Journal of the Franklin Institute, Nov 1837, pages 326-328
THE PATENT OFFICE
The notices of Patents, granted by the United States, have been omitted since the destruction of the Patent Office, with all its Records and Models, on the 15th of December last; these notices we now resume, and on doing this, the Editor offers the following remarks and explanations, upon certain points, which appear to him to be of interest to those in any way concerned in patents for useful inventions.
It has long been the practice of the Editor, to delay a particular notice of patented inventions, for several months after the time of their being granted: a course necessary from various considerations, but more particularly for the two following: First, Patents are not granted in foreign countries for inventions, descriptions of which have been previously published; the arrival of this Journal in England, or in France, one day before the sealing of a patent, would destroy the grant, and cause the loss of the large amount of fees paid into the offices. In applying for such patents, there is usually much delay from the want of proper information; and a considerable length of time must necessarily elapse, in the foreign offices, between the times of application for, and that of the sealing a patent. This alone, would be a sufficient reason for the delay; but there is a second of some personal importance, to the Editor himself, as well as to patentees. It is the practice of the Editor, to give his own opinions, freely and fully, respecting the value of inventions, and it is his wish, not to interfere with the interests of the inventor, by forestalling public opinion, before he shall have had time to test the value of his supposed improvements, by a practical test.
Under the operation of the acts of July 4th, 1836, and of the 3rd of March, 1837, by which all former laws relating to patents, were repealed, all applications for patents are subjected to a critical examination in the Patent Office, and if the things claimed, are known to be old, or if that which is proposed to be done, contravenes the established laws of Mechanical and Chemical Philosophy, the patent is refused; subject, however, to an appeal from the decision of the office. Under this law, there are two examiners appointed, of whom the Editor is one, and it will, therefore, be manifest that the tone of his animadversions, must be modified by the existence of these circumstances. Under the official examination, a large class of applications, will be rejected, and never, therefore, meet the public eye; this will be a source of sufficient mortification to those who have dreamed of reaping a golden harvest, without the lash of criticism. It must not be inferred from these remarks, that our list of patents will become a mere detail of approved inventions; the fact will be far otherwise; for although the office is now possessed of judicial power to a certain extent, and can arrest what is old, what is contrary to the laws of nature, and what is deemed altogether trifling, it would be stepping out of the line of its duty, and transcending its legitimate powers, to refuse a patent for an alleged improvement or invention, because the Examiners, or the Commissioner, may believe the thing worthless. They are not to act under the guidance of mere opinion, but must, and ought to, give the sanction of the office in all cases where there is apparent novelty. The utility is a question to be subsequently settled between inventors and the public. Nor is the absolute amount of novelty, a question for this office, as a very large amount of utility, not unfrequently results from a trifling change in the construction of a machine; the duty of the office in this case, is to see that the claim does not embrace more than the invention of the applicant; and, wherever there is a doubt respecting the propriety of rejection, the decision of the office will always will be given in favor of the claimant, who, in such case, has an undoubted right to a final determination of his interests, by a Court and Jury.
The number of patents hereafter issued for quack medicines, will, under the operation of the existing law, be much diminished, and, perhaps, it would be for the public benefit, could they be entirely cut off from the sanction of an exclusive right; but this cannot be done in all cases. Where compounds substantially the same with those known to the practicing Physician are attempted to be patented, they will, of course, be excluded, but they must be granted when the compound appears to possess novelty, and is not manifestly of such a nature as to produce public injury; the Journal, however, will fully make known every recipe for a patent medicine, accompanied by such remarks as appear just and proper.
The enquiry is frequently made, what proportion of the applications, under the present law, are successful? Without taking the trouble to estimate the precise number, it may be stated, that not one third pass as originally presented, a large number being returned for amendment, and modification of the claim; probably about one half of those applied for, are eventually granted. P>The next number of the Journal will contain some information respecting the restoration of the records, and models of the office, as it appears that the circular issued upon this subject, has not, generally, been clearly understood.
Journal of the Franklin Institute, Jan 1833, pages 1-5
Abstract of the several acts passed at the last session of Congress relative to Patents for useful Inventions, with remarks thereon. By the Editor.
The following resolution was passed by both houses, and approved by the President, March 7, 1832.
"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled. That the Secretary of State,out of the proceeds arising from the fees on patents for useful inventions, discoveries, and improvements, procure the necessary books, stationary, and other accommodations for recording the patents issued, and unrecorded, as well as those hereafter to be issued, and that he employ, and pay at a rate not exceeding twelve and a half cents for every hundred words, so many clerks as may be requisite, with convenient despatch, to record the same." And in a general appropriation bill, approved May 5th, fourteen thousand six hundred and twelve dollars were appropriated to defray the necessary expenses. In compliance with this resolution, a considerable number of extra clerks was appointed, and the specifications, amounting to about five thousand which had never been recorded, are all now on record, in proper books.
The universal impression appears to have been, that the patent law actually required that the specification should, in every case, be copied, and attached to the patent, and that it should also be placed on record in the department of state; under the influence of the practice of the office, and of this general impression, we had repeatedly read the first section of the act of 21st February, 1793, without perceiving, as we think we now do, that such is not the fact. This section provides that after the proper petition has been presented to the Secretary of State. "It shall and may be lawful for the said Secretary to cause letters patent to be made out in the name of the United States, bearing test by the President of the United States, reciting the allegations and suggestions of the said petition, and giving a short description of the said invention or discovery, and thereupon granting," etc. "The same shall be good and available to the grantee, or grantees, by force of this act, and shall be recorded in a book, to be kept for the purpose, in the office of the Secretary of State, and delivered to the patentee, or his order." The third section provides that the person soliciting a patent "shall deliver a written description of his invention," "which description, filed by himself, and attested by two witnesses, shall be filed in the office of the Secretary of State, and certified copies thereof shall be competent evidence in all courts where any matter or thing, touching such rights shall come in question."
It is evident that what the law contemplated, was the inserting in the body of the patent a short description of the invention, and that the patent containing this description should be recorded; the practice, however, is merely to insert in the patent the title of the specification, without any description of the thing patented; and to record the description, but not the patent. We certainly think the practice better than the law, and that the latter ought to be made to conform to the former. This practice probably arose, in the first instance, from the difficulty, and often, in fact, the impossibility, of giving a short description of the thing invented; as the patentee very frequently neglects, or is not able, to give anything of the kind, it is not possible for the office to supply this deficiency, in a specification; it has therefore in all cases been appended to the patent.
By an act of the 19th of May, the patent granted to Jethro Wood, of the state of New York, for improvements in the construction of the plough, dated September 1st, 1819, was extended for the additional term of fourteen years from its expiration in 1833.
The following is "An Act for the relief of Horatio Gates Spafford." "Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That in issuing letters patent in the usual form to Horatio Gates Spafford, a citizen of the United States, for his alleged discoveries in mechanical philosophy, carried into practical operations by appropriate machinery, it shall be the duty of the Secretary of State, upon application to him, within one year after the passage of this act, to file in the confidential archives of his department, and there preserve in secret, for one year, the descriptions, specifications, and drawings, illustrating the discoveries and inventions aforesaid: and the patent which shall be thus issued, shall have the same force and effect as if conformable in all respects to the provisions of the 'act to promote the progress of the useful arts, and to repeal the act heretofore made for that purpose.'" Approved July 3, 1832.
Since the passing of this act, the individual in whose favour it was enacted, has fallen a victim to the spasmodic cholera; but for this circumstance we should have animadverted very freely upon his pretensions and claims; being in possession of the information which would have enabled us so to do, without violating any confidence, either real or implied, reposed in us. As the matter stands, our remarks on the subject will be brief, but at the same time, believing that it is intended, on the part of his executors, to take advantage of the act for the benefit of the heirs of the patentee, our duty to the public forbids our passing it over unnoticed; as, however, the Congress of the United States has, by the foregoing act, provided for the sealing of the specification for one year, we do not think it proper to describe the mode in which the patentee pretended to have accomplished his object.
The thing proposed to be done is one which has been very frequently attempted, but which has always failed; the following is an outline of it -- the descent, to a certain distance, of a given weight, is to raise a greater weight, say twenty per cent more, to the same height, in the same time; (water being the agent in the present case.) This is a somewhat startling proposition, and to the few who are well grounded in the principles of mechanics, will do something more than throw doubt upon the whole scheme. The great mass, who are easily deceived by the exhibition of pretended perpetual motions, or who, at least, believe that such a thing may be eventually discovered, would venture their money, in the present instance, with as great a probability of success, as upon any plan likely to be devised for the same purpose; for ourselves, we should be most unwilling to buy a ticket in a lottery, where we believed that all must draw blanks.
The sealing of patents either for a part or for the whole of their term, appears to be, in some cases, very desirable; still there are objections to it which cannot be easily obviated. What one man has invented or discovered, another may likewise invent or discover; and how is an applicant to know that he is not interfering with rights vested in another having a sealed patent? One of the most desirable features in the patent law is an effective caveat, which should allow time for the completion of an invention, and defend the inventor from those prowling, epicurean cannibals who are seeking to live upon the brains of their fellow men. The English have a caveat, but it is worthless; we have none, nor do we believe that there is any where an existing model by which to frame one; The object, however, we consider as of easy attainment.
In the case before us, we can perceive but one motive on the part of the applicant for wishing a sealed patent, as it was not pretended that the time asked for was for the purpose of completing the invention. This is manifest from the provision of the act, that "the descriptions, specifications, and drawings, illustrating the discoveries and inventions," shall be placed on file, at the time when the patent is issued. The motive is indeed set forth in the memorial of the applicant, in which he states that the passing of the act in his favour, would enable him to raise "money power;" or, in other words, would have the effect of inspiring that confidence in the validity of the invention as should induce persons to encourage the thing by investments of money; and such is the necessary effect of the passing of such a law, the public not recollecting, or not being aware, that those who passed the law knew no more than themselves respecting the merits of the proposed invention.
An act, bearing the same date with that last noticed, was passed, directing the issuing of three patents to three foreigners: one to Thomas Knowles, of Manchester, England, for an improvement in cotton spinning; one to James Long, of Greenock, Scotland, for spinning rope yarn and duck twines; and one to William Steel, of Liverpool, England, for an atmospheric reacting steam-engine. The proper models and specifications for obtaining these patents are to be deposited in the patent office within six months from the time of passing the act; and the rights are to cease and determine if the inventions are not introduced into public use within two years, or upon their being discontinued, at any time for the space of six months.
Whilst it is very desirable that special legislation should be avoided as far as consists with justice, and congress have actually, on this principle, rejected many propositions, but these acts leave the door wide open for applications on the part of foreign non-resident inventors, and we shall find that numbers will, in consequence, seek an entrance. Comity, we think, requires that whilst Americans can obtain exclusive rights in foreign countries, foreigners, under proper regulations, should be enabled to obtain patents here; but this, if proper to be done, should be done by a general law, which should place all upon an equal footing. Among other considerations, it seems scarcely fair that whilst an American must pay fifteen hundred dollars for a patent extending over the British empire, and Englishman should obtain the same right in the United States for thirty dollars. Ought not the principles of countervailing duties to govern in this as in some other cases?
Another act, dated the same as the foregoing, entitled "an act concerning patents for useful inventions," provides in the first section for the publication, annually, in two of the newspapers printed in the city of Washington, of a list of all the patents which have expired during the preceding year, with the names of the patentees, alphabetically arranged.
The second section provides that where a patentee intends to apply to congress to prolong, or renew, the term of a patent, he shall give notice of this intention, at least once a month for three months, in two newspapers published in Washington, and in one authorized to publish the laws of the state, or territory, in which the patentee resides. The petitioner is to set forth the grounds of his application, with the evidence thereof, verified upon oath before a judge or justice of the peace; and this is to be accompanied by a statement of the ascertained value of the thing patented, and the amounts of receipts and expenditures which have accrued therefrom.
The third section authorizes the Secretary of State to receive the surrender of a patent, and to grant a new patent upon an amended specification, where, from inadvertence, accident, or mistake, the original specification had been defective.
This provision is in perfect accordance with the decision in the Supreme Court, in the case of E. and H. Raymond versus Grant and Townsend, made previously to the passing of this act, and published in the last volume of this journal, p. 508. It is provided also that the new patent shall be liable to the same objections and defences with the original. And that "no public use or privilege of the invention so patented, derived from or after the grant of the original patent, either under any special licence of the inventor, or without the consent of the patentee, that there shall be a free public use thereof, shall in any manner prejudice his right of recovery, for any use or violation of his invention, after the grant of such new patent as aforesaid."
The last act passed in the session, and dated July 13th, is entitled "an act concerning the issuing of patents to aliens for useful discoveries and inventions." By the act of 1800, aliens who have resided for two years in the United States were allowed to obtain patents: in every session, however, special acts have been passed, enabling such as had resided here for a less period of time, to do the same thing. The present act is intended to embrace such cases, and provides that aliens who have made a legal declaration of their intention to become citizens of the United States, may also obtain patents for their inventions. Should the patentee neglect to introduce the thing patented into public use, for the space of one year after the patent has issued, or should its public use be discontinued for the space of six months, or should the patentee not become a citizen at the earliest period when he is entitled to do so, the patent is to determine, and become void, without the necessity of any legal process to annul, or cancel it.
The foregoing does not repeal the provisions of the act of 1800; those aliens, therefore, who have resided for two years within the United States, stand upon a much better footing than those in whose favour the present act was passed, the special provisos of this act not affecting the former.
There appears to be some incongruity in allowing to the non- resident foreigners, Knowles and others, two years for the introduction of their inventions, whilst those who are residents, and have declared their intention to become citizens of the United States, are restricted to one year; perhaps, however, as the former must act through agents, and reside themselves at a distance, it was thought that more time ought to be allowed to them than to residents.
We hope, at no very distant day, to see the several laws upon this subject combined in one harmonious whole, in which the rights of individual, and those of the public, will be better defined and secured than they now are. The patent laws both of England and France, are under revision; the present advanced state of the arts, the experience which has been obtained respecting the operation of the existing laws, and the opinions and decisions of the courts, may certainly serve as guides in the attempt, and produce better results than could have been obtained under the circumstances which existed when the laws were originally enacted.
Journal of the Franklin Institute, January 1837, pages 22-30
THE PATENT OFFICE
Our readers need not be informed of the great national loss consequent upon the burning of the Patent Office, a circumstance which will materially influence, for a time at least, the contents of this Journal. The editor resides in the vicinity of that office, and his danger from the fire was imminent; but his dwelling, with his books and papers, were preserved, although with some disarrangement of the latter; his papers and notes relating to patents were, however, in a desk in the Patent Office, and of course, shared the general fate of its contents. On the first moment of alarm all access to that office was rendered impracticable from the dense smoke with which its stair case and passages were filled, even before the fire was visible. The monthly list of Patents, with the Editor's remarks, must, at present, be discontinued, but they will be resumed in due season, after the necessary progress has been made in the business of the office. In the meantime a series of specifications of recent Patents, of which the Editor has copies, will, in part, supply the place, and to these will be added a number of English Patents, the publication of which has been deemed of much importance, but has been postponed from want of sufficient room.
The letters of enquiry which the editor has received since the fire, have been numerous, and replies to them have absorbed a large part of his time, profitably, he hopes, to others, although, so far as money is concerned, but little so to himself. But for this, his pen would have been devoted to a notice of some two or three books on hand, and to other matters which he wishes to spread out upon his pages.
The great question now is, what can be done for the restoration of the Patent Office? To this question the best reply that can be offered at the present moment, is contained in the subjoined Report, and Bill; the latter of which will undoubtedly be enacted into a law, with such modification in its provisions as may appear proper upon a due consideration thereof by the National Legislature; and we have but little doubt that in the next number of this journal, we shall be able to present it in the form of a law, as the subject is one which requires, and will command, early attention.
Mr. Ruggles' Report to the Senate, with a Bill
The special committee appointed to examine and report the extent of the loss sustained by the burning of the Patent Office, and to consider whether any or what measures ought to be adopted to repair the loss, and to establish such evidences of property in patented inventions as the destruction of the records and drawings may have rendered necessary for its security, submit the following report:
In examining the subject referred to them, the committee has been deeply impressed with the loss the country has sustained in the destruction, by the fire of the 15th December, of the records, originals, drawings, models, etc. belonging to the Patent Office. They not only embraced the whole history of American invention for nearly half a century, but were the muniments of property of vast amount, secured by law to a great number of individuals both citizens and foreigners, the protection and security of which must now become seriously difficult and precarious.
Everything belonging to the office was destroyed -- nothing was saved. There were one hundred and sixty-eight large folio volumes of records, and twenty-six large portfolios, containing nine thousand drawings, many of which were beautifully executed and very valuable; there were also all the original descriptions and specifications of inventions, in all about ten thousand, besides caveats and many other documents and papers.
There were also two hundred and thirty volumes of books belonging to the Patent Office library, the cost of which was $1,000. Some of these were procured prior to the passage of the act of July 4, 1836, making an appropriation of $1,500 for procuring a library of scientific works. Others were procured subsequently, for which $320 of that appropriation was expended.
The model cases, press and seals, desks, book cases, and other furniture and effects belonging to the office were estimated at $6,600.
The Patent Office contained also the largest and most interesting collection of models in the world. It was an object of just pride to every American able to appreciate its value as an item in the estimate of national character, or the advantages and benefits derivable from high improvements in the useful arts -- a pride which must now stand rebuked by the improvidence which exposed so many memorials and evidences of the superiority of American genius to the destruction which has overtaken them.
The number of models was about seven thousand. Many of them displayed great talent, ingenuity, and mechanical science. The American inventions pertaining to the spinning of cotton and wool and the manufacture of fabrics, in many respects exceed those of any other nation, and reduced so much the expense of manufacture, that the British manufacturers were reluctantly obliged, at the expense of a little national pride, to lay aside their own machinery and adopt our improvements, to prevent our underselling them even in their home market. In this department were the inventions of Browne, Thorpe, Danforth, Couilliard, Calvert, and some others. The beautiful operative model of Wilkinson's machine for manufacturing weavers' reeds by one operation, was considered one of the most ingenious mechanical combinations ever invented. Of this character was Whittemore's celebrated machine for making wool cards. There were several models of valuable improvements in shearing and napping cloth, patented to Swift, Stowell, Dewey, Parsons, Daniels, and others.
In another department were several models of machines for manufacturing cut and wrought nails. The machinery for this purpose, which has reduced so much the price of that important article, was of purely American origin, and was invented by Briggs, Perkins, Reed, Odiorne, and several others.
The models of improvements in grist mills, saw mills, water wheels, etc. were numerous.
The application of steam power to the driving of all kinds of machinery for propelling boats, locomotives, mills, and factories, has brought out a great number of American inventions and improvements, displaying a degree of talent, ingenuity, and science highly creditable to our country. Some of the models in this department very valuable. America claims the honor (contested, indeed, by England) of the first successful attempt to apply the power of steam to the propelling of vessels. The name of Fulton is associated with one of the noblest efforts of genius and science. It has often been regretted that no model was preserved of his steamboat, which was the first to demonstrate the practicability of making steam subservient to the purpose of useful navigation. There was, however, deposited in the Patent Office a volume of drawings elegantly executed by his own hand, delineating the various parts of the machinery he employed, and embracing three beautiful representations of his steamer making its first triumphant struggle against the opposing current of the Hudson. The steamer was represented passing through the Highlands, and at two or three other interesting points on the river, with a beautiful sketching of the surrounding scenery smiling as if it were at the victory which science and art had at last achieved over the power of the winds and the waters, and at the opening era of steam navigation, the benefits of which have since been so widely diffused. It contained also an account of his experiments on the resistance of fluids, and various estimates of the power required to propel vessels of various tonnage and form through the water at greater or less speed. This volume, which should have been preserved among our choicest archives, shared the fate of every thing else in the office. What sum would be too great to be expended in replacing it!
The department of agriculture contained a great number of models of highly useful improvements in the implements of husbandry. The number of inventions which had for their object the advancement of the agricultural interests, was about fifteen hundred; those which pertained to navigation were a little short of a thousand. The inventions and improvements in factory machinery, and in the various manufactures, where upwards of two thousand. In the common mechanical trades, there were as many more. It were vain to attempt to enumerate or classify them within the reasonable space of a report of committee. There was no art or pursuit to which ingenuity and invention had not lent their aid.
That this great national repository should have received so little consideration heretofore as to be left so long exposed to conflagration, which has at last swept every vestige of it from existence, cannot be too deeply deplored. But the reproach does not rest at the door of the present Congress. The act passed at the first session, reorganizing the office, containing many important provisions for its management, and the appropriation for erecting a fireproof building, for the accommodation and preservation of the records, models, etc., which is now under construction, attest the interest inspired and the attention devoted to it, though, unfortunately, too late to rescue it from destruction.
That the benefit of such an institution is limited to the mechanic arts and manufactures, or that it is confined to any particular section of the Union, is an erroneous idea. Its influence is felt in every branch of national industry, and no one section of the country can justly be said to derive less advantage from it than another. The idea is equally erroneous that such institutions are established for the benefit of patentees only. The advancement of great national interests is the first object of the patent laws in all nations where they exist. The specifications, models, and drawings, are required that, after the patent term shall have expired, the public may have the benefit of a disclosure of the invention, so full and intelligible that any one can apply its principles to practical use, or make them the foundation of further improvements.
It is a still more erroneous idea that no drawings or models of new inventions are of use to the public, unless the machinery they represent is susceptible to a practical application of the use designed. Mechanical science, like all others, is matured and perfected by degrees, and by calling to its aid the investigations and ingenuity of various minds. Most inventions are but the foundation of progressive improvements. It is necessary to know what has been done, in order to know what remains to be accomplished. Every age avails itself of the experience and discoveries of that which has preceded it: were it otherwise, knowledge would be stationary, and every generation, instead of being wiser than others gone by, would be employed in learning over again what had been acquired before. The drawings and models of even those inventions which are imperfect or incapable of producing the desired effect, serve to show how far others have progressed, and either furnish hints for the full accomplishments of the design, or as beacons to enable others to avoid fruitless labor and expense. Whoever would attempt to improve the arts, must begin where others have left off: hence, the model rooms of the Patent Office were constantly visited by men of genius and science from all sections of the country, and from Europe, where they were able at once to discover how far American invention had gone, and where they frequently derived important hints from inventions and contrivances of apparently but little value.
They would seem also, to be almost indispensable, in deciding upon new applications for patents, to enable the proper officers to judge of the originality of the invention, and to prevent the issuing of interfering patents. It often requires a very close examination of the principles of a machine, and a careful comparison of models and drawings, to discover how far they interfere with previous inventions. The provision interdicting the granting of patents for what is not new and original, is the most valuable feature of the act of July last. But it will be impossible for the Commissioner to administer the law in that particular, according to its intent, without models and drawings of inventions previously patented. The consequence would be, in effect, the restoration of a great portion of the evils of the former system in multiplying conflicting rights, leading to much perplexity and expensive litigation. Much of the ground travelled over in the last forty years would have to be travelled over again before the point could be reached at which we arrived prior to the late conflagration.
The committee therefore believe that it is important to the interest of the country, as well as to the security of individual rights, that measures be immediately adopted to replace, as far as practicable, the records, drawings, and models which have been destroyed. After much inquiry and consideration, the committee are satisfied that, notwithstanding the apprehensions and anxiety so generally entertained, a restoration is practicable to a very gratifying extent. The first step must be to procure, for the purpose of being copied and recorded anew, the original patents. In most instances, descriptions and specifications of the inventions, and in perhaps a sixth or eighth part of the cases, drawings also have been annexed to the patents when granted. Drawings have been attached only when referred to in the specifications. The whole number of patents is a little upwards of ten thousand. It is believed that from six to seven thousand may be obtained for record. Many of the deficient drawings may be obtained from patentees, or may be supplied by the assistance of those whose familiar knowledge of the inventions will enable them, aided by the specifications, to delineate them with much accuracy. Many copies heretofore certified from the record to be used as evidence in the courts, will supply others.
Of the models, such as were trifling and unimportant, contained no new principle or combination of mechanism, and not useful for any of the purposes before alluded to, it will not be necessary to replace. The whole number of models was about seven thousand. It is the opinion of the Commissioner, and most others conversant with the subject, that three thousand of the most important can be replaced, which will form a very interesting and valuable collection, less numerous, indeed, but more select, and scarcely less useful than that which has been destroyed. Some of these would be replaced by voluntary contribution. But the greatest portion of them, even of those whose restoration would be most desirable, the committee are satisfied, can only be had by means in the hands of the Government. If it were in the power of the Government to compel patentees to replace the models and drawings lost by its improvidence, it would be an onerous and unjust tax upon those who, by their ingenuity, and at their own expense, built up an institution which, in its connexion with manufactures, with agriculture, and even commerce itself, has done much to advance the prosperity of the country. They have paid into the Treasury $156,907.73 more than has been required to meet the expenses of the office, including the salaries of the officers employed in it; and the committee cannot hesitate in recommending the appropriation of that balance to carry into effect the provisions of the bill which is herewith submitted.
The sentiment is not an uncommon one, that the tax upon patents is both unwise in policy and unjust in principle. Inventors are public benefactors, contributing to the promotion and improvement of all branches of national industry, and, in most instances, without any adequate remuneration. Who has done more to enrich the South, nay, indirectly, the whole country, than Whitney? And what was his reward? Let the South answer. Evans and Fulton, with genius and talents never, while they lived, appreciated to their worth, died overwhelmed by embarrassments. Whittemore, it is true, was more fortunate; but it was said that he availed himself of the mechanical genius of another who lived and died in poverty and obscurity.
It has not been the policy of our Government to draw a revenue from patentees. The duty imposed was intended only to meet the ordinary expenses of issuing patents. Many believe that even that should not be exacted. It is levying a contribution upon science and ingenuity, which cost the nation nothing, while they confer upon it important benefits.
The measures to be adopted in selecting and obtaining the models and many of the drawings, are matters of detail involving such a variety of circumstances and considerations, that it is impossible to make provision for them by law. That properly belongs, and should be intrusted to a temporary board of commissioners. The sum required to replace the three thousand models, which would include all whose preservation would be most desirable, is estimated by the Commissioner at $100,000. The expense of transcribing and recording descriptions, specifications, drawings, and assignments, is estimated at $53,000. A judicious and economical expenditure of these sums, it is believed, will restore the records and models to the full extent contemplated by the provisions of the bill submitted. By the statement from the Treasury Department, (marked E) it appears that the balance of the patent fund on the 31st December last was $156,907.73, including moneys received for patents and copies prior to the act of July 1836, which, though not expressly embraced by the terms of that act, properly belong to that fund. This balance will cover the expenditures above proposed of $153,000, together with $3,100 for record books, desks, and other office furniture, as per estimate D, and leave a balance of $807.73.
With such a restoration, and the addition of the specimens of fabrics and manufactures of various kinds which are in preparation in a number of the manufactories and workshops of the country, to be deposited in rooms in the new building, pursuant to the act of July last, we shall soon have less reason than is now apprehended throughout the country, to deplore the destruction of this great national repository. In two or three years the number of models will be scarcely less, and their character and value in the aggregate greatly improved.
It appears by the Commissioner that an additional examining clerk and also another copying clerk are necessary to keep up the increasing business of the office. The new duties assigned to the examining clerk make it a very responsible and laborious office. It is his business to make himself fully acquainted with the principles of the invention for which a patent is sought, and to make a thorough investigation of all that has been before known or invented either in Europe or America, on the particular subject presented for his examination. He must ascertain how far the invention interferes in any of its parts with other previous inventions or things previously in use. He must point out and describe the extent of such collision and interference, that the applicant may have the benefit of the information in so shaping or restricting his claim of originality as not to trespass upon the rights of others. The applicant should also be referred to the sources of this information, that he may be able to satisfy himself on the particular points of interference. This frequently leads to a lengthy correspondence, before the applicant can be persuaded that his invention or some rejected part of it, is not new. He often employs skilful and persevering council [sic] to urge and enforce by argument new views of the principles of his invention, who sometimes brings to his aid much mechanical astuteness. The examiner must also see that the specification accords with the drawing, and that the model is in conformity with both.
An efficient and just discharge of these duties, it is obvious, requires extensive scientific attainments, and a general knowledge of the arts, manufactures, and the mechanism used in every branch of business in which improvements are sought to be patented, and the principles embraced in the ten thousand inventions patented in the United States, and of the thirty thousand patented in Europe. He must moreover possess a familiar knowledge of the statute and common law on the subject, and the judicial decisions both in England and our own country, in patent cases. This service is important, as it is often difficult and laborious. Here is the first check upon attempts to palm off old inventions for new, or to interfere with the rights of others previously acquired. This is also the source whence the honest and meritorious inventor may look for aid and direction in framing his specifications as that he may be able to sustain his patent when issued, and find security and protection against expensive and fruitless litigation.
Suitable qualifications for these duties are rare, and cannot be obtained without such compensation as they readily command in other employment. It will, undoubtedly, be wise in the Government to affix such salary to this office as will secure the best talent and qualifications. Although an appeal is allowed by law, yet, if a high character is given to it, this will be the best, as it is the most appropriate tribunal for judging of these subjects, and its decisions commanding respect and confidence, there will be but little inclination to take exceptions to its judgment. Thus will be cut off a fruitful source of law suits, and our court calendars will cease to be crowded with cases arising out of the interfering rights of patentees. Meritorious inventors will secure in their rights, and the public relieved from imposition and embarrassment. These are among the first of the objects and merits of the act of last session. It appears that about one third of all the specifications are found, on examination, to contain no new principle, and that three fourths of the residue are either too broad in their claims of originality, or are otherwise irregular or defective, and are required to be set right at the office or sent back by the Commissioner for correction.
Under existing circumstances, without written, pictorial, or model record of any kind, it is apparent that the business of the office must either stand still, or proceed under very great embarrassment, which can be relieved only by the early action of Congress on the subject.
A bill is herewith submitted.
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A BILL in addition to the act to promote the progress of science and useful arts.
SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who may be in possession of, or in any way interested in, any patent for an invention, discovery, or improvement, issued prior to the fifteenth day of December, in the year of our Lord one thousand eight hundred and thirty-six, or in an assignment of any patent or interest therein, executed and recorded prior to the said fifteenth day of December, may, without charge, on presentation or transmission thereof to the Commissioner of Patents, have the same recorded anew in the Patent Office, together with the descriptions, specifications of claim, and drawings annexed or belonging to the same; and it shall be the duty of the Commissioner to cause the same, or any authenticated copy of the original record, specification, or drawing which he may obtain, to be transcribed and copied into books of record, to be kept for that purpose. And wherever a drawing was not originally annexed to the patent and referred to in the specification, any drawing produced as a delineation of the invention, being verified by oath in such manner as the Commissioner shall require, may be transmitted or copied as aforesaid, together with the certificate of the oath; or such drawings may be made in the office, under the direction of the Commissioner, in conformity with the specification. And it shall be the duty of the Commissioner to take such measures as may be advised and determined by the board of commissioners provided for in the fourth section of this act, to obtain the patents, specifications, and copies aforesaid, for the purpose of being so transcribed and recorded.
SEC. 2. And be it further enacted, That copies of such record and drawings, certified by the Commissioner, or, in his absence, by the chief clerk, shall be prima facie evidence of the particulars of the invention and of the patent granted therefor, in any judicial court of the United States, in all cases where copies of the original record or specification and drawings would be evidence, without proof of the loss of such originals. And no patent issued prior to the aforesaid fifteenth day of December, shall, after the first day of June next, be received in evidence in any of the said courts in behalf of the patentee or other person who shall be in possession of the same, unless it shall have been so recorded anew, and a drawing of the invention, if separate from the patent, verified as aforesaid, deposited in the Patent Office; nor shall any written assignment of any such patent, executed and recorded prior to the said fifteenth day of December, be received in evidence in any of the said courts in behalf of the assignee or other person in possession thereof, until it shall have been recorded anew.
SEC. 3. And be it further resolved, That, whenever it shall appear to the Commissioner that any patent was destroyed by the burning of the Patent Office building on the aforesaid fifteenth day of December, it shall be his duty, on application therefor by the patentee or other person interested therein, to issue a new patent for the same invention or discovery, bearing the date of the original patent, with his certificate thereon that it was made and issued pursuant to the provisions of the third section of this act, and shall enter the same of record: Provided however, That before such patent shall be issued, the applicant therfor shall deposit in the Patent Office a duplicate, as near as may be, of the original model, drawing, and description, with specification of the invention or discovery,verified by oath, as shall be required by the Commissioner. And such patent, and copies of such drawings and descriptions, duly certified, shall be admissible as evidence in any judicial court of the United States, and shall protect the rights of the patentee, his administrators, heirs, and assigns, to the extent only in which they would have been protected by the original patent and specification.
SEC. 4. And be it further enacted, That it shall be the duty of the Commissioner to procure a duplicate of such of the models destroyed by fire on the aforesaid fifteenth day of December, as were most valuable and interesting, and whose preservation would be important to the public; and such as would be necessary to facilitate the just discharge of the duties imposed by law on the Commissioner in issuing patents, and protect the rights of the public and of patentees in patented inventions and improvements: Provided, That a duplicate of such models may be obtained at reasonable expense: And provided, also, That the whole amount of expenditure for this purpose shall not exceed the sum of one hundred thousand dollars. And there shall be a temporary board of commissioners, to be composed of the Commissioner of the Patent Office and two other person to be appointed by the President, whose duty it shall be to consider and determine upon the best and most judicious mode of obtaining models of suitable construction; and, also, to consider and determine what models may be procured in pursuance of, and in accordance with, the provisions and limitations in this section contained. And said commissioners may make and establish all such regulations, terms, and conditions, not inconsistent with law, as in their opinion may be proper and necessary to carry the provisions of this section into effect according to its true intent.
SEC. 5. And be it further enacted, That whenever a patent shall be returned for correction and re-issue under the thirteenth section of the act to which this is additional, and the patentee shall desire several patents to be issued for distinct and separate parts of the thing patented, he shall first pay, in manner and in addition to the sum provided by that act, the sum of thirty dollars for each additional patent so to be issued: Provided, however, That no patent made prior to the aforesaid fifteenth day of December shall be corrected and re-issued, until a duplicate of the model and drawing of the thing as originally invented, verified by oath, as shall be required by the Commissioner, shall be deposited in the Patent Office.
SEC. 6. And be it further enacted, That any patent hereafter to be issued, may be made and issued to the assignee or assignees of the inventor or discoverer, the assignment thereof being first entered of record, and the application therefor being duly made, and the specification duly sworn to by the inventor. And in all cases hereafter, the applicant for a patent shall be held to furnish duplicate drawings, one of which to be deposited in the office, and the other to be annexed to the patent, and considered a part of the specification.
SEC. 7. And be it further enacted, That the Commissioner is hereby authorized and empowered to appoint agents in not exceeding twenty of the principal cities or towns in the United States, as may best accommodate the different sections of the country, for the purpose of receiving and forwarding to the Patent Office, all such models, specimens of ingredients, and manufactures, as shall be intended to be patented or deposited therein; the transportation of the same to be chargeable to the patent fund.
SEC. 8. And be it further enacted, That, instead of one examining clerk, as provided by the second section of the act to which this is additional, there shall be appointed, in manner therein provided, two examining clerks, each to receive an annual salary of ________ dollars; and also an additional copying clerk at an annual salary of ______ dollars; and also an additional copying clerk at an annual salary of _______ dollars. And the Commissioner is also authorized to employ, from time to time, as many temporary clerks as may be necessary to execute the copying and draughting required by the first section of this act, who shall receive not exceeding ________ cents for every page of one hundred words, and for drawings such reasonable compensation as shall be agreed upon or prescribed by the Commissioner.
SEC. 9. And be it further enacted, That, whenever the application of any foreigner for a patent shall be rejected and withdrawn for want of novelty in the invention, pursuant to the seventh section of the act to which this is additional, the certificate thereof of the Commissioner shall be a sufficient warrant to the Treasurer to pay back to such applicant two-thirds of the duty he shall have paid into the Treasury on account of such application.
SEC. 10. And be it further enacted, That all moneys paid into the Treasury of the United States for patents, and for fees for copies furnished by the Superintendent of the Patent Office, prior to the act to which this is additional, shall be carried to the credit of the patent fund created by said act; and the moneys constituting said fund shall be, and the same are hereby, appropriated for the payment of the salaries of the officers and clerks provided for by said act, and all other expenses of the Patent Office, including all the expenditures provided for by this act, and also for such other purposes as are or may be hereby specially provided for by law. And the Commissioner is hereby authorized to draw upon said fund from time to time for such sums as shall be necessary to carry into effect the provisions of this act, governed, however, by the several limitations herein contained. And it shall be his duty to lay before Congress, in the month of January, annually, a detailed statement of the expenditures and payments by him made from said fund.