fact that the firm produces nothing, but simply preys on the work and needs of others, under the protection of government, like the highwaymen and freebooters of the Romantic period."
That the company which own the barbed wire fence patents have a most desirable property is beyond question. That they may make a good deal of money out of their property, if their business is wisely conducted, is altogether probable. But where the bleeding and robbery of hundreds of thousands come is not so apparent.
The company offer the Western farmers an excellent fencing material, and the farmers will buy it when they cannot do better. If the barbed wire fencing is so much cheaper and more efficient than any other to be had that the prairie farmers cannot do without it, the company are to be congratulated and the farmers have no obvious reason for complaining. There are a great many species of property that are desirable and that men would like to get without paying therefor the market price -- land and cattle and corn, as well as fence material -- but the intensity of that desire is no just ground for the legal or illegal seizure of such property; and any arguments which go to justify the confiscation of intellectual property justify with infinitely greater force the abolition of property in land. The champions of the farmers will do well, in this connection, to keep in mind the proverbial advice to those who live in glass houses.
In any case the objection to the barbed wire patents is largely sentimental and grossly exaggerated. The Western Rural cries out against the "barbed wire fence outrage" as loudly as the Prairie Farmer, and demands as shriekly the overturning of the patent system; yet, at the close of a long editorial on the "barbed wire fence monopoly," as an illustration of this "reckless disregard of justice and the interests of our farmers in the management of the patent shop at Washington," it says:
"Some of our subscribers in Iowa inform us that they intend to resort to the use of plain telegraph wire for fence purposes, setting the posts closer together, and using five wires, which they claim will answer the purpose just as well as barbed wire. It will be found, however -- we think -- that the additional wire, and the additional posts needed, will bring the cost up to a figure that will not be much under that at which barbed wire ought to be sold for, if indeed it comes much below what it now actually is sold for."
This plain statement of fact simply cuts the ground from under the anti-patent complaint. Thanks to the inventions which the barbed wire people legitimately control, they are able to set before the farmers of the West as good a fence as, if not better than, the farmers can otherwise obtain, and in doing this they lessen in no way the freedom of the farmers to invent or construct a better and cheaper fence if they can.
No doubt it would be money in the pockets of the farmers if they could get their fences for nothing, or at prime cost; so that it would be apparently to the profit of fence makers and other manufacturers to get their wheat and corn and beef and butter on the same terms. But useful things are not to be had in this world in that way, and fortunately sensible and sober-minded farmers are aware of that fact. The unthinking may be temporarily deluded by the sophistries of those who assume to guide them, but their common sense and sense of justice will dominate in the end.