Scientific American, v 57 (ns) no 8, p 113, 20 August 1887
Revival of Patent Extensions
The last Congress may be said to have revived the almost obsolete custom of extending patents beyond the original time for which they were granted, and the probability is that the Congress which meets in December next will be strongly urged to pass a new general law upon the subject.
By the amendment of the patent law passed March 2, 1861, the term for which letters patent are granted was changed from fourteen years to seventeen years, and the provision of the statute for the extension of patents was altogether struck out, the additional period of three years on the original term being held to be tantamount to an extension of all new patents for that much time. Patents granted subsequent to March 2, 1861, were issued without any privilege of extension, and the only way in which they can be lengthened is by a special act of Congress in each individual case. Hundreds of applications for extensions have been made to the Congressional committees, but, except in two or three cases, they have always been refused, and it had come to be generally understood by patentees that there was little or no chance of getting a Congressional extension. But Mrs. Henrietta H. Cole, of New York, inventor of the fluting machine patented June 12, 1866 -- twenty-one years ago -- has been more fortunate. The last Congress granted her petition, authorizing an extension. The Commissioner of Patents has heard the required evidence, and has granted the extended patent. So this patent monopoly, after having expired and become free to the public for four years, is again revived and put in force for seven years, dating from June 12, 1883, the date of the expiration of the first term of the patent.
The grant of this extension will be a justifiable encouragement for all patentees whose patents already have or are about to expire to besiege Congress for special acts of relief in each particular case; and we hope no one will hesitate or be backward in filing their application. There are undoubtedly many cases involving the greatest hardship to the inventor, in which an extension would be a relief. There are many inventions, of most extraordinary value, for which the inventors have not received a tithe of reward as compared with the benefits their devices have conferred upon the nation. Congress should either hear and determine each individual petition, and grant it, if just; or it should pass a general law, under which all patents may be extended; or it should put a stop to the grant of any patent extensions.
Last year a bill was introduced, but failed to pass, providing for the extension of all expired patents, and this, under proper conditions, would seem to be the easiest and fairest way of disposing of the matter. But it must not be forgotten members of Congress are politicians, and many of them seem rather to like to have their constituents run to them with their little private bills, as in that way a certain home influence and power is secured.
At present, the way to proceed for any one desiring to obtain an extension of a patent is to make application by petition to Congress, to be presented and pressed by the senators and members from the State in which the petitioner resides. No official fees are required to be paid. Personal interviewing of members to explain the particular merits of the case is often of great assistance, particularly so if the lobbyist be a woman. Tears and tresses are a power at the Capitol.
The New Commissioner of Patents
The N.Y. Tribune concludes that the new Commissioner of Patents, Benton J. Hall, of Iowa, is about as hard-working an officeholder as any this administration has discovered. He climbs up the Patent Office steps every morning as the clock strikes nine, and often stays long after four o'clock. The slippery chairs and sofas which adorn the commissioner's office are held down continually by attorneys, waiting to transact their business with the office, in place of the former crowds of reform congressmen with Democratic principles and good-looking young women whom they wanted to get into office. The commissioner has made some effort -- though not so strenuous as might be -- to cut the deadwood out of the examining and clerical forces left him as a legacy by his predecessor. In brief, he seems to recognize the fact that the Patent Office is not a political office, that it is supported by the money of a particular class, the inventors. So well supported, in short, that a yearly dividend of twenty per cent is realized from the fees paid in, while there is an accumulated surplus of $3,000,000 in the Treasury. Every week's issue of the Official Gazette contains from one to three of the commissioner's decisions on points of office practice, tending to bring about uniformity in the same among the different divisions. If the stories told by the attorneys are to be believed, something of that kind is badly needed. The office is slowly catching up with the work, but no great gain can be expected, I am told, with the present force. While the number of laborers in the patent vineyard remains stationary, the crop of applications is growing heavier every day. The coming Congress ought to do something to remedy the existing state of things.
And the editor might have added that a great injustice has been done inventors and others transacting business with the Patent Office, owing to the indifference of congressmen in past sessions of legislation. The encomium of the Tribune upon Commissioner Hall is just, and reminds one of the Patent Office administration under the commissionership of Judge Mason and Judge Holt, which was a good while ago, but whom a few of us live to remember with satisfaction.
The Government Suit to Annul the Bell Telephone Patent
For the second time the government has met with a reverse in its suit brought to cancel the Bell telephone patent. The last action was brought in Boston, and was demurred to by the counsel for the telephone company, in great part on the grounds of lack of jurisdiction.
This view the court accepted, sustained the demurrer, and dismissed the bill. The grounds on which the decision was rendered are of much interest as defining the views held by the court of the limitations of its own power in dealing with a regularly issued patent. The argument on the demurrer was given before Judge Colt.
In his opinion, which was handed down Sept. 26, the judge recited the principal allegations, as to want of novelty, fraud, etc., that were brought against the patent by the complainant. He then examined the question of jurisdiction, whether, in the absence of any specific statute, the United States, by direction of the attorney-general, could bring any action in equity to cancel a patent for an invention. This question the court decided negatively, to the effect that the United States had no statutory rights in the matter, as by statute the questions involved in issuing patents were confided to the commissioner of patents. Neither could he find a basis for a general equitable right. Hence the decision was adverse to the complainant. The government, however, propose to appeal the case to the U.S. Supreme Court. In the natural course the case would not be reached for four years. Long before this the decision in the appealed infringement suits will be rendered. So the great government suit is now rather a matter of minor interest.
The Driven Well Patent Invalid
Some months ago, the United States Supreme Court rendered a decision in one of the famous driven well suits, in which the reissued patent granted to Nelson W. Green was declared a good and valid patent. This seemed to indicate a more favorable view of reissues than that court has lately taken. But following on that decision comes a new one, rendered by the same court in another case. The last decision declares the Green patent to be invalid, and probably disposes forever of all arrears of dues. The patent has expired by limitation, and only those who made wells prior to January 14, 1885, were liable for royalties. This decision exempts even them.
The decision, which was rendered on the 14th inst., is based on the record in a case, Nelson W. Green et al. against George Honey, which was originally brought in the Southern District of Iowa. The record went to show that the invention was in practical public use in Cortland, N.Y., more than two years before Green applied for his patent. This evidence was accepted as conclusive by the Supreme Court, and their decision was, it is understood, based largely on this point. As yet no copies of the text of the opinion, which was delivered by Judge Blatchford, have reached this city. It is of interest to note that the Circuit Court decision was confirmed by the higher tribunal; the decision appealed from also found the patent to be invalid.
Patent "Innocents" Again in Congress
A lively discussion lately took place in the United States Senate, when the Hon. J.Z. George, of Mississippi, introduced his bill (S. 787) to protect "innocent purchasers," and asked that it be referred to the Judiciary Committee, instead of to the Patent Committee, where it properly belongs.
The following is the text of the bill:
"A bill to protect innocent purchasers of patented articles, and for other purposes (S. 787)
"Be it enacted, etc., That it shall be a valid defense to any action for an infringement of any patent, or any suit or proceeding to enjoin any person from the use of a patented article, that the defendant therein, or his assignor, purchased the patented article for use or consumption, and not for sale or exchange, in good faith and in the usual course of trade, without notice that the same was covered by a patent, or without notice that the seller had no right to sell such article; and in all such cases notice received after such purchase shall not have the effect to impair in any way the right of such purchaser as absolute owner.
"Sec. 2. That all patents for any discovery or invention hereafter granted by the United States shall be subject to purchase by Congress, for the use of the people of the United States, at such reasonable valuation, and on such terms, and in such mode, as may be provided for by law; and all such patents shall be considered and treated in law as issued subject to that condition."
Substantially the same bill has been presented to Congress for several years past, and has suffered defeat. Its object is well known, namely: Under the specious pretense of protecting innocent purchasers, it makes patented inventions, practically, free to the public.
It encourages infringers and discourages the inventor. It prevents the latter from controlling his invention. It takes from the author his right to make, use, and sell his own invention, and hands that right over to the infringer. It tends to overthrow or cripple the vast manufacturing industries that now flourish under the protection of the patent laws, and practically nullifies those laws.
Mr. George appears to have been satisfied the Patent Committee would not sanction his bill, but hoped the Judiciary Committee might do so. He said:
"As the Senator from Connecticut has stated to the Senate, that question has been before the Committee on Patents on two or three occasions, I believe, and that committee has not seen proper to grant relief -- the relief which I and which a good many members of this body think the people of the United States are entitled to; and as the bill refers to the application of an important principle of law, having reference to the rights of innocent purchasers without notice, a purely judicial proceeding, as my friend from Tennessee [Mr. Harris] suggests, I thought it was proper under all these circumstances that it should go to a new committee.
"As far as I can learn, there has been more wrong and injury done under the patent laws by suits against men who go into open market, into the stores and warehouses of the country, and buy in good faith articles which they suppose the seller has a right to sell, and then are afterwards brought up before a court, fifty or one hundred or two hundred miles from their homes, to account for it; and as the Patent Committee had not seen proper to extend to such cases this very salutary principle of the common law, the protection of innocent purchasers, I thought it was proper and light that another committee should consider that question also; and for that reason, and in addition to the reason which I gave first, that the Judiciary Committee was a very appropriate tribunal to determine it, I insist, in behalf of the rights of many persons in this country who have been injured by the present law, that this bill shall go to the other committee."
We think Senator George will find it difficult to produce any considerable number of examples where "innocent purchasers" have been brought up before a court fifty or one hundred or two hundred miles from their homes, as he asserts.
The existence of such wrongs we think will prove to a great extent to be imaginary. The entire amount of litigation about patents is not large. However, all who own interests in patents, as well as the public in general, are interested in knowing the full extent and nature of the injuries which the innocent infringers are suffering. The Senator will have ample time to present his evidence, and we urge him to make it as fair, strong, and complete as possible. In this way only can his legislative colleagues in the Senate and House become rightly informed and be enabled to vote intelligently. If such disastrous abuses exist as he claims, they should be rectified; and probably this can be done without nullifying the rights of patentees in the broad manner contemplated by the above bill.
The Senator's effort to have his bill sent to the Judiciary Committee was defeated by a vote of 40 to 25, by the prompt action of the Hon. O.H. Platt, of Connecticut, who objected, and in answer to Senator George said:
"As it seems to me, the Patent Committee has been in no way open to the charge of dereliction in dealing with this subject. The bill has never been before that committee, I think, but what it has received consideration and report. I do not mean this particular bill, but I mean bills embracing the same subject; and those bills so reported, if my memory serves me, have in more than one instance received the approval of the Senate. Now, why a bill bringing the same subject again before the consideration of the Senate should be taken from the committee which has heretofore had the consideration of it, as it was supposed properly, and be given to another committee, I cannot see, unless it be for the reason given by the Senator from Mississippi, that the Patent Committee have not reported upon the bill as he thinks they ought to have reported. If that principle is to be adopted in regard to the reference of measures before the Senate, as I said before, it will upset a good deal of the procedure of the Senate, and will reach a great deal further than is thought at the present time."
Senators Teller of Colorado, Chace of Rhode Island, Hoar of Massachusetts, Edmunds of Vermont, and others made remarks adverse to the reference of the bill to the Judiciary Committee.
An Interesting Patent Discussion in the Senate
For several years past the Department of Agriculture has been conducting experiments with a view to promote and increase the production of sugar from cane and sorghum. The more recent of these experiments has resulted in important gains of sucrose by what is known as the diffusion process, which, in brief, consists in reducing the cane by cutters into thin slices, and soaking them in water. The solution is then boiled down in the usual manner.
In this way a larger yield of sucrose or saccharine matter is obtained than by the ordinary process of squeezing between rollers.
In the ordinary process of concentrating the sucrose, much trouble is occasioned by the acidity of the saccharine solution, which caused the inversion of the crystallizable sugar into glucose, resulting in great losses of sugar.
The Department of Agriculture undertook a series of special experiments, having in view the highly important object of discovering a practical mode of preventing the inversion and saving the sugar.
An appropriation of $94,000 was made to carry on these experiments, at Fort Scott, Kansas, under the general direction of Professor Wiley, a distinguished chemist. On July 19, 1886, the Hon. Norman J. Coleman, Commissioner of Agriculture, appointed Professor Magnus Swenson to be superintendent, to conduct the experiments, under the direction of the chemist.
Professor Swenson set to work most energetically, and it was not long before he hit upon the happy idea of preventing the invertive action of the organic acids in the cane chips upon the sugar during the process of extraction by adding lime to the saccharine or diffusion solution.
The remedy proved at once successful, and the important fact was immediately communicated to the Department of Agriculture by Professor Wiley, who gave ample and deserved credit to Professor Swenson for the suggestion and realization of the experiment. This was in December, 1886.
Very soon after making this new and valuable discovery, namely, on December 29, 1886, Professor Swenson applied for a patent, which, after long lingering in the Patent Office, was finally granted on October 11, 1887, number 371,528.
The discovery of Prof. Swenson appears to be rapidly gaining in importance. It seems likely to prove to be the key to the success of the sorghum sugar industry, and unless his patent can in some way be suppressed, he is likely to be handsomely rewarded for his invention. This is looked upon with horror by many people, who may be required temporarily to pay perhaps the one thousandth part of a cent per pound of sugar for the use of a discovery that may add untold millions of wealth to our agricultural resources.
Complaint has already been made to the Senate, and there seems to be a strong disposition in that body to throttle the patent before it has time to swell into a gigantic monopoly, like the barb fence, the driven well, the telephone or the telegraph, or the Standard Oil Company.
On the 15th of December last, Senator P.B. Plumb, of Kansas, submitted a resolution which was passed after being modified as follows:
"Resolved, that the Attorney-General be requested to investigate the issuance of letters patent No. 371,528 to Magnus Swenson, of date October 11, 1887, and if in his judgment the same is invalid upon any ground, or was procured by reason of information obtained from experiments made by the government, and if in his judgment a suit can be maintained in the name of the United States, that he commence suit promptly to have the same canceled or the use of the same by said Swenson or any one claiming under him perpetually enjoined."
Prior to passing the resolution a long discussion took place in regard to the jurisdiction of the Senate, the power of the Attorney General, etc., in which a number of Senators took part; but only a few members made remarks touching the merits of the invention or the rights of inventors who are in governmental employ, etc.
The only man in the Senate who seems to have had the courage to say a word in behalf of the inventor was the Hon. Wilkinson Call, of Florida.
During the progress of the debate, Mr. Plumb said: "The subject matter of this resolution and the issuance of a patent to Mr. Swenson is of very great importance to the people of this country, because if Mr. Swenson's claim is substantiated it may prove that he has a very important control over the manufacture of sugar from sorghum, the value of which has been demonstrated by experiments made by the government, and the opportunity for the obtaining of this patent having been presented to Mr. Swenson by reason of his employment by the government. I should be very glad, therefore, to have the resolution passed, in order that the Attorney-General may be admonished to do whatever he may find legally within his power in the direction of setting aside the patent at an early day.
"If Swenson has a valid patent, he has it upon a mere technicality. Properly speaking, morally speaking, he has no right to a patent. He was in the employ of the general government; every step of the experiment which resulted in the development of this process was taken by reason of the expenditure of the public money, and except for the expenditure of public money this process could not have been developed, at least at the time that it was.
The Hon. J.B. Beck, of Kentucky, said: "From very long experience and observation here, I have found that whenever we constituted a board, whether it was to examine into guns, or ships, or anything that the government wanted, or even to a canceling stamp for the Post Office Department, and when we furnished them the money and all the facilities for making the investigation, and without our money and without the facilities furnished by us they would have had no idea of the suggested matters in the nature of improvements that they afterward patent; and thus we are constantly handicapped by men who have obtained all the information that enabled them to take out their patents through the means and instrumentalities that we have furnished, and through the money we have put into their hands for the purpose of doing it. If there is any way of breaking that up, I want to break it up.
"If I were to go over the history of the last twenty or thirty years of inventions that have been claimed by men who have been the trusted officers of the government to make improvements for the use of the government, in guns and in machinery that we have needed, it would be found that a very large majority of the patents have been taken out by men who were in our employ, and who obtained the information to take them out by the means furnished by the government, and the information elicited under the investigations made with the money of the government. It can do no harm for us at least to get the opinion of the Attorney-General as to what our rights now are, so that we may guard against these abuses by law, if need be, in the future.
Mr. Call said: "I think there is a great deal of doubt whether the resolution ought to pass. I should be very willing to vote for a general law authorizing the Attorney-General to bring suits in all cases where there is reasonable cause to believe a patent invalid; but to declare that he shall bring suit to invalidate this patent because the inventor discovered the invention while in the service of the United States, or on the broader ground contained in the amendment, on account that it was in the course of experiments made by the United States, seems to me utterly illogical. Neither fact affords any ground whatever for declaring the patent invalid. Shall we limit the human mind in discoveries to facts which have not been elicited by government investigation? Why is not an invention as meritorious, why are not the operations of the intellect in discovering some great mechanical principle of benefit to mankind because the facts on which the intellect operated were discovered in the course of experiments made by the government and at its expense? The invention is of as much service, and has as much right, and is as commendable, and ought to be as much encouraged, if he discovers some great benefaction from facts elicited by the government as from some other source. The government has no claims on his thought, on the operation of his intellect, and I think the ground of this resolution therefore is entirely erroneous.
"This resolution declares, so far as the Senate has power to do so, that a man in the employment of the government who makes a new discovery of some law of nature, of some process heretofore unknown, shall not have the advantage of it, simply because he is in the employ of the government, and that all the intellectual faculties belong to it outside of the special purpose for which he is employed. I shall vote against it. A poor man's talent is all that he has, and the government does not need to take that away from him."
Mr. George -- "Suppose the discovery is made in the process of experiments carried on by an employee of the government with the government's money, then what?"
Mr. Call -- "It does not make the slightest difference. The government does not buy the man's brain for anything but the special purpose for which it employs him, namely, for his use of the already ascertained laws of mechanical operation which may be used. It does not contract with him that whatever new discoveries may be made in the vast field of nature shall be compensated for by his employment to use those already known and discovered. There is no such contract, and there ought to be none. If a man discovers some great and new principle, some great benefaction to mankind, shall it be said because it was done with the government's money that it was contemplated in the contract? Certainly the proposition denies itself; the proposition that when a man contracts with the government to render specific services he also contracts for all new discoveries in the unknown realm of nature which may be made by him.
"The government is a poor paymaster at the best, and invention will not be promoted by denying the inventors all benefit from their inventions. On the contrary, the power of monopoly, the power of money, will be promoted by the principle of securing the sale of a man's genius before he has made an invention.
"The Senator from Kentucky said that he had known for many years men in the employ of the government using the government's money in its experiments, and then obtaining a patent for some new invention that had been discovered in the course of their employment. If any such patent has ever been issued, it has been by the fraud of the Interior Department or their ignorance. The law has always been to the contrary. The law has always been that a discovery once used anywhere is a dedication to the public. The invention must be new and unused, and not put in service, or a patent cannot be obtained for it."
Hon. Henry M. Teller, of Colorado, said: "I have no objection to the resolution if the facts are as I understand them in this case, and if the law is, as it seems to me it ought to be, that the man who, while engaged in studying a single question for the government under its pay, discovers something greatly advantageous to the people of the United States while so employed, ought not to be allowed (although it is possible the law may permit it now) to obtain a patent for that discovery. He ought not, in equity and right, to be allowed a patent, and thus take the discovery away from the people and make it useful only to himself."
Hon. John Sherman, of Ohio, said: "This invention, made by an employee of the government with the aid of large expenditures of the government, is said to be one of the most valuable and important inventions made of late years, especially in regard to an industry that at this time excites more interest among the people of the United States than any other industry, that is, the question how to utilize the sugar in the beet and in the cane -- sorghum in the various forms. If this patent is allowed to stand in the way of the active experiments that are being made in the important processes, it will prevent the planting of beets; it will prevent the growth of sorghum; it will prevent further inquiry into the best means of making sugar from the various agricultural products which have been proposed; it will stop the experiments made by the government of the United States; and it is therefore not a slight thing. It is a matter of vital importance.
"I think we have the right, as the Senate of the United States, to direct the attention of the Attorney-General to this matter; to inquire in the first place whether he has the power to test the validity of this patent without an act of Congress; and in the second place to give us such information upon the subject as will enable us to prepare a bill that will enable the government of the United States in honor to withdraw its patent in case it has been illegally or fraudulently obtained."