Annual Report of the Commissioner of Patents for the year 1877
To the Senate and House of Representatives of the United States of America in Congress assembled:
In compliance with section 494 Revised Statutes, I submit the following report for the year ending December 31, 1877:
1. Statement of moneys received
Amount received on applications for patents,
reissues, designs, extensions, caveats,
disclaimers, appeals, and trademarks $651,569.00
Amount received for copies of specifications,
drawings and other papers 48,193.01
Amount received for recording assignments 20,047.15
Amount received for subscription to the Official
Gazette 9,497.69
Amount received for registration of labels 3,036.00
___________
Total $732,342.85
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2. Statement of moneys expended
Amount paid for salaries $398,024.54
Amount paid for photolithographing current issues 36,103.13
Amount paid for photolithographing back issues 30,303.02
Amount paid for illustrations for Gazette 41,084.34
Amount paid for tracings of drawings 33,306.73
Amount paid for contingent and
miscellaneous expenses, viz:
Stationery $5,918.98
Painting, glazing, varnishing,
upholstering, etc. 830.57
Furniture, carpets, etc. 2,120.78
Fitting up cases in model rooms,
carpenters' work, lumber, and
repairing furniture 7,262.41
Plumbing and gas fitting 107.95
English patents and foreign periodicals 1,334.53
Hardware 611.15
Pay of temporary clerks and extra laborers 44,525.26
Miscellaneous items, viz: Books for
library, ice, subscriptions to journals,
freight, washing towels, withdrawals,
money refunded paid by mistake, repairing
carriage and harness, keeping horse,
advertising, printer's material, rubber
stamps, drawing instruments, cleaning
carpets, paste, disinfectants, file
holders, decisions of courts, expenses
attending preservation and protection
of file records and property in the
Office at fire of September 24, 1877,
and during subsequent rains, etc. 8,942.73
_________ 71,654.36
__________
Total 610,476.12
==========
3. Statement of the balance in the Treasury of the United
States on account of the patent fund
Amount to the credit of the patent fund
January 1, 1877 $992,354.67
Amount of receipts during the year 1877 732,342.85
____________
Total 1,794,697.52
From which deduct expenditures for the year 1877 610,476.12
____________
Balance January 1, 1878 1,114,221.40
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4. Statement of the business of the Office for the year 1877
Number of applications for patents, including designs,
during the year 1877 20,308
Number of applications for reissues of patents 639
Number of patents issued, including designs 13,619
Number of patents reissued 568
Number of applications for extension of patents 2
Number of patents extended 2
Number of caveats filed during the year 2,809
Number of patents, including designs, expired during
the year 862
Number of patents allowed but not issued for want of
final fee 807
Number of applications for registering trade marks 1,416
Number of trade marks registered 1,216
Number of applications for registering of labels 632
Number of labels registered 392
======
Of patents granted, including designs, there were to --
Citizens of the United States 13,029
Subjects of Great Britain (including Canada, 145) 362
Subjects of France 72
Subjects of Germany 91
Subjects of other foreign governments 65
_______
Total 13,619
5. Number of patents, including designs, issued by the
United States Patent Office to residents of the different States
and Territories from January 1, 1877 to December 31, 1877
(The proportion of patents and designs to population is shown in
the last column)
States. etc Patents & One to
designs every
Alabama 43 £3,413 [sic]
Arizona Territory 2 4,829
Arkansas 36 13,513
California 341 1,642
Colorado 28 1,423
Connecticut 607 885
Dakota Territory 6 2,365
Delaware 28 4,464
District of Columbia 123 1.060
Florida 14 13,410
Georgia 63 18,795
Idaho Territory 1 14,999
Illinois 1,046 2,429
Indiana 450 3,734
Iowa 488 2,655
Kansas 103 3,538
Kentucky 151 8,748
Louisiana 79 9,073
Maine 132 4,749
Maryland 192 4,067
Massachusetts 1,392 1,046
Michigan 383 3,091
Minnesota 146 3,011
Mississippi 39 21,228
Missouri 365 4,715
Montana Territory 36 3,416
Nevada 24 1,770
New Hampshire 78 4,080
New Jersey 502 1,804
New Mexico Territory 3 30,624
New York 2,496 1,755
North Carolina 51 21,007
Ohio 1,083 2,460
Oregon 38 2,392
Pennsylvania 1,515 2,325
Rhode Island 212 1,025
South Carolina 34 20,753
Tennessee 114 11,039
Texas 115 7,117
Utah Territory 4 21,696
Vermont 58 5,733
Virginia 100 12,251
Washington Territory 9 1,014
United States Army 14 ----
United States Navy 2 ----
______ ________
13,029 2,959
Foreign 590
_______
Total 13,619
6. Comparative statement of the business of the Office from 1837 to 1877, inclusive
Years Applica- Caveats Patents Cash Cash Surplus
tions Filed Issued Received Expended
1837 435 $29,289.08 $33,506.98
1838 520 42,123.54 37,402.10 $4,721.44
1839 425 37,260.00 34,543.51 2,716.49
1840 765 228 473 38,056.51 39,020.67
1841 847 312 495 40,413.01 52,666.87
1842 761 391 517 36,505.68 31,241.48 5,264.20
1843 819 315 531 35,315.81 30,766.96 4,538.85
1844 1,045 380 502 42,509.26 36,244.73 6,264.53
1845 1,246 452 502 51,076.14 39,395.65 11,680.49
1846 1,272 448 619 50,264.16 46,158.71 4,105.45
1847 1,531 553 572 63,111.19 41,878.35 21,232.84
1848 1,628 607 660 67,576.69 58,905.84 8,670.85
1849 1,955 595 1,070 80,752.78 77,716.44 3,036.54
1850 2,193 602 995 86,927.05 80,100.95 6,816.10
1851 2,258 760 869 95,738.61 86,916.93 8,821.68
1852 2,639 996 1,020 112,656.34 95,916.91 16,739.43
1853 2,673 901 958 121,527.45 132,869.83
1854 3,324 868 1,902 163,789.84 167,146.32
1855 4,435 906 2,024 216,459.35 179,540.33 36,919.02
1856 4,960 1,024 2,502 192,588.02 199,931.02
1857 4,771 1,010 2,910 196,132.01 211,582.09
1858 5,364 943 3,710 203,716.16 193,193.74 10,592.42
1859 6,225 1,097 4,538 245,942.15 210,278.41 35,663.74
1860 7,653 1,084 4,819 256,352.59 252.820.80 3,531.79
1861 4,643 700 3,340 137,354.44 221,491.91
1862 5,038 824 3,521 215,754.99 182,810.39 32,944.60
1863 6,014 787 4,170 195,593.29 189,414.14 6,179.15
1864 6,972 1,063 5,020 240,919.98 229,868.00 11,051.98
1865 10,664 1,937 6,616 348,791.84 274,199.34 74,593.50
1866 15,269 2,723 9,450 495,665.38 361,724.28 133,941.10
1867 21,276 3,597 13,015 646,581.92 639,263.32 7,318.60
1868 20,420 3,705 13,378 684,565.86 628,679.77 52,866.09
1869 19,271 3,624 13,986 693,145.81 486,430.78 206,715.03
1870 19,171 3,273 13,321 669,476.76 557,149.19 112,307.57
1871 19,472 3,624 13,033 678,716.46 560.595.08 118,121.38
1872 18,246 3,090 13,590 699,726.39 665,591.36 34,135.03
1873 20,414 3,248 12,864 703,191.77 691.178.98 12,012.79
1874 21,602 3,181 13,599 738,278.17 679,288.41 58,989.76
1875 21,638 3,094 *16,288 743,453.36 721,657.71 21,795.65
1876 21,425 2,697 *17,026 757,987.65 652,542.60 105,445.05
1877 +20,308 2,809 +13,619 732,342.85 #613,152.62 119,190.23
+ Including designs
# Including $2,677.50 expended for restoring models, etc. damaged by fire
* Includes trademarks and labels
RECEIPTS AND EXPENDITURES
The above tables show a diminution in the receipts, expenditures, the number of applications filed, and the number of patents granted, compared with some previous years.
The number of applications for patents fluctuates from year to year, owing to many different causes; but there is no doubt that the increased facilities which this Office, but its publications, has afforded the public in the matter of the examination into the state of the various arts, have affected, and will continue to affect, to a great extent, the number and character of applications, as well as patents. A less number of applications, covering old fields of invention, will be filed, and a corresponding improvement will be found in the character of patents granted.
The receipts for this Office for the past year in fees have exceeded its entire expenditures, not including the printing, to the amount of 121,867.73. If comparison were made alone between the amount of receipts and the amount of current expenses, the surplus of receipts would be about $180,000, nearly $60,000 being paid during the past year for the reproduction of patents issued prior to 1871, and not properly chargeable to the current expenses of the Office.
The total amount of expenditures for the past year, $610,475.12, is less than any year since 1871. This reduction is due, in part, to the smaller appropriations for the reproduction of the drawings of old patents. It should be added that a large draft has been made on the contingent fund by reason of the late fire.
PHOTOLITHOGRAPHIC REPRODUCTION OF DRAWINGS
The work of making copies of the drawings of patents granted prior to 1871, by reproducing them by the photolithographic process, was commenced in the summer of 1871.
The first step necessary to be taken in preparing the original drawings to be photolithographed is tracing the same with ink on muslin by hand. This preparatory work for the entire number of old drawings, amounting to 100,000, will be completed by March 31, 1878. The completion of 150 photolithographic copies of each of these drawings will speedily follow. Unfortunately, the recent fire destroyed about 31,000 and injured 16,000 more of the sets of photolithographs. The copies entirely destroyed include the important classes of Agricultural Implements, Land Conveyances, and Philosophical Instruments. For their reproduction an appropriation of $30,000 will be elsewhere asked, and is now, also, earnestly recommended. But no new tracings of the drawings just mentioned will be necessary.
The importance of this work cannot be overestimated. For the convenience of the Office and the public, the subjects of inventions are divided into 158 classes. The drawings of each class are numbered, named, and dated to correspond with the patents, and arranged in suitable portfolios, so that they can be easily inspected in making examinations into the state of the art. Drawings for sale are similarly arranged. It will be seen at a glance, under such arrangement, how valuable to the public is an accessible collection of patented drawings, and the great outlay necessary to their production will be more than repaid in a few years by the proceeds derived from the sales of the photolithographic copies. These proceeds already amount annually to ten or twelve thousand dollars.
PRINTING OF PATENTS GRANTED PRIOR TO 1867
Closely allied to this subject of the reproduction of the drawings of back issues are the considerations which indicate the necessity for reproducing the specifications of patents granted prior to November 20, 1866. By some strange oversight the government neglected, up to that time, to print the patents. To fill the constant demand, therefore, the office is compelled to furnish manuscript copies of the specifications of inventions patented prior to that date, at the rate of ten cents per folio of one hundred words. This is a tedious and expensive process. Fifty or more copyists are constantly employed for this purpose; but even with this force orders are often delayed, greatly to the detriment of private and public interests. Under the present system, requiring examination of every application filed, the necessity is forced upon the Office and the public of looking through this vast mass of manuscript matter to ascertain the previous state of an art. Except by means of expensive copies, this wide field of information is not open to the public outside of Washington; and the business of the United States courts, in patent matters, is frequently delayed and embarrassed by the same slow and imperfect process of procuring copies of these valuable public documents. The manuscript certified copies furnished by the Office add to the tediousness and expense of suits. To the public generally, the information contained in the mass of manuscript in the Patent Office is practically inaccessible, and people often pay royalties, in ignorance of their rights, or because it is cheaper than to attempt any search through the manuscripts of American patents. The public pay annually tens of thousands of dollars for infringement examinations, and some of the older manuscript volumes in the Office are nearly worn out by the repeated perusals. I think there is no tax which inventors and manufacturers would so cheerfully pay as that which should be imposed for the purpose of printing these documents. In consideration of these facts I would urgently recommend that the reproduction of these specifications be authorized at as early a day as possible, so that the work may be proceeded with as rapidly as the interests of the service demand and the facilities of the office permit. For this work an appropriation of $20,000 would prove ample for the next fiscal year. The sales of these copies, like those of the back drawings, would, at very moderate rates, soon reimburse the government for the outlay, so great is the demand for completed classes of patents.
TRANSFER OF PRINTING TO THE PATENT OFFICE
I desire also to call attention to the present mode of printing specifications for patents. This, like other printing, is done at the Government Printing Office. But the conditions under which this printing is done differ from those attending other public printing: First, patents are issued each week, and the specifications, as soon as the fees are paid, must be at once printed. This makes the time required an important element in the performance of the work. Second, as the specification is a legal document, necessarily describing and defining by technical and exact terms the nature of the grant, something more is needed than ordinary proof-reading. It is necessary frequently to refer to the Examiners, and to consult with them upon the correction of errors. It has therefore been found indispensable, in order to save frequent reprinting, to subject the proof-sheets of specifications to another proof-reading in the Office after that of the Government Printing Office, so that the papers must be carried back and forth before the work of each week is completed. If the work could be done in the Office, under the immediate supervision of the Commissioner and the Examiners, I am confident it could be done more expeditiously, with considerable saving, and more accurately. The amount each week does not average above four hundred pages. In connection with this, the Commissioner might, if permitted by law, also print copies of such of the old specifications heretofore referred to as should be ordered by the public, without additional expense, using for this purpose only from the ordinary appropriation for making manuscript copies. The regular price charged according to law, ten cents per folio, would pay the greater part of the cost of printing. Fifty additional copies might be printed, which would remain as a stock on hand for the supply of other demands and as a source of revenue.
In connection with this matter it may be well to consider the fees paid upon the issue of the patents. The final fee of $20 was established by law when the applicant furnished the copy of the drawing which was to be attached to his patent, and when the copy of the specification accompanying the patent was in manuscript, and only a single copy was made. As no discrimination could be exercised in the amount of fees charged to cover the expense of the examination, whether the case was simple or complex and difficult, it was not deemed advisable to make any distinction in any respect, and the same fee was required in all cases. But under the present plan of printing the specifications and drawings, the government furnishes more for the same amount of money, and the difference in cost to the government between patents requiring a large number of printed pages of matter and numerous sheets of drawings and those requiring few is of great importance, and easy to estimate with reasonable accuracy. Patents are sometimes issued in which the whole fee paid by the applicant would not cover the cost of setting the type for printing the specification. Either the government loses in such cases, or parties taking out patents for simple inventions contribute to defray the expenses of the more complex. The inequality can be remedied, and exact justice done, by adding to the final fee required of the applicant the cost of printing his specification and drawings. In that case the final fee might be reduced. I estimate that a final fee of $15 and the cost of printing and photolithographing would reimburse the government. But if models should not be required, and inventors relieved of that expense, as suggested elsewhere, probably fuller illustration by drawing would be required, and it would be safe and just to retain the full fee. Whatever surplus there might be could be expended most profitably for inventors and the public severally in the printing, heretofore suggested, of the old specifications.
DIGEST OF PATENTS
I renew a suggestion made by the Commissioner of Patents in 1873, relating to the publication of digests or abridgements of patent inventions as are published by the British Government.
These abridgements contain in classified form brief summaries of the inventions patented in Great Britain. Each volume contains some special class of inventions, arranged chronologically, and with subject matter indexes. Any one desiring to be fairly and accurately informed in relation to the patent granted in that country in all classes of inventions, may readily glean the information from the volume of abridgements, without which he would be compelled to search laboriously through the great mass of patents issued, now amounting to over 1,700 volumes.
The indexes are not full, but are sufficient to indicate the nature of the invention, and direct the inquirer to the volume and page where a full description and illustration may be found.
No such indexes have ever been made by this government. It has been attempted by private individuals in a few special classes. The completion of the whole work would require two or three years. It can be best done under the supervision of the Office, and in connection with the special Office work of examination. These indexes would enable one searching for special information to perform in a few moments the work of a day. They would effect a saving to the Office greater than their cost, and would find a ready sale at remunerative prices among manufacturers and inventors.
The need of them increases each year, with the increase in the number of patents, and if generally distributed they would serve more effectually than any other means to defeat those who, throughout the country, under worthless patents of narrow scope, impose upon the unwary and ill-advised. They might be distributed, in the same way as the Official Gazette, to public libraries in the Congressional districts, and would furnish an epitome of the entire record of the patents of the country, and ready information as to the state of the arts, accessible to all.
THE OFFICIAL GAZETTE
The publication of the Official Gazette, a weekly rescript of the transactions of the Patent Office, was begun in 1872, taking the place of the old Patent Office Reports since that date. Its institution was made necessary by the growing demands of the manufacturing interests of the country for current information as to the operations of the Office, and its growing popularity is a sufficient guarantee of the wisdom of the policy which dictated the change.
The matter it contains is of special importance to manufacturers and all others interested in patent matters. The minimum price per annum for the Gazette now fixed by law is $5, a rate limited to clubs, five or more in number; single subscribers are charged $6, and at these rates the circulation is considerable, and constantly increasing. But it is my opinion that the price fixed is too great to meet the popular demand, and that at a less price its circulation would be very largely increased. Under the law Members of Congress are permitted to name eight public libraries in their States to which the Official Gazette shall be sent, and I believe that number could be increased with very great benefit to the public service. The information contained in the Gazette is national in its character, and its wide dissemination is beneficial to the country and to the business of the Office.
The Commissioner has none of the ordinary means used by publishers for bringing the Gazette to the public notice, and in my judgment the circulation of it might be largely increased, and the receipts not diminished, if authority were given to offer the publication to newsdealers at a rate considerably less than the minimum price of $5 when a large number of copies are ordered.
LIBRARY
During the year there have been added to the library --
Vols.
Specifications of patents of various countries 101
Scientific works, bound periodicals, etc. 891
Duplicate English patents (unbound) 1,750
There were lost and destroyed by the fire 51
Books bound during the year 2,471
Total number of books in the library, not including
duplicate English patents 24,000
Issued to Examiners and readers in the library, about 20,000
Number of scientific and other periodicals taken 253
One of the most important accessions during the year was a duplicate set of the specifications and drawings of English patents from 1852 to 1876, number 66,000, making about 1,750 large volumes, which were furnished by the liberality of the British Government, together with an additional set of abridgements down to the year 1866.
A complete duplicate set of the indexes of English patents has also been added, which will allow copies to go to the Examiner's rooms, and greatly facilitate the work of completing digests for the various classes down to date.
Some years since, the work of making a complete name and subject matter index in English of all the French patents was begun, and only partially completed, owing to the want of clerical force in the library. This work has been continued, and now nearly complete, including over thirty thousand French patents, all that have been published to date. The Belgian patents are to be indexed in the same manner, and this work should be extended to the Italian, Austrian, Norwegian, German, and other patents, and supplements to the indexes made each year. There are many scientific publications, containing a large number of volumes, that need to be indexed to become readily accessible to Examiners and the public. The absolute necessity for this becomes evident from the fact that nearly one-half of all the works in the library are in foreign languages.
Another important work has been the preparation of a catalogue of the library. Heretofore there has been only an incomplete card catalogue, which was exceedingly cumbrous and almost useless to those most desirous of consulting the works in the library. During the year there has been compiled by the librarian a complete catalogue or alphabetical index, both of authors and subject matter, of all works in the library, making a royal octavo volume of over six hundred pages, the greater part of which is already printed. This is the first complete catalogue of the library ever published, and will add largely to the practical use of the library by simplifying the work of reference, for which this library was especially designed.
The importance of an extensive library in the work of this Office can scarcely be overestimated. By the provisions of the law, the Examiners are required to judge of the novelty of an invention before a patent issues, and, for the purpose of examination, need a library kept up to date. Those of the public interested in patents have the same need.
Of the arts and sciences, as represented by the 24,000 volumes now in the library, but very few departments are in any sense complete, while upon some subjects there are scarcely any works that can be consulted. There is an urgent need of an addition of at least ten thousand volumes to make the collection what it should be at the present time, for this class of information must be complete and come down to the latest date to be reliable and of value.
Scientific works are costly, and from the limited portion of the contingent fund allowed for the purpose it has not been possible to procure such works as were needed, and I would therefore renew the recommendation heretofore made, and would suggest that the sum of ten thousand dollars be specially appropriated out of the surplus receipts of Office fees, for the purchase of books for the library.
This bureau would not even then be placed on a par with some others in regard to its library. It is believed that a complete library, properly classified and catalogued, with subject-matter indexes of the more important works, would save thousands of dollars each year in the time required to make examinations; and the efforts made the past year toward this end are already bearing fruit, for the report of the librarian shows that the usefulness of the library has increased at least three-fold this year, even with the present imperfect facilities.
Arrangements are in progress for securing complete sets of the patents issued by all nations from the earliest date, and to increase the list of foreign exchanges with scientific, literary, and other societies. In this connection it is but proper to state that more room is greatly needed for the use of the library to properly carry on the work assigned to it. The increase of English and French patents has entirely filled the space allowed them, and provision must be made for the additions of the coming year. The entire duplicate set of English patents remains in boxes, owing to want of space in which to arrange them.
In order to make the library more efficient, according to the plans before indicated, the selection of the persons employed has been made with special reference to their linguistic and other requisite attainments, and at the present time there is no one in the library who is not familiar with one or more foreign languages.
TRADEMARKS AND LABELS
This important branch of Office work is steadily increasing. One thousand four hundred and sixteen trademarks and six hundred thirty two labels have been received for registration during the year. The receipts from this source for the past year have amounted to between thirty-eight and thirty nine thousand dollars, about eight thousand dollars more than the receipts of last year.
The work of examination of trademarks presented for registration, and the classification of the same, proceeds upon the same principle as examination and classification of applications for patents. The work has been divided into nearly eighty official classes, and the facsimiles arranged accordingly.
The importance of trademarks to the commercial world is becoming more and more appreciated in this country, and the remedies under recent laws enacted for their protection in the United States courts are being frequently enforced.
LACK OF ROOM
Recently, quite a large portion of the force engaged in tracing drawings and in making copies of the records have, by reason of the destruction of part of the building, necessarily been transferred to another building, greatly to the inconvenience of the Office. But this transfer has afforded no relief to the remaining portion of the force of this bureau. Halls and dark, ill-ventilated rooms continued to be occupied and crowded by the employees and by valuable public records. This evil has existed for years, and increases in extent with the accumulation of the records. The public business relating to the grant of patents suffers especially by lack of the room necessary to the examining corps for the arrangement of matter to be consulted in the examination of applications for patents.
APPOINTMENTS AND PROMOTIONS
Since 1869 appointments and promotions in the examining corps of this Office have, with some interruption, been made by competitive examination. These examinations were resumed in April of last year. For promotions, the candidates have been examined almost exclusively in matters relating directly to the business of the Office in their particularly line of duty, with a certain allowance in each case, determined before the examination for the general efficiency in such respects as could not be determined by the written examination.
Candidates for admission to the examining corps of the Patent Office have been examined for the lowest grade of the corps, and upon such mechanical subjects as come within the range of ordinary observation and attract the attention of persons having that natural interest in mechanism which accompanies an aptitude for such things. These examinations have also included some of the general principles of physics. The results of this system have been highly satisfactory. Men better fitted for the special work have been selected for appointment; the ablest, most diligent, and faithful men have been promoted; and, in addition to this, the effect, generally, upon the Office has been to stimulate industry, attention to business, and studious habits. These examinations have been conducted by gentlemen of higher grades in the Office, and without any expense to the government. As the examinations have been hitherto conducted at the department, an inconvenience has arisen to candidates from the necessity of their attendance at Washington for the purpose of an examination, which must result in many cases in disappointment. This might be remedied by holding an examination at stated periods in different parts of the country. I regard the system as of such importance in this Office as to justify some provision of law for conducting the examinations for the best interest of the government and the convenience of all concerned.
LOSSES BY THE RECENT FIRE
The fire of September 24th completely destroyed all of the building occupied by the Patent Office above the second or principal story in the north and west wings.
The part destroyed included one-half of the model rooms, containing 163 cases, mostly filled with patented models. Besides, there were several thousand models belonging to pending cases, some of which were allowed and awaiting payment of the final fee, and others rejected by the Examiners, but liable to be called up for further action within two years. In the roof space above the west hall were stored some 13,000 models of finally rejected cases, which had been put there for the want of other available space for them in the building.
A room in the roof, one hundred feet long, at the junction of the south and west wings, had been recently fitted up as a store room for photolithographic copies of drawings, which, when the fire broke out, were being moved from the ground floor in order that the room they occupied might be used for other purposes. The flames spread into this room, and a large number of these copies were destroyed by fire and water.
The roof over the east hall had to be cut into, and the space between it and the vaulted ceiling was deluged with water, which could only find its way out through the brick masonry into the room below. By these means a great number of valuable models, especially in the classes of sewing and textile machines, were materially damaged, the cases and all their contents were drenched with water, and the complicated mechanism of iron and steel coated with rust.
It was at first estimated that the models in the north and west halls were entirely lost. On a careful survey of the burned halls, after removal of the heavy roof irons and other material of the building, it was believed practicable to preserve and restore a considerable number of the models which at first had been thought totally destroyed. Many of them were entirely of metal, and heavy enough to resist any but furnace heat, and others, of which wooden parts were consumed, were apparently preserved in sufficiently good condition for ordinary office purposes. In clearing the space for the temporary roof, the dust and cinders were therefore carefully examined, and every scrap of a model, however valueless in appearance, was retained. Many considerations appeared to demand that, so far as possible, these models should be preserved. Apart from their intrinsic value as elaborate and costly productions of mechanic art, and as containing the actual history of the inventions, they were part of the record-evidence upon which large amounts of capital had been invested. Hence it seems that if any of those models could be preserved it would be inexcusable to permit them to be lost. It was estimated that not far from ten thousand of them could be preserved.
Congress having appropriated the sum of $45,000 to be expended for this purpose, I have begun the work, and am happy to report that, so far as I can judge from the indications up to date, much more can be accomplished than I before deemed possible.
The number of models I shall be able to restore will probably be greater than I estimated, and the expense per model less.
The models in the east hall, which were damaged by water, seemed to demand the first attention. The inventions they represented were of great value, their parts were intricate, often minute, and the inevitable injury to them from rust was scarcely less than a fire would have occasioned. I therefore, immediately on the partial restoration of order in the Office, took steps to arrest the damage to these models by having them taken apart, oiled, and freed from rust, and have, up to this time, kept constantly engaged in this work such force as the means at my disposal have from time to time permitted. This part of the work will be shortly completed, and probably 5,000 models of the most valuable description preserved in perfect order.
The damage to photolithographic copies was at first estimated at 40,000 sets of 150 sheets each, requiring for their reproduction about $60,000. After clearing away, however, the portion rendered absolutely worthless by fire and water, I caused a careful examination to be made of the remainder, and found that a large proportion of them, having been packed in solid masses, had substantially withstood the fire, and might be made available for use and sale by trimming the charred edges. The result has been that I am able to reduce my original estimate for restoring these copies one half, or approximately to $30,000.
Thirty patented drawings in the class of wood working were in the hands of copyists working in the model room, and were burned. This loss is particularly serious, as the models were also destroyed, and there is no means of replacing the drawings except from the original letters patent to which the copies were attached. This may, in time, be accomplished.
Eleven volumes of drawings of English patents were also destroyed. It gives me special pleasure to state that this loss being made known to the Commissioners of Patents at London, they at once directed duplicate copies of these drawings to be sent to this Office without charge.
Of minor losses to books, furniture, and fixtures, there were many, none of them of special significance in themselves, but in the aggregate amounting to thousands of dollars. The water thrown on the fire poured in torrents through the ceilings, flooding all the rooms on the main floor of the north hall, and it was only by the most active exertions of a large force, day and night, that it was kept from deluging the floor below. The same experience was repeated a few days afterwards by the occurrence of a severe rain-storm before the temporary roof was erected.
These successive disasters were necessarily discouraging, and, to a certain extent, demoralizing; but after each there was little delay in the restoration of order and resumption of work. The greatest embarrassment was occasioned by the want of room, so large a portion of the building being rendered unfit for use, and the General Land Office being compelled to trespass upon the already limited space being devoted to this bureau. But I am pleased to report that in the midst of these embarrassments and great apparent confusion, business proceeded almost as usual, and the weekly issues indicate no interruption. The records show only one day in which no patents were allowed, and that was shown to have occurred only because the clerk to whom allowed cases were sent, having been driven from his desk and room by the flood, had no place to receive them from the Examiners.
AMENDMENTS OF THE LAW
Prior to the fire, models of patented machines had been accumulating in the Office since 1836 -- for some years at a rate of from twelve to fifteen thousand per annum. Some of these occupy fully a cubic foot of space, though many are smaller. Though the number of rejected models had been greatly diminished by occasional distribution to scientific institutions, at the time of the fire there were about thirteen thousand (13,000) stored under the roof. Patented models had filled almost every available space in the fourth story of the building. They were useful to the public for the purpose of examination by persons desiring to be advised as to the novelty of inventions made by themselves or their clients. Duplicates were sometimes ordered to be used as evidence in court, and they were frequently referred to in applications for reissue. But it has become a serious question whether these advantages, added to the somewhat sentimental interest in the collection as a distinctly American display, were sufficient to justify the great cost on the part of inventors in furnishing these models, and on the part of the government in storing and exhibiting them. I am of the opinion that, under certain circumstances, it will be better to dispense with models in applications for patents. They form no part of the patent when issued. The law makes it essential to the validity of a patent that the specification and drawing thereof shall disclose fully the invention to those skilled in the art to which it pertains.
Examinations can be made without models, and, in my judgment, with greater certainty of fullness and accuracy from the drawings, since, without the model, the Examiner, relying wholly upon the drawings, would detect any imperfection. It will be necessary only that provision be made requiring models in cases where the capability of the machine to operate is called into question, or where the Examiner is in doubt as to the sufficiency of the drawing, or where models may be necessary for ready illustration on appeals, or in interference cases.
The omission of models will, as I have intimated, relieve the inventor of a large part of the expense attending applications for patents, and will tend, on the whole, to make the drawings and specifications attached to patents more full, clear, and explicit. The drawings in nearly all the patented cases having been reproduced, the preliminary and infringement examinations, hitherto made on the models, can now be made by means of copies of the drawings, of which I have already arranged one set to supply the place of the models destroyed. Now that the models which remain cover but half of the ground, it seems an opportune time to change the system, if such change is at all desirable.
In connection with this I also suggest that provision be made for the preservation of such models as shall be capable of operation, and be deemed valuable for the purpose of illustrating practical working machines, used anywhere in the country, and for the reception and custody of specimens of manufacture and working models of such operating machinery as manufacturers or inventors may desire to place on exhibition. A collection thus made up of working models, confined to inventions actually in use, would be of value as illustrating the state of the arts throughout the country, and would be unencumbered by the great mass of useless material accumulated under the old model system. It would require much less space for many years than that occupied by the models recently destroyed.
Much of the complain against the patent system of this country has arisen out of the reissue of old patents with expanded claims. Under the law, and in conformity with the decisions of the courts, as understood by the Office, it has been the practice hitherto to allow the introduction, upon reissue, of matter shown in the model, but not contained in the drawing or specification of the original patent. As the model constitutes no part of the patent, is not referred to therein, and not brought to the notice of the public, the reissue of a patent based upon matter contained in the model alone may well operate as a surprise to the public. It gives opportunity for fraud, because it is impossible to keep the models in such strict and faithful custody as not to afford sometimes an occasion for changing a model, either by adding or taking away some part to materially change the invention, very substantial difference being sometimes made by a very slight change. I recommend, therefore, a modification of the law restricting the applicant for reissue to matters contained in the specification and drawing, without any reference to the model.
In this connection I refer, also, to another provision in the present law, contained in the latter part of section 4916 Revised Statutes, which has been understood by this Office to provide for the amendment of certain classes of cases upon reissue by the introduction of new matter on proof outside the Office record. Such proof can only be furnished by voluntary affidavits. Although the repeal of this provision might, in some cases, work hardship, the opportunity for fraud is so great, and the temptation so strong, that it seems wiser and for the public interest that the section should be modified in this request.
There is another class of cases, not infrequent, in which honest mistakes occur, which may be corrected without injury to the public, but for the correction of which no provision now exists. I refer to cases where parties, through ignorance of the law, have taken out patents as joint inventors, when one or more of the parties had, in fact, only the interest of an assignee. The law authorizing reissues does not touch these cases, and it has been held by the Department that the correction cannot be made as a clerical error. It is necessary only to authorize the Commissioner to receive such patents, with proper affidavits of the parties interested, and to make the correction and a proper certificate thereof.
It is perhaps unavoidable, even under our system, which provides for an examination as to patentability, that patents of little or no value, and for unimportant improvements, should be very frequently granted. Many of these patents are used more to retard the progress of the arts than to advance them, and in such ways as to tend rather to bring the patent system into disrepute. For illustration, patents are often granted for inventions more or less crude, for machines capable of operation mechanically, but not capable of profitable operation, and not valuable commercially, or for processes which, for like reason, fail to become of practical value. These patents sometimes lie dormant until, in the progress of the arts and the efforts of more practically successful or ingenious inventors, the goal is ultimately reached, and inventions are perfected and made practically useful, in which, however, are embodied the germs found in some of these old patents.
One of the greatest hardships, and the source of much complaint, has been the reissue of such old patents with claims covering machines subsequently invented and practically the first to operate successfully. To such an extent has this been carried, that when a man had made a really valuable invention, it was necessary for him to examine the records of the Office, and ascertain what old patents could be found which might be reissued to cover his invention; and it has been a matter of prudence to secure such patents before investing in the manufacture of an invention liable to be dominated in that way.
Further than this, there are patents granted for improvements more or less trivial, differing in comparatively small particulars from machines or articles preceding them. It is difficult to prevent the issue of such patents, partly by reason of the urgency of the applicant, very largely by reason of the persistency and effort of attorneys whose fees in many cases are made to depend upon their success in obtaining the patent, and partly because it is very difficult for the Office to undertake to determine the practical value of an improvement. That which seems but a trivial change may amount in practice to a very important and valuable improvement. Since the grant of such patents cannot always be avoided, the question arises whether their duration may not be abridged, and for this purpose some process of natural selection be applied to the patents issued by the government. It has, therefore, been thought desirable to require, at certain periods in the life-time of a patent, the payment of fees as a necessary condition to the continuation of the life of the patent. Such a provision would, in my judgment, tend to remove useless and frivolous patents, without imposing any serious burden upon those that prove meritorious.
For the convenience of the Office and the public, I suggest an amendment to section 4885 Revised Statutes. The existing law requires the payment of the final fee within six months after notice of allowance of the application. The conduct of business in the office requires that the issue of patents for each week should be closed upon a certain day. If the final fee is paid, as is often the case, upon the last day of the six months, it is impossible to give the patent the date of the preceding issue, that having been closed and the papers all sent to the printer. As of the day of closing the issue necessarily precedes by two or three days the date given to the weekly issue of patents, which is the day of signing those patents, the only practicable day of issue in such cases does not come within the six months prescribed by law, and the office is compelled to resort to the fiction of sending a new circular, with a new date of allowance. Further, the patent is dated and begins its term of seventeen years on the day on which it is signed, and the Commissioner is compelled, under the present arrangement, to sign these patents in blank, and afterwards print the specification and drawing, make up the patent, and affix the seal thereto, which, for the whole issue, requires about two weeks after the date of the patent. It seems desirable to have the law so changed in relation to the payment of the fees that the papers can be prepared and ready for delivery on the day when the term of the patent begins.
The last clause of section 4887 Revised Statutes requires that every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent. I know of no good reason for this restriction, either in the case of alien or citizen inventors. For citizens of this country, it simply amounts to a restriction upon the right which they would otherwise have to take out patents for their inventions in foreign countries. It is often desirable to take out a foreign patent first. The prior issue of the American patent requires extraordinary diligence on the part of the inventor (often unable at once to bear the expense of taking out foreign patents) in order to prevent unscrupulous parties from taking the invention abroad and patenting it (as they may without making the oath of invention,) or to prevent the introduction into foreign countries of the publication of the invention, which in some cases would bar the issue of the foreign patent. In order to prevent the enjoyment by a foreign inventor of the patent granted him abroad during any considerable part of the life-time thereof, and the subsequent taking out of the patent for the same invention in this country, it might be provided that the application should be made in this country within two years of less time after the date of the foreign patent.
I would also suggest that section 4897 Revised Statutes be amended in order to put applications forfeited for non-payment of the final fee upon the same basis as applications abandoned by reason of failure to act thereon within two years after action by the Office. As the law now stands, a discrimination is made against cases passed for issue, for matter decided to be patentable, which is not made against applications not so decided upon, but in the same manner neglected by the parties thereto.
I suggest that the law relating to declaration of interference in the Patent Office (section 4904 Revised Statutes) be amended so as to provide that after the final decision in the Office between parties to an interference, the application of the successful party shall not be put in interference with any application filed after the closing date of the testimony taken on behalf of the successful party, and permitting only an interference to subsequent parties with the patent of the party prevailing in the first interference. It sometimes happens that a party, defeated in the first interference, comes into the Office, before the patent can issue to his opponent, with a new application signed and sworn to by some third party and assigned to himself. Such circumstances give rise to a very strong suspicion that the second interference is substantially a prolongation of the first.
In the second interference, the subsequent party has the advantage of knowledge of his opponent's case; and it is asserted in some of these cases, with probability of truth, that the proceeding is simply for the purpose of delaying a patent, while the parties defeated in the interference are enjoying the fruits of the invention.
The Office is in receipt of considerable revenue from the sale of copies. The customary price charged for manuscript copies is ten cents per hundred words; for printed copies of specifications, twenty-five cents per single copy, and ten cents each for twenty or more. For certified manuscript copies the price is the same as for uncertified; but for certified printed copies the prince is the same as for manuscript copies. The latter price is exorbitant; and the price for printed copies is greater by far than the cost of printing; but when only a few are ordered the price charged does not exceed the actual cost, taking into consideration the attendance necessary for the prompt delivery of such copies. Cases arise in which parties desire complete sets of classes, including several hundreds or several thousands of copies, and in such cases the price is excessive. I recommend that section 493 Revised Statutes be amended, in order that it may be more equitable in these respects.
Specific amendments to the law have already been suggested in accordance with these recommendations, which are embodied in a bill now before the Senate Committee on Patents.
In addition to the matters already suggested and embodied in the bill, there is another which has received considerable thought from those interested in patents, and to which I desire to call attention. Under the present organization of the Office there are twenty-two Principal Examiners issuing patents. Practically, there is no review of applications which have received their favorable action. These Examiners are frequently changing, and are not always in harmony as to their views of the law or their understanding of what is patentable thereunder. From their adverse decisions appeal may be taken to the Board of Examiners-in-Chief. This board, having authority to reverse the Examiner's action, practically determines more than the Commissioner the general policy of the Office in the issue of patents. If they are inclined to issue patents for unimportant matters, they overrule the Examiners, and their decisions directly and as precedents govern the corps.
The board, which consists of three members, is also, from causes which affect the Office generally, subject to change. Since its establishment in 1861 there have been fifteen members. Under such conditions it must appear inevitable that there could not have been uniformity or the constant exercise of the wisest discretion in the granting of patents. The whole tendency has been toward an excessive issue of patents, and there is need of constant supervision.
The official sanction and certificate of novelty often gives a patent value in the eyes of the applicant without much regard to what he is actually entitled to claim, and a very large number of cases are urged before the Office by attorneys whose fees depend upon the grant of the patent.
Under the present organization of the Office there is no hope of greater uniformity and no possibility of more careful supervision. It was proposed some years ago to accomplish this by grouping the classes, so as to place the granting of patents in fewer hands; but the scheme was never put into practice. It is impossible for the Commissioner to supervise personally one in a hundred of the patents issued. His duties are too diverse and numerous, and should rather be abridged. In fact, the business has outgrown the organization. Since the reorganization, in 1836, when the offices of Commissioner and Examiner were created, the number of Examiners has increased from one to eighty-eight, the total number of employees from seven to above four hundred, and the number of applications from about six hundred fifty to above twenty thousand per annum. In 1837 the cash receipts were twenty-nine thousand two hundred and eighty-nine dollars and eight cents, and in 1876 they were seven hundred and fifty-seven thousand nine hundred and eighty-seven dollars and sixty-five cents. With this increase the business has naturally and inevitably become more complicated. This increase has added immensely to the executive duties of the Commissioner, and rendered them such as to need all his time and care. But in addition to these duties he has those of the appellate tribunal next above the Examiners-in-Chief; and although very few ex parte cases reach him, there are many appeals in interference cases, which often require the examination of a large amount of testimony, and the decision of essentially the same questions as those which arise in infringement suits in the United States Courts. The duties of the Commissioner are not only too many, but they are incompatible. The watchfulness, care, and constant supervision required of the executive officer are inconsistent with the exercise of the judicial qualities necessary for the consideration of questions brought up by appeal. I believe that the Commissioner should be relieved of these judicial duties, and that they, as well as those which now devolve on the board, should be confided to a more permanent tribunal than either the board of Commissioner.
Such a tribunal has been suggested, of the nature of a patent court, to be established in connection with the Office, and to be composed of three members, appointed as other judges of the United States courts are appointed. To such a court all appeals from the adverse decisions of the Examiners might be directly taken. This would save one appeal, would relieve the Commissioner of all judicial duties, and would bring into direct connection with the Office a permanent judicial head. The Commissioner might then, with the other assistance already provided by law, inspect the patents which he signs, and refers to the court for revision such as might seem to him improper to issue.
I know of no plan which promises better than this to correct the evils arising out of granting patents for things which ought not to be patented. The law of 1836 provided for an examination as to novelty in order to guard against "the granting of patents for everything indiscriminately." The amendments now proposed are in the same direction, and contemplate more careful and uniform examination and complete supervision in allowing patents.
The evils complained of under the present system are not occasioned by patents granted to true and worthy inventors, but by worthless patents. They are not essential to the system, but incidental to its rapid growth, and trifling in comparison with the benefits bestowed.
These benefits have outrun the anticipations of the foundations of the law, and, indeed, cannot be measured. In his report accompanying the bill which became the law of 1836, the chairman of the Senate Committee on Patents then said: "Important and interesting as the Patent Office is now considered, it is believed that, under such new organization as is contemplated by the bill presented herewith, it will contribute largely to the great interests of the country and bear no small part in elevating our national character. American ingenuity has obtained much consideration on the other side of the Atlantic. Even the manufacturers of England are not a little indebted to it for some of their most valuable improvements." This was before the invention of the reaper, before the sewing-machine, the telegraph, the various improvements in firearms, and numbers of other American inventions which have been carried into Europe and over so large a part of the civilized world. The mind cannot grasp, no data can be collected to state, the vast results of American invention since 1836. Of the agricultural implements alone the single class of harvesters represents the working force of an immense army. Without these the grain fields of the West could not be reaped. Indeed, in every art inventors have spurred manufacturers to the adoption of improvements which have made almost every useful thing in civilized life cheaper or better, and which have enabled us to enter into successful competition with older manufacturing countries in the markets of the world. The list of our exported manufactures is already long and is yearly increasing.
It cannot be doubted, I think, that this marvelous growth and excellence in inventions are due to the stimulus given by the protection afforded by the law. There are few valuable inventions which have not been the result of long study, and which have not required the expenditure of time and capital to perfect and bring into use -- expenditures not to be expected unless there be held out the hope of reward.
The records of this Office, as well as the history of our manufactures, show the immense labors and achievements of inventors during the last half century. But the end in no department is yet reached. The fields of invention are exhaustless, and under protection wisely given the failure will be richer in inventions than the past.
Respectfully submitted.
Ellis Spear, Commissioner
Washington, D.C. January 29, 1878