Scientific American, v 40 (ns) no 1, p 2, 4 January 1879
Confiscation of American Patents
Hitherto one of the special features, and, we believe, special merits, of the American patent system has been the issuing of patents for invention without restriction or drawback in the way of after charges or conditions. An inventor applies for a patent and, if his claim is good, the patent is granted; and there the matter rests for the allotted term of years. The patentee can sell or transfer his right the same as other property. He is not obliged to develop the invention commercially, nor to pay any more fees. If through disinclination or inability the patent is not used, the right to use it is not forfeited. Of course the presumption is that the great mass of patents, if workable, will be worked, and the country will begin to profit thereby without delay. If not, the life of the patent soon expires, and the invention falls into the common stock of knowledge, to be used or neglected as its value may determine.
Our readers are aware that in the proposed amendment of the patent law (Senate Bill 300, section xi) an attempt is made to abolish this feature of the law. The reasons for so doing are succinctly stated in the report of the Patent Committee submitted to the Senate March 8. We quote:
"One inconvenience of the enormous increase in the number of patents granted is that many of them are for things of inconsiderable practical utility. Such patents are not merely useless, they stand in the way of every future inventor who may wish to make an advantageous use of some little feature which forms an incidental part of them. These are really obstructive patents; the thing they describe is useless in itself; they do not disclose an invention which will be so valuable when the practical difficulties of applying it have been overcome as to lead any one to spend time and money in the endeavor to overcome them; they lie dead and useless, practically abandoned as worthless by their owners. Such patents have no reason for existence, for they neither constitute nor create any progress in the useful arts. Something can be done in instituting a better examination when they are granted, but not much, for attempts at the outset to judge of the degree of future usefulness are found by experience to lead to fatal mistakes. The examination must be confined to the question of novelty.
"Section 11 undertakes to extinguish these worthless patents, by requiring the payment of a fee of $50 when the patent is about four and one half years old, and $100 when it is about nine and one half years old. The sums are large enough to make an owner think twice about paying them for a patent which, after four or nine years' trial, holds out no prospect of usefulness, while at the same time they are not too onerous for patents of any value. The plan is in use in England, and in a modified form on the continent of Europe, and judging from the experience in those countries will probably extinguish one half of the patents granted. It will take hold of just those patents which, useless themselves, reappear in the form of reissues, and cause those annoyances, reappear in the form of reissues, and cause those annoyances for which the worthlessness of the invention and not the ability to obtain the reissue is really responsible."
This reasoning we hold to be clearly fallacious at several points.
Grant that many patents are of inconsiderable practical utility, shall we therefore rob the inventor of that little because it is small?
How can a patent, or the idea which it covers, be justly called worthless and at the same time desirable to another? A.'s patent is undeveloped and worthless. Why? Because B. wants to use it! "It is naught, it is naught," saith the buyer." Shall the government, therefore, agree with him to the detriment of the owner?
If a patent really lies "dead and useless, practically abandoned as worthless" by its owner, will it be killed any deader by legislative enactment? A patent that is dead through inherent worthlessness is as incompetent of harm as any other worthless bit of paper. If it has life enough to be an object of desire to anybody, there is no reason why the would-be user should not pay for the privilege of owning or using it. There is no danger that he will pay more than he thinks it is really worth to him.
But, it is argued, it is desirable to get out of the way patents that are worthless and yet may be reissued and so become troublesome. Will the reissue of a patent on an inherently worthless invention give it force and vitality?
"It sometimes, indeed quite frequently, happens that an invention is "practically" worthless for many years, not through its own demerit, but because the inventor foreruns his time. Financial success implies an immediate demand, which does not always exist for an invention that is radically novel and valuable. The invention, even when unprofitable, may greatly hasten the social or industrial change which in after years will make it a great public benefit and also a source of profit to the owner. Shell we, therefore, punish the inventor by confiscating his property because he invented too soon? In how many cases is the inventor urged on by the hope of ultimately educating the community up to the use of his invention, though the immediate prospect is black enough, and so is encouraged to make and develop his invention to his own cost through many years? Take away the assurance that his patents once gained will hold his right until the community grows up to the appreciation of it, and you take away one of the strongest inducements to invent. "Even if I die before my reward comes," the inventor says, "the patent will remain as a legacy to my family." Very often it is all he can hope to leave them.
There is another way of looking at this question.
Suppose it true that a certain percentage of the patents issued are at once worthless and a hindrance to the progress of the arts. How large is that percentage? There are in force today, say, 100,000 patents; we believe that the actual number is even greater than that. How many of them are a source of "annoyance" through patent litigations and the like? To say one percent would be a gross exaggeration, and certainly not more than half of these would have fallen under the exterminating influence of the proposed rule had it been in operation.
Accordingly, to get rid of a few patents alleged to be mischievous, it is proposed to subject the entire class of future patentees to penalties at once uncalled for an unjust. Grant all that is charged against the "worthless" patents, so called, to get rid of them by such means would be paying altogether too much for the whistle.
Patent Office Practice
Commissioner Paine announces that hereafter letters patent and certificates of registration will be perfected and ready for delivery upon the day of their date. The last issue, under the rule heretofore existing, will bear date of December 17, 1878. Then there will be a hiatus until January 7, 1879, on which day, and subsequently, patents and certificates will be deliverable as soon as signed.
The Official Gazette of even date with the weekly issue will continue the usual announcements respecting the perfected patents and certificates of that date, but no information, either by Gazette or otherwise, will be given as to any pending case about to issue, except to the party in interest, until such case has been finally signed and sealed.
The New Patent Bill as Passed by the Senate
An Act to Amend the Statutes in Relation to Patents (Senate Bill 300) has been passed by the Senate, and is now before the House of Representatives for approval. As the adjournment of Congress is fixed for the 4th of March, the bill must soon be acted upon, or it will go over to the next Congress. The bill as it stands, while it contains some very excellent provisions, presents others that are very obnoxious; and unless the bad points can be eliminated we hope the subject will be postponed for the consideration of the new Legislature.
We will briefly recapitulate what to us appear to be the leading designs of the present bill, with a few words of running comment. In all there are 25 sections.
Sec. 1 provides that damages shall not be recovered for infringements that were alleged to have taken place more than four years prior to the commencement of the suit.
As the law now stands the owner of a patent may sue infringers at any time when he can find out that an infringement has taken place. But under the new provision, if the infringement is concealed or in any way escapes the knowledge of the patentee for four years, he has no remedy, and the infringer goes free. This section is an encouragement to infringers, is an injustice to patentees, and should not be passed.
Sec. 2 takes away from the inventor, substantially, the control and exercise of the patent for his own invention, and gives away to others the right to use the patent, against the consent of the patentee, for a price not to be agreed to by him, but fixed by people adverse to him, by means of the formalities of a court.
The existing law rests the exclusive proprietorship of the patent in the inventor, during the brief period of 17 years for which it is granted. This is one of the most satisfactory provisions of the present statute, and should be carefully preserved. If the new provision passes no man can hereafter say that he "owns" a patent. He will simply own a certificate showing that somebody else has the right to make use of the products of the inventor's ingenuity without so much as asking his leave.
Sec. 3 provides that if the inventor has the hardihood to bring a suit against an infringer and clearly proves the infringement, should the infringer then wriggle around and debar the inventor from getting a judgment for a sum less than twenty dollars, then, in that case, the inventor shall pay his own costs of the suit and also the infringer's costs.
This section practically imposes a heavy fine upon an inventor for attempting to stoop infringements.
Sec. 4 gives conditional privileges to infringers to continue their infringements after a verdict is rendered against them, during the pendency of their appeals.
Sec. 5 gives to infringers the privilege of procuring the renewal of injunctions, so that they may continue to infringe.
Sec. 6 provides that no re-issue shall be granted unless applied for within seven years from the date of the patent.
The present law permits the inventor to correct his patent by re-issue at any time during the life of the patent; this is an excellent provision, and tends to give value and vitality to property in patents. The provision of the new law assists and encourages the infringer.
Sec. 7 provides that if an inventor's specification happens at first to be so defective that an infringer can make and use the device without liability, the said infringer may always continue such use, without payment to the inventor (even after the latter procures a re-issue with properly corrected specification and claims.
Under the present law, if the original patent is found defective and the claims insufficient to prohibit infringements, the inventor may at any time obtain a re-issue, which shall be good for the remaining term of the patent, during which remaining term infringers must pay damages. The new provision aids and supports infringers throughout the entire term of the patent, and prohibits the inventor from recovering damages.
Sec. 8 provides a remedy where two persons have unwittingly taken a patent in their joint names, when only one of them was the real inventor.
Sec. 9 provides for the taking of testimony relating to patents, which may be stored away and used in new cases after the witnesses are dead and gone.
This appears to be another of the many provisions of the bill intended to assist infringers.
Sec. 10 provides that infringers may bring suits to have patents declared void.
This provision appears to be intended to help infringers in breaking down patents that stand in their way, but which belong to poor inventors who cannot defend such suits, or patents granted to those who are absent or deceased.
Sec. 11 requires that patentees who have requested infringers to stop such infringement, shall commence suits for damages within a reasonable time; otherwise the infringer may continue the infringement during the entire term of the patent, without liability to the patentee.
The majority of patentees are poor people, who, in many cases have not the means to bring suits against infringers, and all they can do is to request the latter to desist or pay royalty, reserving until a future time, when their means admit, the bringing of a suit.
The law, as it now is, permits a poor man to bring his suit for infringement whenever he desires. The new provision appears to be aimed against the inventor, and in favor of the infringer.
Sec. 12 provides that patent fees shall hereafter be paid as follows: $35 on the issue of the patent, $50 in four years thereafter, and $100 in nine years thereafter: total $185 for each patent. Failure to pay either of the two last fees nullifies the patent.
Under the present law the fee for a patent is only $35. No other taxes or penalties are imposed. The proposed law introduces the European system of multiple taxes, and imposes a heavy burden upon the inventor. This subject will be found more fully discussed in another part of our paper.
Sec. 14 regulates the issue of licenses by joint owners and patentees. 15 provides punishment for fraudulent or deceptive conveyances of patent rights. 16. Commissioner and assistant to give bonds. 17. Prices of printed copies of patents authorized to be increased. 18 relates to certified copies of patents. 19 relates to payment of final fee in allowed cases. 20 regulates issue of patents for inventions previously patented in foreign countries. 21 permits full owners of patents to obtain reissues in their own names. 22 regulates the renewal of lapsed allowed cases. 23 regulates the stamping of date of patent on patented articles. 24 regulates the issue of patents in interference cases. 25 repeals all conflicting laws.
It will be seen from the brief comments here presented, that in our view the passage of the new law will make a very radical change in the existing system, and that its practical working would probably be disadvantageous to inventors and patentees. At the same time it must not be forgotten that patents are monopolies, which, though on the whole of great benefit to the nation, are in some cases very annoying to the public, and very burdensome and disastrous to many private interests. Perhaps the present laws can be modified so as to remove some of these difficulties. But the remedy proposed by this bill is worse than the disease. It seems unfair to enact a law like this, which in so many of its principal provisions appears to be designed to sweep away from inventors all personal benefits from the fruits of their ingenuity, and bestow them, free of charge, upon infringers.
We hope that all who are opposed to the new law will promptly use their influence with members of Congress to prevent its passage.
Senate Patent Bill No. 300 -- Shall it Pass the House of Representatives?
The term of the present Congress is rapidly drawing to a close, and little time is left for the friends of industrial progress and the rights of inventors to express their disapprobation of the obnoxious clauses of the new Patent Bill (Senate Bill 300).
We are informed, by parties whose knowledge and integrity cannot be questioned, that the concerted plan of the promoters of the bill is to allow no further discussion of it, but to await a favorable moment for their scheme, and rush it through during the last days of the session in the hurry and excitement preceding adjournment -- a period noted for hasty and ill-considered legislation.
We are confident that, were time enough allowed for all the members to become thoroughly informed in regard to the mischievous tendency of several of its provisions, the bill would be overwhelmingly defeated; but there would seem to be no time for that now. It is too late for extended arguments against the impolicy of crippling and discouraging the class of men who (as all parties acknowledge) have been and are one of the great motive forces of national progress; too late for elaborate protests against the threatened invasion of the constitutional rights of inventors, and the disorganization of our industries be the legalizing of infringements.
But it is not too late, we trust, for an effective expression of popular disfavor -- by telegraph. Disregarding the slow formalities of memorials and like communications by mail, all who regard the inventor as more worthy of encouragement and protection than the infringer, should promptly avail themselves of the means which invention has provided for such emergencies, and telegraph their disapproval of Senate Bill 300. No member not already known to be opposed to the bill should be left a moment in doubt as to the feeling of his constituents. The changes which the bill would make in the spirit and the ruling of the patent system, should it become a law, are fatal; and no surer means could be devised for preventing its passage than an electric expression of popular will against it.
Hitherto the inventor has enjoyed, so far as the courts could secure it, the exclusive control of his invention which the Constitution guarantees. His patent has been regarded in the courts as presumptive evidence that his claim to the invention was a just claim. Under the proposed amendments of the law, all this will be reversed. The patentee's right will be burdened by needless penalties in the shape of heavy fees, and laid open to invasion by any one who chooses to infringe it. And when his case is brought into court the inventor, not the infringer, will be treated as the culprit.
Every inventor feels that the bill is aimed against him; and should it become a law, we fear that there will result a disastrous fulfillment of the prediction of a hard-working and hitherto successful inventor, who says:
"One thing I have decided upon. If the law is changed, so as to lessen my rights as an inventor, I am through. I quit the field, and thousands of others will be compelled to do the same."
The country cannot afford to have such men quit the field. Policy, as well as justice, forbids any measure tending to compel them to quit the field; and the members of the lower house should not be left to enact the proposed wrong unwarned.
Let every citizen, who has the great question of justice and wise policy at heart, use the telegraph freely, and encourage his friends to do likewise. The cost will not be great, while the good that may be done in preventing hasty or underhanded action may be enormous.
In case our suggestion arrives too late, or the telegraphed advice fails to stay the passage of the bill, then by the same means the popular will might be brought to bear directly and successfully upon the President. In either case use the telegraph.
The Patent Bill Defeated
The bill which threatened so much injury to the patent system (Senate Bill 300) was brought before the House, March 1, and failed to pass.
The industrial interests of the country have happily escaped an eminent peril; for a measure which involved so serious an invasion of the rights of a valuable species of property, to the discouragement of the class of men upon whose efforts our varied industries are chiefly founded, must have reacted disastrously upon the prosperity of all classes.
Accordingly the thanks, not only of inventors and manufacturers, but of the entire community, are due to the members of Congress who voted against the obnoxious measure, and still more to the thoughtful citizens throughout the land whose multitudinous protests against the passage of the bill convinced Congress that the people were emphatically opposed to the threatened invasion of the rights of inventors.
The advocates of the measure attribute its failure in Congress very largely to the storm of communications which poured in upon the members during the last days of the session; an admission which inventors, and all who hold that the law should favor the patentee rather than the infringer, will do well to bear in mind. The same honorable and effective weapon of defense against the sophistries of powerful corporations -- who are determined to mould the patent system in their own interest and against the just rights of inventors and small manufacturers -- will assuredly be needed again.
The victory is but a temporary one. Those who are conspiring against the integrity of the patent system are as persistent as they are powerful and unscrupulous. Their agents in Washington and elsewhere are very adroit in covering their aims. While volubly asserting that their sole purpose is the removal of certain evils attending the administration of the patent law, whereby a few innocent farmers and others are made to suffer the consequences of their own indiscretion, the real object is to secure the virtual reversal of the fundamental spirit of the patent system, so as to give to a few combinations of wealthy railway and manufacturing corporations the practical control, on their own terms, of every invention which they may care to use.
There is good reason to believe that a new scheme, involving all the obnoxious features of the bill just defeated, will be pressed upon the incoming Congress; and unless prompt action is taken by the inventors and individual manufacturers of the country to make sure that their representatives in Congress are not left in ignorance of the practical merits of the questions at issue, there is a danger that a skillfully worded bill may be pushed on to passage before the members discover its hidden purpose.
There is throughout the country a widespread and earnest feeling among inventors in favor of the formation of an Inventors' Guild, for the encouragement and defense of patentees. Concerted attack, it is said, should be met by concerted defense; and the inventors of the land are numerous enough to be exceedingly powerful, if they will only act together.
Possibly such an organization, properly sustained and officered, might be useful; but we are inclined to think that it is as individual citizens, insisting on their constitutional rights, that inventors can make their influence most beneficially felt. It is not possible for a properly instructed Congress to become the cat's-paw of anti-patent combinations. And if the inventors of the land will personally attend to the business of placing plainly and persistently before their representatives the questions of fact, justice, and sound policy involved in the preservation of the patent system substantially as it is, amending it only to give greater encouragement to inventors and fewer opportunities to infringers, the selfish aims of infringers' unions will surely be thwarted. The inventors have on their side justice and the support of all intelligent lovers of fair play. They are sure to win if they do not allow their case to fail through their own inaction. The hopeful experience of the past few weeks gives abundant reason to believe that indifference to their rights and interests is not a failing of inventors as a class.
The Advantage of Cheap Patents
The Philadelphia Public Ledger remarks that although the patent right system has been in operation for many years, there is still a strong disposition not to recognize the property rights of individuals in ideas embodied in new inventions, and quite recently an attempt has been made to modify the patent laws in the direction of making patents very costly and difficult to obtain. Without entering into the general question as to what changes in the law, if any, are desirable, it is worth while to remark that The Machinery Market and other English trade papers ascribe our successful competition in manufacture to the influence of our patent laws in stimulating inventions. Mr. Thomas Brassey, several years ago, warned the British workman that he had "more to fear from the highly paid labor of America, which brought labor saving machinery and mechanical skill to such a degree of perfection, than from the lower wages of the continent of Europe." It costs fully ten times as much for a patent in England as in this country, and therein we have a great advantage. It is true that many patents are issued for useless or valueless inventions, but even the failures stimulate the invention of better devices, and the general result of encouraging inventors and inventions is that machinery is carried to a higher degree of superiority here than in any nation of Europe, and better machinery enables us to compete even where we are under commercial disadvantages as to the cost of raw materials, wages, etc.