Scientific American, v 18 (ns), no 18, p 272, 28 October 1882
The Past Year's Work in the Patent Office
The report of the work of the Patent Office for the fiscal year ended June 30, 1882, just submitted by Commissioner Marble, shows that there were received 27,622 applications for patents for new inventions; 854 for design patents; 407 for reissue patents; 737 for registration of trade-marks, and 442 for labels, a total of 30,062. There were filed during the year 2,455 caveats. The number of patents granted, including reissues and design patents was 17,713. The number of trade-marks registered was 1,079; labels 233; total, 19,015. The number of patents withheld for non-payment of final fee was 1,637; patents expired, 5,123. The receipts of the office from all sources were $:930,864.14; expenditures (not including printing) were $:651,719.50; surplus, $:279,144.64.
The abridgement of United States patents was discontinued August 1 for lack of appropriations. The Commissioner asks that legislative action be taken to authorize the office to compel the attendance of witnesses to testify as to the use or sale of any invention before the two years' limit, when an application for a patent therefor is pending. He also expresses the opinion that the terms of patents issued should not be rendered uncertain by the operation of the laws of any foreign country, nor by the failure of the patentees or their assignees to do what such laws required. If the patent for an invention which has been first patented in a foreign country should be limited in its term, he thinks that a definite term should be fixed, and a time within which application must be filed in the Patent Office after the issuance of such foreign patent be prescribed. In view of the fact that the terms of which patents may be granted in foreign countries are shorter than that for which they may be originally granted in this country, he thinks that twelve years would be a proper term for patents when the invention has first been patented, or patent applied for, in a foreign country, and that the applicant should file his application within two years after the issuance of such patent or application therefor.
Some investigating person has furnished the New York Times with a brief list of patents on small things which in many instances have proved great mines of wealth to the lucky discoverer. The list might be extended to a much larger number, but we only state those given in the Times. Among these trifles is the favorite toy -- the "return ball" -- a wooden ball with an elastic string attached, selling for ten cents each, but yielding to its patentee an income equal to $:50,000 a year. The rubber tip on the end of lead pencils affords the owner of the royalty an independent fortune. The inventor of the gummed newspaper wrapper is also a rich man. The gimlet pointed screw has evolved more wealth than most silver mines, and the man who first thought of putting copper tips to children's shoes is as well off as if his father had left him $:2,000,000 in United States bonds. Although roller skates are not so much used in countries where ice is abundant, in South America, especially in Brazil, they are very highly esteemed, and have yielded over $:1,000,000 to their inventor. But he had to spend fully $:125,000 in England alone fighting infringements. The "dancing Jim Crow," a toy, provides an annual income of $:75,000 to its inventors, and the common needle threader is worth $:10,000 a year to the man who thought of it. The "drive well" was an idea of Colonel Green, whose troops, during the war, were in want of water. He conceived the notion of driving a two-inch tube into the ground until water was reached and then attaching a pump. This simple contrivance was patented after the war, and the tens of thousands of farmers who have adopted it have been obliged to pay him a royalty, a moderate estimate of which is placed at $:3,000,000. The spring window shade yields an income of $:100,000 a year; the stylographic pen also brings in $:100,000 yearly; the marking pen for shading in different colors, $:100,000; rubber stamps the same. A very large fortune has been reaped by a western miner, who, ten years since, invented a metal rivet or eyelet at each end of the mouth of coat and pants pockets to resist the strain caused by the carriage of pieces of ore and heavy tools.
How Our Farmers are Helped by the Patent System
There has been this fall what is called a crisis in the grain trade of Russia.
When asked the cause of it, a grain merchant of St. Petersburg replied: "The American cheap grain has completely undermined us. It is clear that we cannot compete with our transatlantic friends, at least under present circumstances. Our agriculture is in a primitive state, and our transportation is in its infancy. In spite of dear labor, American grain costs the producer only half as much as Russian grain."
The great contrast in the relative situations of the grain merchants of Russia and America but faintly illustrates the contrast in the positions of the farmers of the two countries.
With American facilities for cheap and rapid transportation, the price of grain at the farm much more nearly approximates the seaboard price than is the case in Russia. In other words, while it does not cost the newly immigrated Russian farmer in the West half as much to raise a bushel of grain as it does his brother in Russia, he gets for it a far greater share of the Liverpool market price; and all other American farmers enjoy the same advantage over their chief competitors for the export grain trade of the world.
These advantages are in no way due, it will be observed, to the superior skill or thrift of the farmer himself. He has at command -- thanks to the geographical position of his farm -- better means for producing and handling his crops and for getting them to market. These alone give him his commanding position; and for these he is indebted entirely to the activity of our inventors and manufacturers. The concurrent testimony of all our inventors and manufacturers is that their productive activity has been greatly stimulated and sustained, if it was not originally awakened by the inducements held out by the Patent Office in moderate fees and the protection of inventors' and manufacturers' rights which the patent laws afford.
And yet, because of minute and incidental inconveniences arising from the application of the patent laws -- in many cases attributable largely to contributory negligence on the part of the sufferers -- a considerable class of our Western farmers would wipe out those features of the patent system which make it most effective in stimulating invention.
Without the improved machinery -- which has been invented because improvements were patentable and thereby defendable and therefore valuable -- the enormous and cheap grain crops of the West could have no existence. Without our means of cheap transportation -- which have been invented because patentable, protectable, and profitable -- the grain, if produced, would have to rot in the bins or be burned for fuel, for it would not pay for hauling half across the continent. Without the enormous home market for ninety-nine hundredths of our grain production -- due mainly to the multiplication of non-producing consumers employed in purely mechanical pursuits which have their basis in the patent system -- the surplus of agricultural products beyond what could be exported would make such crops as we now raise unprofitable to the growers, even at the present low cost of production.
Whatever way we may look at it, the disposition of our farmers to destroy the fundamental basis of the patent system is ungrateful, if it is not also suicidal.
"But," the agricultural classes may argue, grant that the patent system has been of great use in helping us to gain our present commanding position, we do not need it any longer; we have paid roundly for the benefits received; and may now do away with it, as one removes the scaffolding from around a completed house. It has served its purpose, well or ill; from this time forward it must be more an inconvenience than a benefit. Let it go.
Could not the same have been said as truly last year, two years ago, or five years ago? And has not the cost of production been reduced, or the scope of production increased, by inventions made since then?
A correspondent engaged in developing transportation of Western products to Eastern markets in refrigerator cars, thus points out some facts bearing upon this question:
"Within your recollection and mine, butter made in the West did not command as good a price in Boston and New York markets as when made in the immediate vicinity of New York, or as Vermont butter in Boston. In the year 1878-79 a Western maker of creamery butter took the prize in New York at the national dairy fair for creamery butter. The next season the same party said to me: 'It is of little use for me or my neighbor to make the superior quality of butter, or to gather our eggs in summer, for we find it impossible to place them in good order in Eastern markets and command the price their quality should give us.'
"Referring to the fact that last year and the year before one fifth of the butter that left Chicago for Eastern markets was carried in our cars, although we had only the Boston outlet for them at that time, you can see that the obstacle which had hindered Western butter makers from securing a good price for their article was largely overcome. This is specially apparent from the fact that our heaviest shipments were in the hottest months, and that in the wholesale markets at Boston this same Western butter was commanding a better price than Vermont butter from one to two cents per pound. The agent for this particular creamery said to me in Boston last week: 'Our fine grades of Western butter are sold ahead, and prices are very firm for such goods,' thirty-nine cents being the wholesale price that day.
"In view of these facts, have the patents which we have introduced for refrigerator cars done anything for the Western farmers? The butter that took the prize at the last international dairy fair in New York had been made the previous June, and kept in one of our cold storage houses for six or eight months. Eight years ago, the state of the art would have made this thing impossible. There have been, from parties not thoroughly posted in the matter, some severe attacks upon dealers in large cities who have bought, during the season when the market was overstocked with butter, eggs, and such articles, and placed them in cold storage houses at the distributing points to be sold during the winter when it was impossible to get fresh made stock. I saw some eggs candled from cold storage houses in Boston, where they had been for nearly nine months, and to the case of forty-nine dozen one-half dozen to the case were all that were thrown out, and a portion of these were cracked from handling. This would make the percentage of shrinkage very small indeed. The eggs were selling for twenty-seven cents per dozen. How much could the farmer have realized from these eggs, if he had been obliged to sell them when gathered, with no chances for storage?
The Western Rural might say that the middleman made this profit between the spring and fall market; but that is only the superficial view. The farmer has the same opportunity to hire storage in any of the large cities that the commissioner merchant has, and the same opportunity to get full price for his eggs, in the winter, and he does secure an advantage when he makes his sale at a proportionally higher price for his eggs from the fact that they can be stored until they become somewhat scarce. The newspapers have had considerable to say about shipments of dressed beef from the West, and you were kind enough to say in a recent article that our cars have had something to do with that business. An owner in the largest herd of cattle in the West tells me that the loss from cripples now made in shipping in stock cars would pay the freight from the extreme West to market on the hides, tallow, and bones of the whole shipment, if the shipments were to be made dressed. In this way it looks to us as if we had brought the market for Western products very near to the door of the farmer and producer.
"These things would not have been done without some object for the parties to introduce improved refrigeration."
The influence of improved transportation in bringing the market nearer and nearer the farmer's door is shown not alone in connection with minor products. In 1878 the difference between the average price of wheat throughout Iowa and in New York is given by a Western writer as a fraction over 65 cents a bushel. By 1880 this difference has been reduced to a fraction under 40 cents. On a crop of 33,000,000 bushels and more, the difference meant something over eight million dollars to the profit of Iowa farmers. The benefits received by other farmers in the far West were proportionally great, and this is only one of the advantages reaped by the farming interests in recent years by virtue of improvements brought about mainly through the agency of the patent system.
Is there any farmer so ignorant as to suppose that an end has been reached in improvements of this nature? or that the improvements will go on in the absence of all inducements in the way of protection and profit to inventors?
Patent Barbed Wire Fences
The following table shows the quantity of barbed wire that has been sold each year from 1874 to 1882, inclusive:
Amounting in 1874 to 10,000 lb. made and sold " in 1875 to 600,000 lb. " " " in 1876 to 2,840,000 lb. " " " in 1877 to 12,863,000 lb. " " " in 1878 to 26,655,000 lb. " " " in 1879 to 50,337,000 lb. " " " in 1880 to 80,500,000 lb. " " " in 1881 to 120,000,000 lb. " " " in 1881 to 160,000,000 lb. (est)" "
The Design Patent Law
To the Editor of the Scientific American:
The editorial in the Scientific American of November 11, upon a recent decision of the Commissioner of Patents in relation to design patents, seems to have been written under a decided misapprehension of the existing practice in the Patent Office.
It is stated in that article that heretofore the grant of design patents has been limited to "designs for decorative work" only, and that the custom of the office has been to refuse patents for new and better shapes of machines and articles of manufacture. If by "better" is meant that the shape of the given thing renders it more capable of performing its function, then the practice has been correctly stated, and the decision referred to simply confirms this practice, and is based upon sound principles; if, however, the word be not so used, the incorrectness of the view taken is unequivocally shown by the office portfolios, which are filled with drawings of patented designs in all classes of invention. Design patents for the shape of chairs, tables, sofas, steam engines, and their frames, and even for the configuration of complicated machines, have been granted in large numbers. Patents have been refused mainly in those cases in which the shape sought to be protected has performed some mechanical function, and should therefore have been made the subject of an application for a mechanical patent. The T-shaped shingle machine referred to was refused protection for this reason, not because the design was not ornamental. Had the specification merely described and claimed the shape of the machine, without reference to the mechanical advantages arising from such shape, a patent would have been granted without question, as clearly appears from the record.
The decision of the Commissioner in the Norton case does not change the practice of the office in any particular. This case turned upon the question of the meaning of the word "useful," employed in the Design Act to define one of the qualities of patentable shapes or configurations of articles of manufacture. Is its meaning that of the ordinary language of life, or has it that technical sense which it has judicially been declared to have in the statute relating to mechanical inventions?
"'Useful' in the patent law," says the commissioner, "is in contradistinction to 'mischievous.' The invention should be of some benefit (Cox vs. Briggs, 2 Fish. 174). A design if not 'mischievous,' is useful if it attracts persons to it, or to articles made like it. It may not be of great artistic excellence, but if it be attractive it is useful."
In the light of the record, the important point determined by the decision in question is that the mechanical function performed by the shape or configuration is not to be considered in determining its patentability as a design. A shape alleged to produce a mechanical effect is to be protected by a mechanical patent. Patents are to be granted only for designs which are intended to appeal either to the eye or the aesthetic sense. It is not necessary that the article should be ornamental. The requirements of the statute are complied with if its appearance is such that purchasers are attracted to it. The law does not inquire into artistic excellence, but does require that the design should in some measure be attractive.
This decision by the commissioner is in strict accord with that of the Supreme Court of the United States in Gorham Manufacturing Company vs. White, 2 O.G. 592, in which it was said that the Design Act was "intended to give encouragement to the decorative arts," and that "it is the appearance itself ... which constitutes ... the contribution to the public which the law deems worthy of recompense."
Washington, D.C., November 15, 1882
Proposed Patent Laws for Japan
Another proof of the capacity of the Japanese to appreciate the conditions of success in the competition of modern nations for place and power, is seen in the favor with which inventions are regarded there. While their nearest neighbors, the Chinese, discourage the introduction of novel devices as undesirable disturbances of the established order of things, the Japanese recognize that they must bring their national industries up to the level of those of the countries of the West, by the introduction of foreign inventions and the development of home ingenuity, or else they must fall out of the race entirely. Accordingly a system of patent laws is proposed, but a serious difficulty is encountered in deciding what their scope should be to secure the greatest advantage to Japan.
It is argued that, because of the backward state of the art in Japan, it will not do to make originality or novelty a condition in granting patents. Multitudes of useful inventions, which from lapse of time have become common property in patent giving countries, are needed in Japan, but they are not likely to be introduced unless some one has an exclusive interest in importing them. Accordingly, it is proposed to grant patents to any person, native or alien, who will introduce any mechanical or other invention calculated to develop Japanese resources. The patentee need not be the inventor, nor is it necessary that the invention be of recent date, provided it be new to Japan, and calculated to be beneficial.
There is a basis of shrewd policy in this, but great care will have to be used in draughting the proposed law, or it will prove the reverse of advantageous to the country. The monopoly granted will have to be limited to the specific device patented and introduced, or else the patentee may gain by the introduction of a single fundamental invention the control of a vast range of later improvements and adaptations, which power may be exercised adversely to the general good in preventing competition and hindering national development in the arts.
Touching the policy of disregarding the inventor, and giving every right to the introducer, it is held that, inasmuch as foreign inventors have never enjoyed any rights under letters patent in Japan, the proposed law cannot be said to take anything from them. It would be a better as well as a juster policy, however, to give the inventor a degree of precedence, and allow him a reasonable time to decide whether he wishes to acquire the control of his invention in Japan by means of letters patent. Failure to do this might be taken as evidence of a voluntary surrender of his privilege, whereupon the introducer might set up his claim.
It is further proposed to make provision for the establishment of bureaus of observation in America and Europe, where experienced agents shall be on the watch to discover what inventions and appliances are calculated to meet the needs of Japan, with authority to secure and forward them. If the selected agents are shrewd and capable students of Western arts, and well acquainted with the needs and capacities of their country and countrymen, they may render valuable services for a time, but in a little while individual enterprise may be trusted to do the required work much more effectively.
One of General Washington's Patents
We were recently favored with an inspection of an original patent, which ranks among the earliest documents of the kind that were issued by the United States. We allude to the letters patent granted on May 4, 1796, to Peter Zacherie, of Maryland, for a new and useful mode of making nails and brads from cold iron. A good description of the machine is given in the patent, and the inventor says he can make with the machine eight million of nails a day. Pretty good for 1796. The patent is written upon parchment in a large clear hand. The front page bears, in large type, an official certificate of the fact of the granting of the patent, the wording being almost identical with the official form that is today used in the Patent Office. At the bottom of the certificate is the well-known bold signature of George Washington, President; it is attested by the signature of Timothy Pickering, Secretary of State; and is countersigned and certified by Charles Lee, Attorney-General. It is dated at Philadelphia, which was then the seat of government.
Taken altogether, it is a most interesting old document. It was shown to us recently by Mr. R.S. Chilton, formerly (from 1849 to 1851) librarian of the Patent Office. He now resides at St. Catherines, Ontario, but was appointed from New Jersey.