33rd Congress, 1st Session, House of Reps, Ex Doc 39
Report of the Commissioner of Patents for the year 1853
United States Patent Office, January, 1854
Sir:
Agreeably to the 14th section of the act approved 3d March, 1837, entitled "An act in addition to the act to promote the progress of science and the useful arts," I have the honor to submit herewith my annual report.
The following statement will show the receipts and expenditures of the Office during the past year:
No. 1
Statement of moneys received at the Patent Office
during the year 1853
Received on applications for patents, reissues,
additional improvements, and extensions, and on
caveats, disclaimers, and appeals $110,565.00
Received for copies and for recording assignments 10,939.70
Received from sale of old iron 22.75
___________
Total receipts $121,527.45
No. 2
Statement of expenditures from the Patent Fund
during the year 1853
For salaries $44,826.77
For compensation of librarian 1,200.00
For temporary clerks 23,205.28
For contingent expenses, viz:
For ordinary expenses $17,590.57
For furnishing rooms in the new
building, painting the old, and
making cases for rejected models,
etc. 11,923.35
_________ 29,513.92
For agricultural statistics and purchase of seeds 7,086.49
For payments to judges in appeal cases 50.00
For refunding money on withdrawals 23,466.64
For refunding money paid by mistake 225.00
_________ 23,691.64
_________
$132,869.83
Making an excess of expenditures over receipts
during the year of $11,342.38
==========
No. 3
Statement of the Patent Fund
Amount to the credit of the Patent Fund
Jan. 1st, 1853 $40,292.38
Deduct from this:
The excess of expenditures during the year 1853, viz 11,342.38
_________
Leaving in the treasury, 1st January, 1854 $28,950.00
==========
In addition to the amount already paid for fitting up the rooms in the new building, there are several bills outstanding, amounting to about $3,500, which will diminish by that amount the sum above reported as being still in the treasury.
A contract has also been made to pay $10,800 for the iron frames for the lower tier of cases necessary to be placed in the large hall in the east wing of the Patent Office. The finishing of those cases, and procuring an equal number of cases of wood for the upper tier, and other necessary fixtures for that hall, are estimated to swell this last mentioned sum to $30,000, which would more than absorb the entire amount in the treasury to the credit of the Patent Fund.
There are, besides, at least 2300 applications which have been rejected by the Office, in which the amounts liable to be withdrawn have not yet been demanded. In each of these the applicant is entitled to withdraw two thirds of the fee paid by him, making at least $46,000 of additional liability subject to be called for at any time.
From the above statement it will be seen that the Office has already incurred liabilities which it is unable to meet. A justification for the course pursued will, it is hoped, be found in the great necessity of the case.
Congress had made no provision for these expenses. The convenience of all those connected with the Patent Office required the furniture which has been procured; and the condition of the models, which are to occupy the large hall in the east wing, imperatively demand that this hall should be fitted for their reception at the earliest day practicable. Had the matter been postponed till Congress should make the necessary appropriation, much time might elapse before the bill for that purpose would become a law. Sixty days notice must then have been given before a contract could be made, and several months more for the contractors to complete the works, so that the hall might not be ready to be occupied for a year to come. Under these circumstances, it was thought expedient to take the responsibility of contracting to pay these expenses from the Patent Fund, and trust to Congress to refund the amount so far as it should be found necessary. Should these reasons be deemed sufficient to justify the course pursued, it is respectfully suggested that immediate measures be taken to refund the amount paid by the Patent Office for furniture, to meet the amount that will be due when the iron cases are delivered, and also to furnish the means for immediately providing the other furniture for the large hall. This will be ready in a few weeks for the reception of the cases. The iron cases are to be here by the first day of February next, and the other fixtures can also be soon completed, if contracts for that purpose be made at once. If all this is done, the Patent Office will have a little over $40,000 in its treasury, which, considering the liability for withdrawals above stated, is not much more than should be found there.
Appended hereto will be found a list of all the patents that have been granted during the year, together with an alphabetical list of the patentees, with their places of residence; also, a list of all the patents which, during the same period, have become public property.
The whole number of patents issued during the year is 958, including 24 reissues, 3 additional improvements, 12 extensions, and 75 designs.
The whole number which have expired is 375.
The number of applications made, and the number of patents issued, in each of the last thirteen years, are as follows:
Table exhibiting the business of the Office for thirteen years, ending December 31, 1853
Year Applica- Caveats Patents Cash received Cash expended
tions filed issued
filed
1841 847 312 495 40,413.01 23,065.87
1842 761 391 517 36,505.68 31,241.48
1843 819 315 531 35,315.81 30,766.96
1844 1,045 380 502 42,509.26 36,244.73
1845 1,246 452 502 51,076.14 39,395.65
1846 1,272 448 619 50,264.16 46,158.71
1847 1,531 553 572 63,111.19 41,878.35
1848 1,628 607 660 67,576.69 58,905.84
1849 1,955 595 1,070 80,752.78 77,716.44
1850 2,193 602 995 86,927.05 80,100.95
1851 2,258 760 869 95,738.61 86,916.93
1852 2,639 996 1,020 112,656.34 95,916.91
1853 2,673 901 958 121,527.45 132,869.83
From this it will be seen that although the receipts of the Office have been $9,471.11 greater than during the year previous, the expenditures have increased in a much greater proportion, exceeding the whole income by $11,341.38. If the amount of $11,923.35, which has been paid for furniture, as above stated, were to be refunded, it would bring the expenditures slightly below the receipts. The excess of receipts over expenditures would have been about the same as usual but for two circumstances. First, an undue proportion of the amount expended for agricultural purposes stands charged to the last year's account, in consequence of those expenses being paid from parts of two separate appropriations. Our fiscal year begins on the first of January instead of the first of July, and it has so happened that most of the payments have been crowded into the closing portion of the last fiscal year, and into the first six months of this. Secondly, the number and compensation of the clerks in this Office have been considerably increased, mainly in consequence of the act of the last session of Congress, classifying the clerks in the different departments.
The large accumulation of the Patent Office fund occurred principally prior to the establishment of the system of examinations. On the first of January, 1837, it amounted to upwards of $300,000. Since that time the average amount of receipts over expenditures has not exceeded $10,000 per annum.
The labor and expense of making examinations is every year increasing as the field for examinations is constantly and rapidly widening. The Office is not justified in allowing a patent to issue until fully satisfied, as far as it has the means of becoming so, that the same invention has not been patented in this or any foreign country, nor been described in any printed publication, nor even been discovered in the United States. The models and portfolios of the Patent Office, and all printed publications in the library are, therefore, to be constantly examined, and, as these rapidly increase, the labor is augmented somewhat in the same proportion.
To give some idea of the amount of this labor, and of the rapidity of its increase, it may be stated that there are now in the Office very nearly 25,000 models, and about the same number of drawings in the portfolios. The number received within the last nine years is a little upwards of 17,000, and the number filed within the past year nearly 3,000.
The number of volumes in our library at this time is about 5,750; in 1847 it was only 1,850. There have been 1,550 added during the past year; most of these are works which require to be frequently referred to by the examiners in the course of the year.
From these facts it can be understood how the labor of examination is constantly increasing, and how the examinations of applications which once required but one examiner can now be scarcely performed by eighteen. The preceding table shows also that the number of Patents issued during the past year is considerably less than during the year previous. This is principally to be attributed to the fact that the changes and vacancies which occurred near the close of 1852 and in the early part of 1853, as well in the office of commissioner as in those of some of the examiners, left the Office less efficient than it would otherwise have been.
The following table shows that the number of Patents issued during the last six months of the year is 583, against 375 issued during the first six months. With the present force, and their constantly increasing experience, it will be practicable to issue 1,200 Patents during the ensuing year.
The whole number of patents issued during each month of the past year is as follows:
In the month of January 59
" " February 39
" " March 49
" " April 68
" " May 79
" " June 81 = 375
" " July 79
" " August 100
" " September 82
" " October 124
" " November 126
" " December 72 = 583
___________
Total 958
===========
The number of cases on hand and undisposed of on the last day of each month in the year is as follows:
January 544 July 948
February 692 August 900
March 782 September 757
April 859 October 675
May 945 November 614
June 1028 December 582
These arrearages had augmented from 155 on the first of January, 1852, to 481 on the first of January, 1853. It will be seen that they constantly and rapidly continue to increase till the first of July, since which time they have been gradually diminishing.
On that day the act of the last session of Congress took effect, which gave the Patent Office eight clerks of the second class. As their duties are not prescribed by law, it was deemed expedient to detail one of their number to act as a second assistant examiner, in each of the six examiners' rooms. The experiment has fully answered the purpose intended, and will require to be made permanent. Even that augmentation of force will not be sufficient to keep the business of the Office in that state of forwardness which the wants of the country require, and additional arrangements should be made, if it is intended that applications shall be acted upon promptly as soon as made.
One of the objects sought to be accomplished by the appointment of this additional force, is to have a number of suitable persons in training, and ready to fill any vacancies in the corps of examiners proper, that may at any time occur. These vacancies not unfrequently result from resignations, caused by the fact that a person well qualified for an examiner finds a more profitable employment elsewhere than in the Patent Office. One remedy for this would be to increase the compensation of the examiners; another, to prepare for filling the vacancies when they occur. The latter of these has been to some extent resorted to; the former, if deemed desirable, will require the further action of Congress.
The Patent Office should command the highest order of talent. There is no person, whatever be his abilities or his attainments, who would not find, as an examiner, full exercise for all his talents. A practical sound sense is nowhere more important. All learning connected with the arts and sciences finds here an ample field for exercise; and even questions of law, that tax to their utmost the abilities of the most learned jurists, frequently present themselves for the decision of the Office, and should be rightfully decided by the examiner.
The compensation of the lowest class of examiners should be such as to command abilities that, with proper training, would grace the highest; and the compensation of all should be sufficient to induce each one in this employment to content himself with making it a business for life, as the information he is daily acquiring is constantly increasing his usefulness.
From the fact that the Office during the last six months has been constantly gaining upon the work before it, there may be thought no necessity for an augmentation of its force. But the exertions of the past six months have rather overtasked some of the examiners; and as the number of applications is annually increasing, it will be very difficult to overcome the heavy arrearage still standing against us. When that is effected, much of the force of the Office might be very advantageously employed in digesting an indexing the books of reference belonging to the Office.
From the present number and rapid increase of our models, drawings, and books of reference as above shown, it is evident that the only way of preventing the Office from being overwhelmed with its increasing labors, is by systematizing and arranging every thing.
The increased space, of which we have an early promise, will enable us to do this with regard to the models and drawings; but with regard to the books of reference the case is more difficult. Many of these are wholly without indices. In other cases works containing from fifty to a hundred volumes have only a separate index to each volume. A reasonable amount of time appropriated to consolidating these indices and to digesting and arranging the works in the library, would be undoubted economy; and by promptly reducing all new works to the same system of order and arrangement, augmentation will not tend to produce confusion, or even sensibly to increase the labor of examination.
Any increase of force will absolutely require increase of room for its accommodation. But for this difficulty a further number would before this time have been detailed on this duty, sufficient to have disposed of the greater portion of the present amount or arrearages, so that an application could have been acted upon within a few days after it was filed. The inability to do this is one of the greatest grievances of which inventors have to complain, and should be soon removed.
In fact, the present accommodations are altogether insufficient for the present force; one set of examiners, consisting of the principal and his two assistants, have to occupy a single room. Applicants and their agents must constantly have more or less intercourse with these examiners; the models of cases under examination are thus to some extent exposed to the observations of those who may make an improper use of such an opportunity. There should be a means of preserving greater secrecy than is now possible. Each set of examiners should be provided with two rooms, into one of which, containing the models of cases under examination, no one except a sworn officer should ever be permitted to enter.
The limited space assigned to the models in the Office has long occasioned serious inconvenience, and been the cause of just complaint by inventors. The crowded condition of those models not only prevents a proper arrangement, but necessarily exposes them to constant danger of injury and destruction. A large portion of them are consequently in a crippled condition, very discreditable to the Office, and detracting much from its usefulness.
So far as the patented models are concerned, this difficulty will be remedied as soon as the large hall of the east wing is ready for their reception. The space they now occupy will be barely sufficient, when divided into suitable rooms, for the proper accommodation of the library, the examiners, and the machinist.
The large number of models belonging to rejected applications would therefore still be left in their present condition, which is constantly growing worse as their number continues to augment. The law requires these to be arranged and preserved in the same manner as those of patented inventions. If a discrimination were allowed, some of these, being mere duplicates of other models, or representing contrivances wholly unpatentable, might be dispensed with, which would partially relieve their present crowded condition. But a considerable proportion of these rejected models are almost as useful as those of patented inventions. They show the different shapes in which, what the Office would regard as the same invention substantially, may present itself, and often furnish a far more satisfactory reference on which to reject a new application than could be otherwise obtained. For these reasons those models should, if possible, be brought from their present dark and incommodious recesses in the basement, and exposed to the clear light of the upper day, suitably arranged for convenient and ready examination.
There seems no other practicable way of effecting this object than to get possession of the large hall, now principally occupied by curiosities brought home by our exploring expeditions. These curiosities have no natural connection with the Patent Office, and would find a much more appropriate resting place within the walls of the Smithsonian Institution. There is plenty of room within that building for the reception and proper arrangement; and the only obstacle in the way is the expense attendant upon the care and custody of these various articles, which those who have the management of that institution do not feel authorized to defray out of its limited income specially appropriated to other purposes. A small annual appropriation for this purpose by Congress would remove the difficulty that now prevents the restoration of this large hall to the use for which it was designed. It is respectfully submitted whether the dictates of sound policy, and even simple justice, do not require this small expenditure, in order that room should be provided in the Patent Office for the full exhibition and complete arrangement of all our models. If this were done, not only could all our models be properly disposed of, but specimens of fabrics and other manufactures and works of art, might be classified and arranged in the manner which the law now requires, but which requirement absolute necessity has always compelled the Office to disregard.
The rate of fees required to be paid into the Office needs a thorough revision. Perhaps they will require to be somewhat augmented; since, while the salaries and the number of persons in the Office have been all the while increasing, the fees have remained unchanged.
But an augmentation in amount is not so important as changes in other respects. It is believed that a tariff might be adopted which would be quite as acceptable to the inventors as the present, and at the same time bring a much greater income into the Office. If, for instance, the whole system of withdrawals were at once abolished, so that the inventors could keep their money in their own pockets until it was required to be paid, and when once paid it were never to be withdrawn, the fees might be even less than they are at present, and at the same time the available amount paid into the treasury would be greater.
Such an arrangement would be much more convenient for the Office, saving some labor, and the transmission of a considerable amount of money from the Office back to the unsuccessful applicant, and enabling us to know at any time the exact condition of our reliable finances, instead of having, as at present, near $50,000 lying idle in the treasury without a known owner. That money might have been much more usefully employed at home until it was wanted here.
Another change connected with this subject which seems to be imperatively called for, relates to the fee required of foreigners. That fee seems to the undersigned enormous and indefensible upon any principle of justice or sound policy. If a Patent is to be regarded as a downright gratuity conferred by the Government on the inventor, simple equity dictates that we should not impose more onerous conditions on the subjects of other governments than those governments exact from our own citizens. The stern rule of retaliation would ask for nothing more than such reciprocity.
Within the last two years Great Britain has greatly diminished her former high rate of Patent fees. It is believed that in no country in Europe are our citizens taxed for these purposes as severely as we now tax theirs. It is well known that some European governments impose a lower rate of fees on an American citizen than he would be required to pay by this Office; and yet we continue to charge a British subject $500, and any other alien $300, for that which we grant to our own citizens for $30.
But the granting of a Patent is not a mere gratuity by the Government; it is the recognition of an evident right in the inventor. No title to property can be more just or valid than his who has created that property. The rule of natural justice is the same in this respect whether the inventor be a citizen or an alien. It is right that the Government should charge the patentee with the expense of securing him in his title to what was before rightfully his own; but it is questionable whether a revenue should be sought from this source except in cases of great necessity. Is there any sufficient reason why the general rule should be departed from in the case of an alien?
It may seem reasonable that we should charge an alien the same fee that his government would charge one of our own citizens under like circumstances; but it should be recollected that European governments make no discrimination between natives and foreigners. The high or low rates are the same for all. Under such circumstances retaliatory measures are not resorted to by us in regard to any other subject.
The oppression to which an alien is subjected at home has never been held as a reason for oppressing him here, even prior to his taking steps to become a citizen. If he holds real estate, we do not levy extraordinary taxes thereon commensurate with what that same property would be taxed if owned in his country by one of our citizens. Why should a different rule be followed in regard to property in an invention?
But there is a reason, founded in sound policy, why greater liberality should be exercised toward a foreign inventor than toward the alien owner of tangible property. He pays a consideration, which the other does not; by taking out a Patent, he makes the subject thereof public property at the end of fourteen years. The benefits of the invention are then secure, and can never be lost to the world. High charges deter inventors from parting with their secrets. Many an invention is thus strangled in its birth, which, under other circumstances, might have been developed into something of vast consequence to the world.
There are no lost arts under a liberal and well-regulated Patent Office system; and this is one of its great advantages. if foreign nations choose to place these chief means of human progress in subordination to the requirements of their respective exchequers, we are forbidden to imitate them, both by the condition of our treasury and the well established policy of our government.
Finally, while we extend the free and full benefits of all our institutions to the alien who comes hither to seek them, should not a course equally liberal be pursued in regard to inventions. -- the creations of his ingenuity? Why should these be subjected to incapacities and discriminating taxation? In regard to them should not the whole world be regarded as one republic, of which we should seek to render our Patent Office the capital, wherein every region should be permitted a free representation? We tolerate no onerous discriminations against the foreign exhibitors in our Crystal Palaces. At the cannon's mouth we extend the protection of our flag to the alien who has simply declared his purpose of becoming a citizen, in the same manner as though he were native born. Ought we to levy a discriminating tax upon the offspring of genius that seek our shores for the express purpose of being naturalized among us?
From the preceding considerations it seems evident that a great change should be made as to the fees required from foreign applicants. It is respectfully submitted, whether the most convenient, wise, and beneficial rule will not be to abolish all distinctions growing out of geographical considerations, and to charge every applicant a fair remuneration for the trouble given by him to the Office, but no more.
Such a course would be just, generous, and noble; seeking to raise no revenue from those who are the special instrument of human advancement, showing a confidence in the capability of our own inventors to cope on equal terms with those of all the world besides, and taking no inconsiderable step in bringing about that great brotherhood of nations for which a higher civilization is gradually preparing the world.
A change in the manner of taking testimony to be used in cases pending before the Patent Office seems indispensable. There is at present no power to compel the attendance of a witness in such cases, nor to oblige him to answer questions; and it is even doubtful whether he can be punished for perjury. It will not be difficult to provide a remedy for this defect. It will be even practicable to enable a party to obtain a compulsory affidavit, or, in other words, to take an ex-parte deposition, to be used the same as in an affidavit, which would often be a matter of very great consequence.
The present mode of appealing from the decisions of the Office is extremely inconvenient, and in many respects objectionable. The Patent Office should possess within itself the entire power to act upon a case up to the time when the Patent Issues. The whole matter should then be turned over to the Judiciary. If it be thought expedient to have the action of a strictly legal mind brought to bear upon a Patent before it issues, that mind should form a portion of the Patent Office itself, and be made to exercise a supervisory influence upon all the Patents that are issued by the Office. At present the appellate power is vested practically in either of two highly respectable and intelligent judges, either of whom, under proper circumstances, would no doubt be able to exert a salutary supervisory influence over the Office and its decisions. But the two do not act cojointly, and therefore unity of decision is hardly possible. A few cases go up by appeal out of the hundreds that are decided by the Office. The appellate, and therefore controlling power, cannot be expected under such circumstances to give tone and character to the action of the Office. Besides, under the present practice, the drawings and models have to be removed from the Patent Office to the offices of the respective appellate judges; away from the custody of the proper keepers, they are often injured, and always liable to be destroyed or lost.
If it is though expedient to have as wide a range for appeals as at present, it is believed that a much more convenient and judicious arrangement would be found in having a judicial officer to hear appeals from the decisions of the examiners, with the power of ultimate appeal to the commissioner.
Many other minor improvements in the practice of the Office might be suggested; but they would look to a general change in the existing law on the subject. Should such a course be thought expedient, suggestions can readily be made to those having the matter in charge.
There is one very important question, entirely surrounded with difficulties, which deserves a passing notice. It relates to the practicability of preventing the protracted and expensive controversies that are almost sure to absorb a great portion of the value of every truly valuable patent during its proper lifetime, and which lay the foundation for many of the claims for extension presented to this Office.
To remedy this evil some have proposed that notice of the pendency of applications for Patents should be published, and that the Patent afterwards obtained should convey an absolute unquestionable title. But on the other hand it has been contended that this would introduce greater evils than it would cure; inasmuch as it might work a great injustice to many who would never hear of the notice, or who might not then be in a condition to engage in the controversy. Others have only proposed that after such a notice the Patent should be incapable of being collaterally brought into question, and, like a judgment at law, only be liable to be assailed by a direct proceeding, which would cut off much of the present litigation. But in opposition to this it has been objected that by giving such notice many a poor inventor would be harassed and prevented from procuring his Patent, which, if once obtained without the knowledge of evil-disposed opponents, might be at once turned to account. This objection has no small weight.
The least objectionable course on this subject (if any thing is to be done) would seem to be to allow the patent to issue without notice, as at present, and to possess only its present validity; but that the applicant, either in the beginning or at any subsequent time during its lifetime, should be permitted, if he thought proper, to have the notice given; and that the Patent, if afterwards obtained, should not thereafter be capable of being collaterally assailed.
It will be seen that the usual reports of examiners are herein omitted. This has been done in part because it was believed that their time might be more usefully employed; and in part because such reports rendered it almost impossible to avoid invidious distinctions between patentees who suppose themselves equally meritorious. It was thought a better choice to give a clear and brief description of each patent, without further comment, and leave it to the public to make the proper discriminations. A mere publication of the claims, as has hitherto been done, conveys in most cases no adequate idea of the different inventions. It is confidently believed that the advantages resulting from having the Patents more fully described, and those which require it, or which could in that manner be made more perspicuous, accompanied by a cut showing the parts referred to, would be amply sufficient to justify the expense attending upon such an arrangement. The report has therefore been drawn up with a view to such an illustration of the different Patents.
The attention of Congress is invited to the importance of providing some adequate means of preventing attempts to obtain patents by improper means. Several cases have occurred during the past year wherein persons interested in pending cases have sent or offered money to the examiners having those cases in charge, for the purpose of securing favorable action upon their respective applications. This has sometimes apparently been done through ignorance or thoughtlessness, but in other cases evidently with a premeditated corrupt intent. In cases of this kind it seems proper and necessary that penalties commensurate with the enormity of the offense should be visited upon the heads of willful transgressors.
Respectfully submitted,
Charles Mason, Commissioner
Hon. Linn Boyd
Speaker of the House of Representatives