Scientific American, v 52 (ns) no 9, p 128, 28 February 1885
The Commissionership of Patents
The incoming of the new administration involves the appointment of a new man as Commissioner of Patents. The duties of this office are of the highest importance, and great care should be taken in the selection of the individual. The Commissioner makes the rules that govern his subordinates in the transaction of all Patent Office work; he determines whether old and slow modes shall be followed, or whether promptness and activity shall prevail. Upon him falls almost the entire responsibility of the bureau in all its workings.
Among the best names mentioned in connection with the Commissionership is that of the Hon. R.B. Vance, of Asheville, North Carolina. He is a gentleman of ripe experience and marked ability, possession many qualifications admirably suited to the requirements of the position. He is a man of great integrity, honor, and uprightness, and withal a good business man. He has been a member of the Committee on Patents of the House of Representatives for ten years, and chairman of the same committee for eight years. He is familiar with the working and needs of the Patent Office, and appreciates the necessity for a change by which the present ruinous delays of business shall be swept away. Like the new President-elect, Mr. Vance is a man of untiring industry. He enjoys the esteem and confidence of a large constituency. We believe his appointment as Commissioner of Patents would be hailed with general satisfaction throughout the country.
A New Commissioner of Patents
The President has appointed as Commissioner of Patents Mr. Martin V. Montgomery, of Michigan, a well-known lawyer, a man of marked ability, vigor and industry. He has always been noted for his thoroughness of research and for his success in accomplishing whatever he undertakes; but his undertakings of responsibilities have been rare; in fact, he is celebrated for his declinations of many proffered places of honor and profit, which ordinary people would have been only too glad to accept. Judging from his antecedents, the new Commissioner is not likely to allow the patent Office to remain very long in its present unsatisfactory condition. All persons connected with the establishment will be expected to wake up to renewed exertions, and use every endeavor to put an end to the harassing delays of business which have for so long a time obstructed the usefulness of the bureau.
The new Commissioner has already entered upon his duties. We wish for him every possible success. The interests committed to his charge are of great magnitude, and we trust they may be wisely administered.
Patent Office Examinations of Novelty of Inventions
The duties of the Commissioner of Patents are principally deducible from two sections of the Revised Statutes of the United States. In the interpretation of these enactments, the Commissioner, to a certain extent, is guided by the decisions of the courts. But notwithstanding all this, one great feature of the work of the Patent Office is that all of its staff are a law unto themselves. Each examiner acts for himself independently upon each application. His action may, and generally does, have reference to the law as laid down by the judges of the higher courts. That such reference may be omitted has very recently been proved in the practice followed in the registration of labels and trade marks. This special departure from the law, as laid down by the Supreme Court of the District of Columbia, has already been fully discussed in these columns.
Section 4,886 of the Revised Statutes states, as the necessary qualifications for a patentable device, that it shall be useful, new in this country, and shall not be described in any foreign printed publication, nor be patented abroad by another, nor be in public use for two years in this country. Furthermore, the patentee must be the first inventor. Such are the terms of patentability. In section 4,893 the Commissioner of Patents is directed to cause an examination of alleged new inventions to be made, to see if they are patentable under the law, and it is specially stated the patent shall be granted if such examination prove title to the privilege, and if it prove also "that the same" (invention) "is sufficiently useful and important." Thus it appears that the Commissioner of Patents has very arbitrary powers granted him. He is the judge of the utility of every device presented, and is at liberty to refuse a patent because the particular invention does not meet with his approval.
As it happens, a rigid application of this clause of usefulness is impracticable. The general utility of a device can seldom be correctly prophesied or foretold. There are so many patents, some of such restricted application, that only trade experts could form a judgment on many of them. Presumably for this reason, the question of utility is not very deeply gone into by the Office. It is sustained in this by the courts, it being usually held that the patented device is useful enough to come within the definition of the statute. But if the impracticability of this investigation of utility be urged, how much more impracticable does the search for novelty become. The invention must be new as far as all printed publications and patents are concerned. In patents alone this must give something like a million of references to be disposed of in one way or another. The American patents make up nearly one-third of the sum in question. To these must be added the Canadian, French, English, Belgian, and German patents as the most important. The field seems a vast one to cover, and is really such. No matter how accurately this great array of documents is arranged and indexed, a real search through it will always involve much labor and time. Then the literature of the arts of all nations has to be studied. The search through the patents is comparatively insignificant compared to this examination. All the records of science in different languages, up to the latest dates, are the field to be gone over. Then, after literature and patent records have been exhausted, the novelty of the device is to be determined as affected by public use for over two years in this country. The other branches of the work are very much increased by this. The whole of the United States are to be traversed, and any anticipating delay of two years' standing is to be found. Complaints of the delay of business of the Patent Office are frequent. Can such complaints be just, in view of the immense amount of work required before the granting of a patent?
Such complaints would be manifestly unjust, were the search above described really prosecuted to an end. But the truth is that it is not, and never will be. The Patent Office does not begin to exhaust the subject of novelty. This is proved every year in a multitude of court cases. Anticipations without number are annually shown in infringement suits. And these anticipations are not confined to unpatented structures that might well have escaped the Office's attention. Frequently they are found among United States and English patents, the simplest of all the grounds of the search.
In view of the fact that the courts so often nullify the work of the Patent Office, and that the search made by the Commissioner under the statute counts for nothing, it appears very questionable whether such system should be continued. When a patent is applied for under the existing regime, a very considerable delay in its granting is the regular thing. Such a delay is supposed to be necessary for the purposes of the search. But when the routine of the Office has exhausted itself, and the patent has been granted, the latter has no particular standing in court. It amounts to very little more than a registration. The novelty of the thing patented is inquired into just as if the Patent Office had made no investigation of it. If anticipating devices are found, the patent is declared invalid for the purposes of the suit at issue. No blame is attached to the Commissioner; the declaration of invalidity of a patent is too common a thing in the circuit courts to attract any attention, except from those interested.
The state of the case may be thus summed up: The Commissioner of Patents attempts to perform an impracticable task in ascertaining the novelty of an invention. To perform it, however imperfectly, he feels authorized to delay the granting of patents sometimes for several months in some of the rooms. He recognizes to its full extent this evil, and seeks for an abatement of it by asking for more examiners. In all this he overlooks the fact that the work would not be properly done, even if he had an army of officials to help him.
An impossible task is assigned him. No search can be conclusive. He can only strive to make it measurably good, if he will not dispense with it entirely. As we have before stated, we believe that the search, such as it now is, could be done in much less time than is devoted to it. Even with the present force and present system of searching, we do not believe the necessity of the delay of business. But if the Commissioner will not abandon the search altogether, he should make it commensurate with his staff. He should settle on a maximum period of delay, and not let more time be devoted to any application. The imperfect examination now accorded is valueless in the courts, and from the force of circumstances the Patent Office certification of novelty always will be. The plain duty of the Commissioner would seem to be to shorten operations, and measure the extent of his examination by the number of his subordinates. We believe that as a rule the presumptive novelty afforded to a patent is well worth the government fees. But in the case of an important patent, it is rarely worth the long delay to which so many patents are now subjected.
It will, of course, be understood that when we speak of the plenary power of the Commissioner in granting or withholding patents we do it without losing sight of the right of appeal from his decisions. But inside of the Office his control is absolute, and is only subject to the higher court.
The New Commissioner
A Democratic Patent Office Commissioner has been appointed in the place of Mr. B. Butterworth. We are anxious to see how the new man, Mr. Martin Van Buren Montgomery, of Michigan, meets the responsibilities of his important office, under the changed political conditions. Mr. Butterworth gave satisfaction, on the whole, but the general control and management of the department has been the subject of much complaint on the part of inventors and patent attorneys for many years. It is possible that the Democrats will find many abuses deserving correction, and it is to be hoped that they will make the necessary reforms; but they will best assist inventors and advance the manufacturing interests of the country by increasing the staff of the Patent Office and giving it a larger building. At present it is disgracefully undermanned and shamefully housed.
There are about 550 employees, when the number should be at least 1,000, who could all be paid out of the earnings of the Office; and the lack of accommodation may be inferred from the simple fact that the electrical division, with its 6,000 patents and a rapidly growing work, occupies two dismal, small, damp rooms on the ground floor, under which there is no cellar. It is high time that some of the 20,000 cases on hand should be disposed of, and that part of the accumulated $2,000,000 of surplus and of the $200,000 now turned over to the general treasury annually should be devoted to its proper employ. The fact that the whole laboratory of the Office is not worth $500, and that the apparatus in the electrical division consists of only ten cells of Bunsen battery, a small hand dynamo, and two old galvanometers, is enough to arouse any one to fierce indignation.
-- The Electric World
Changes in the Patent Office
Mr. R.G. Dyrenforth, of New York, Assistant Commissioner of Patents, has resigned the office, and Mr. R.B. Vance of North Carolina, has been appointed to the same position.
During the recent brief interval between the resignation of Mr. Commissioner Butterworth and the appointment of Mr. Montgomery, the present Commissioner of Patents, the duties of that office devolved upon Mr. Dyrenforth, and he at once set to work to try to bring about a reform in the bureau, with a view to putting an end to the long delays in the transaction of business -- abuses which Mr. Butterworth was unable to cope with. Under Mr. Dyrenforth's rule, brief as it was, there was a notable increase in the activity of the office.
Mr. Vance, the new Assistant Commissioner, was lately a member of Congress and chairman of the Committee on Patents. During his Congressional service, he made himself very familiar with the affairs of the Patent Office, and took an active part in the House of Representatives in upholding the interests of inventors, at a time when hostile legislation was advocated by others. Mr. Vance is a man of much ability, and his acceptance of the office of Assistant Commissioner, will, we think, be highly advantageous to the bureau.
Value of Patent Property
An illustration of the worth of a first class patent, for a device that everybody wants to use, is seen in the Bell telephone patent. The committee of three appointed by the Ohio Legislature to investigate the telephone companies in Ohio have prepared a report in which they say that there are about 12,000 complete sets of instruments in use in the State, all owned and controlled by the American Bell Telephone Company, of Boston. These instruments are leased to local companies at an annual rental of $20 for each set, making the annual tribute paid by the local companies over $200,000. The cost of each set of instruments did not exceed $3.25. On instruments which did not cost the Bell company over $40,000, it receives over $200,000 annually. The Bell company, before granting a franchise to a local company, extracts from 30 to 35 per cent of the stock of the local company and from 20 to 25 per cent of the gross earnings of all toll lines. The committee declares that in its judgment the Bell company is an imperious and unconscionable monopoly, and should be restricted by legislation, or at least be taxed upon the commercial value of its instruments, and that it should be required to pay, in addition to the taxes upon its instruments, a tax upon gross receipts.
A new industry was created when the Bell telephone was invented, and great ability has been shown in the administration of the company's affairs from the commencement. To these facts the large profits are greatly due. Had the company's affairs been less wisely managed, probably it would not now figure before the Ohio Legislation as an "unconscionable monopoly," fit only to be plundered by the tax gatherers.
Patents in the Hawaiian Islands
The authorities of the Hawaiian Islands have recently enacted a patent law, and the King has sanctioned the promulgation of its provisions. The term for which a patent may be taken is ten years. Applicants are allowed one year after the issue of the earliest patent in another country or the introduction of the article into the islands to file their cases. The law governing the proceedings before the tribunal, and the final issuing of patents, is modeled after the United States patent laws, and the cost is about the same as an English patent.
Inventions may be secured for one year by caveat. Other particulars may be had on application to the office of this paper.