Scientific American, v 54 (ns), no 1, p 5, 2 January 1886
The Japanese Assistant Secretary of State, Koerhiyo Takahaski, a dignitary whose duties are confined chiefly to the Department of Commerce and Agriculture, is now in America, and will visit Washington and the Eastern cities. His mission to this country is to study the American patent system, with a view to improving the administration of that department in his own country. Since the Japanese patent law went into effect, last July, an average of two applications a day have been filed. These have been mainly for patents for agricultural machinery.
The Patent Bills Before Congress
A large number of bills are now before Congress, designed to modify the existing patent laws. Regarded as a whole, the most notable point concerning them is their diversity of purpose, which appears to have been determined, more or less, by local prejudice or the degree of popular enlightenment in the district or State whence the bill originated. Among them are bills for the nullification of the patent laws; for depriving the inventor of the right to sue infringers; for giving all purchasers exemption from damages, if they infringe; for the purchase of patents by the Government; for limiting the amount of profits the inventor shall make from his patent; for extinguishing patents by money payments from the Treasury to inventors of valuable new inventions; for reducing the term of patents from seventeen to seven years; for depriving inventors or their assigns of their patents, if they attempt to hinder others from manufacturing the same; for compelling patentees to give bonds, if they bring suits for infringement; for securing to those who buy an infringing device, the free right to use; for perpetuating testimony, reducing time for suits, etc. -- these are among the proposed enactments adverse to inventors.
To encourage and benefit the inventors there are bills for extending the designs patent law; for extending the trade-mark law; for extending the benefits of the copyright law to foreigners; for preventing the sale of patent rights for debt; for preventing old foreign inventions from being patented here; for reviving and extending all old expired patents, and existing patents, so that a new term of eight years shall now [sic] enjoyed; for extending the jurisdiction of the Circuit Court and facilitating patentees in recovering compensation for the use by Government of their patents; for the grant of patents for new flowers, fruits, horticultural and agricultural improvements; for the appointment of a commission to find out and report what changes are required in the patent laws -- cost therefor, twenty-five thousand dollars; for the establishment of a Patent Court in Washington as an adjunct to the Patent Office, with clerks, deputies, bailiffs, etc., at a cost of many thousand dollars; for extending the jurisdiction of the Court of Claims to patent cases.
We have not space at this time to go into the particulars of all these bills, but shall hereafter refer to several of them, as they contain interesting and novel features.
For the present, let us look at Senate bill 1,511, introduced by the Hon. James Z. George, Senator from Mississippi. Its first section, of twelve lines, provides that any person who in good faith shall buy a patented article without notice that the same was covered by a patent, or without notice that the seller had no right to sell such article, shall thereby become the absolute owner, and no subsequent notice that the seller was not the lawful owner shall in any way impair the right of such purchaser as absolute owner.
If this bill is enacted into law, a man who buys stolen property -- a patented wagon, for example -- will become the absolute owner, the bona-fide proprietor will be debarred from recovering his property, and the lawful patentee will be done out of his royalty fee. It is not often that three such glaring outrages on justice are packed within so brief a legislative proposition. The bill perhaps represents the Mississippian idea on patents, but it is not very encouraging to honest industry and invention.
The second section of the same bill provides that all patents hereafter granted shall be subject to purchase by Congress, for the use of the people of the United States, at such reasonable valuation and terms as may be provided by law.
This section seems superfluous in view of the first section; besides, Congress may at any time authorize the purchase of patents, and has frequently done so.
House bill 5,925, introduced by the Hon. Charles B. Lore, of Delaware, is intended to repeal all the present patent laws and establish another system of rewards for inventors. It provides that a patent shall be granted for one year only; the patent shall be submitted by the Commissioner of Patents to a committee of experts, who shall decide, finally, whether the invention is valuable or not. If found of no value, the inventor gets nothing and goes to grass. If the Expert Committee finds the invention of worth, they decide upon the cash value of the invention, which shall in no case exceed two hundred thousand dollars, and from that sum down, to be paid out of the Treasury by warrant of the Commissioner of Patents, the award to be final.
The Expert Committee would have a very delicate duty to perform in fixing the cash valuations, and they would constantly be subjected to risks and probabilities of making egregious errors. For instance, if they were to allow $10,000 as the value of the patent for the thread placed in the crease of an envelope to facilitate opening the same, how much ought they to allow for the second patent, that was granted for the little knot that was tied on the end of the thread, so that the finger nail could easily hold the thread?
Then, again, how much ought the committee allow for a simple device like the patent umbrella thimble slide, a single bit of brass tubing that costs a cent and a quarter to make? Probably the committee would think that one thousand dollars would be a most generous allowance, while two hundred thousand dollars -- the limit of the bill -- would, of course, be regarded as a monstrous and dishonest valuation. But the real truth is, the patent for this device is actually worth nearer one million dollars than two hundred thousand. The inventor, Dr. John J. Higgins, of this city, has already received over one hundred thousand dollars cash in royalties for his patents, and probably will receive three times that sum before they expire; while the licensees, the umbrella makers, are supposed to have already realized a million dollars' profits directly or indirectly arising from the control of this little article. Few people have an idea of the extent of the umbrella trade. In this city alone there is scarcely an umbrella manufacturing concern of any account that turns out less than two thousand umbrellas per diem.
We have not space to consider the valuation which other and greater inventions should probably receive, such as the harvester, the sewing machine, the printing press, the telegraph. The limit of compensation fixed by the bill would be far inadequate for such improvements.
As means of getting rid of the surplus income of the Government, the bill in question is admirable. It beats the pension schemes, river and harbor steals, the land grabs, and Congressional private secretaryships all out. But the bill, as it stands, is full of difficulties, and like to give rise to endless disputes and tergiversations, to overcome which and satisfy everybody, we advise Mr. Lore to amend his little bill as follows: First, grant patents and copyrights, free of charge, to all applicants; and second, the holder of any patent or copyright, on presenting to the Patent Commissioner a full assignment thereof, shall receive five thousand all silver dollars, redeemable in gold.
Our Patent System
If some philosopher should propose a scheme by which, without any expense to the state, a small army of ingenious men might constantly be employed in devising means for adding to the wealth of the country and to the comfort of its inhabitants, he would be regarded as a person of almost superhuman wisdom. And yet the patent system of the United States is such a scheme, producing such results. Last year the patents granted for inventions reached the enormous number of 23,329 [?], and most of these were for really useful devices that will effect a saving in time, money, and labor. It would be speaking within bounds to say that every year 10,000 men employ a considerable part of their working hours in making inventions, and to this class our wonderful industrial and agricultural progress is largely due. It is the genius of the inventor that has developed our manufactures, planted and reaped the prairies, and even fenced in the cattle ranges of the West. In his recent work on "Popular Government," Sir Henry Maine remarks that the power to grant patents by federal authority is one of those provisions of the Constitution which, though commonly overlooked by superficial critics, "have most influenced the destinies of the American people," and that it has made them "the first in the world for the number and ingenuity of the inventors by which they have promoted the useful arts." Practical men who study our industrial achievements come to the same conclusion. A few years ago a commission of Swiss manufacturers who visited this country returned home almost in despair of competing with us even in the manufacture of watches; and in their report they recommend, as of the utmost necessity, the creation of a patent system in Switzerland similar to our own. Sir William Thomson, President of the Mathematical and Physical Section of the British Association, has declared that "if Europe does not amend its patent laws, America will speedily become the nursery of useful inventions for the world."
The Boston Weekly Advertiser, from which the above is taken, expresses the opinion that the costs of a patent in this country seldom prevents an inventor from obtaining a patent, in consequence of his inability to pay the fees, although circumstances may require him to wait some time longer than he likes to, for lack of the necessary means.
Referring to the Patent Office, the editor adds: Small as the fees are, however, the income arising from them is sufficient not only to defray the whole expense of the Patent Office, but to leave a large surplus besides; and, therefore, there can be no excuse for the niggardly appropriations made by Congress for this department. The force is too small, so that inventors are kept waiting an unreasonable time for action upon their applications, and the salaries of the examiners are insufficient to attract such men as the duties of their office demand. If, therefore, any new legislation is to be had in respect to patents, it should be such as will increase the efficiency of the patent system, already a source of revenue to the state and of immense benefit to the country. But the changes most often proposed, and embodied in five or six bills recently introduced in Congress, are of a directly opposite character, and calculated to impair, in some cases to destroy, the efficiency of the present law. They are indications of a feeling which crops out continually, here and there, especially in the West, that patents are instruments of oppression, and that the country would be so much the richer if they could be done away with.
It is true that the protection of a patent sometimes involves a certain hardship to innocent purchasers of an infringing article, but the hardship in this case is no greater than in other cases where innocent purchasers are victimized by thieves. The man who buys a stolen horse is obliged to surrender him to the rightful owner, and although this is a hardship, it is a necessary one. And a similar hardship is equally necessary in the case of a patent, for if innocent purchasers were not liable to suits for infringement, the infringing manufacturer and seller would stand as well in the market as the owner of the patent; and when the article invented was, as it very often, perhaps most often is of such a character as to be made and disposed of easily, the value of the patent would practically be gone. In reality, it very seldom happens that an innocent purchaser is sued; but if his liability to suit were taken away, capitalists would not buy patents, and the prospective reward of the inventor would disappear. The capitalist is as indispensable to the inventor as he is to the workman; and it is impossible to destroy the property of the capitalist in patents without striking a fatal blow to the inventor behind him. The capitalist benefits incidentally by the patent law, but if this be a misfortune, it is an unavoidable one.
Those who wish to curtail the privilege of patent owners, or to abolish the system altogether, should bear in mind not only soulless corporations and rich capitalists, but the real object of the patent laws -- the inventor. Commonly he is a poor mechanic, toiling late at night; often and often, as the law books record, struggling with poverty, illness, and discouragement, but buoyed up for years, may be, by the certainty of obtaining, if he succeeds, a patent that will have a market value. It is for the purpose of keeping this man to his task that our patent system exists. Without the hope of pecuniary reward, great in proportion to the value of his invention, he will either make no attempt to invent, or succumb to the first difficulty. In the establishment of M. Schneider, the famous iron-worker of Creuzot, France, about 12,000 workmen are employed, but they are forbidden to take out patents for themselves, and the result is that they have never produced a single invention of sufficient value to be worth patenting by the proprietors.
A patent system, to be of any avail, musts touch every workman in the country, and to this end the patent must first, be obtained cheaply, and, second, be protected efficiently. If not cheaply obtainable, it will be beyond the reach of the workman; and unless fully protected, it will not be for the interest of the capitalist to buy the patent; consequently, there being no reward for the inventor, he will cease to invent. At present, our patent system combines both of these essential characteristics; to abolish either of them would be an act not only of injustice, but of folly.
Opposition to Notable Inventions
Those who by reason of constitution, habit, or ill humor are continually opposing progressive ideas and inventions might learn a profitable lesson, if they would glance for a moment at the history of almost any of our important improvements, and study, through the perspective of several decades, the ungraceful position of those who then maintained a similar attitude toward the advanced projects of their times.
In the presence of electricity, we may find the uncertain gas flame and the harmful products of combustion comparatively objectionable, but for upward of half a century we have considered its illumination a great advantage, after the more primitive methods of lamp and candle. When first introduced, however, our ancestors can scarcely be called enthusiastic about the fluid, if the following curious document represents at all correctly the popular sentiment on the subject. The list of names appended to the petition includes men who were at that time prominent among the most noted for their intelligence.
Philadelphia, Nov. 28, 1833
Remonstrance Against Lighting with Gas
To the Honorable the Select and Common Councils of the City of Philadelphia:
Gentlemen: The Subscribers beg leave respectfully to remonstrate against the plan now in agitation for Lighting the City with Gas, as they consider it a most inexpedient, offensive, and dangerous mode of lighting. In saying this they are fully sustained by the accounts of Explosions, Loss of Life, and great destruction of property, where this mode of lighting has been adopted.
We consider Gas to be an article as Ignitable as Gunpowder, and nearly as fatal in its effects; as regards the immense destruction of property, we believe the vast number of fires in New York and other cities, may be in a great measure ascribed to this mode of lighting; the leakage of the pipes and carelessness of stopping off the Gas, furnishing almost daily instances of its destructive effects. When we consider that this Powerful and Destructive Agent, must necessarily be often left to the care of youth, domestics and careless people, we only wonder that the consequences have not been more Appalling. It is also an uncertain light, sometimes suddenly disappearing and leaving the streets and homes in total darkness.
The Waters of the Delaware and Schuylkill, now considered the most pure and salubrious in the world, as many long voyages have fully tested, must soon, we fear, experience the deterioration which has rendered the Waters of the Thames to the present impure and unhealthy State, for no reservoir will be able to contain the immense fetid drains from such an establishment, and very soon the river must be their receptacle to the destruction of the immense Shoals of Shad, Herring, and other fish with which they abound; the same cause must produce like effects. Salmon, Smelts, and other fish, formerly caught in vast quantities in the Thames have nearly all disappeared. The constant digging up of the streets, the circumstance of the gas pipe which at the intersection of each square must come in contact with the water pipes, are difficulties and evils which we would anxiously avoid.
In conclusion we earnestly solicit that the lighting of our city with oil may be continued
And your petitioners, etc., etc.
P. Syng Physick
Jno. S. Warner
Jos. P. Norris
Geo. W. Smith
Wm. J. Duane
Charles H. Dingee
Jas C. Fisher
Jno. C. Creeson
David Paul Brown
E. Styles Ely
Edw. A. Sonder
Wash. J. Duffee
And several hundred others
But unreasonable as these apprehensions now appear, they are scarcely comparable with those excited a few years previously by Stephenson's newly invented locomotive. At a time when the commerce between Liverpool and Manchester was absolutely crippled for want of adequate transportation, and a company of gentlemen who had sufficient confident in the eminent inventor to risk the necessary means stood ready to undertake the construction of a railway between the two cities, so powerful and so prejudiced was the opposition the enterprise encountered that its success for some time remained very doubtful. When the proposition was before parliament, in 1825, pamphlets were issued offering every possible objection, and the newspapers declared the scheme impracticable and pernicious. It was affirmed that the cows near the line of the road would stop grazing and the hens no longer lay eggs; the birds would die from the poisonous gases discharged from the smokestack, and the preservation of pheasants and foxes be no longer possible.
People were seriously assured that the sparks would certainly set fire to fields and houses, while the air would be polluted with smoke. Prospective passengers were warned that they could not breathe in a train going so rapidly, and that they would be made worse than seasick. Farmers were frightened by the statement that there would be no further use for horses, and with the extension of the system the species would become extinct, and oats and hay would be unsalable. The boilers, it was said, would burst, the county inns be ruined, and the proper caste distinctions be broken down by such indiscriminate traveling. Failing to convince a people threatened with such a series of calamities, the assailants of the new invention took comfort in the belief that even were the railroad ever built, the weight of the locomotive would completely prevent its moving, and that the trains could never be worked by steam. Stephenson's tunnel was found very depressing; it was stated that "the sudden emersion in the gloom of the tunnel and the clash of reverberated sounds in a confined space combined to produce a momentary shudder, an idea of destruction, a thrill of annihilation!"
Yet these statements came from men not altogether unaccustomed to progress. The humiliating failure of their prophecies might well restrain more modern doubters from placing limitations upon the possibilities of the future.
State Interference with Patents
The Supreme Court of the United States decided long ago that all State laws for regulating the sale or disposition of patented inventions were unconstitutional and void, for the reason that the exclusive authority in such matters is by the Constitution exclusively bested in the Congress.
For some unexplained reason, the authorities of the State of Indiana have for years treated the Supreme Court decisions with contempt, and there are today among the Indiana statutes several laws relating to patents that are at variance with the paramount authority of the United States. The most recent Indianian effort in this line is the new State law that regulates the price at which patented telephones may be sold. The law specifies that no telephone company shall charge more than $3 a month for use of same; thus taking entirely away from the patentee all voice in or control of his invention. The validity of this law has been sustained by the highest tribunal of the State of Indiana, and is now in force there. The result is that the Bell telephone companies have in several of the cities of the State withdrawn their instruments from use, as the amount allowed by the local law is not sufficient to pay them any profit.
This action of the telephone company has proved so inconvenient to the Indiana law givers that they have applied for Congressional relief, and the Hon. Mr. Holman, Representative of the State, has introduced the following curious bill:
"A bill to secure to the public the use of patented inventions.
"Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That all persons or corporations, whether owners or licensees of patents granted by the United States are prohibited from withdrawing any machine or process from public use because of any regulation of the tariff of charges by the Legislature of any State or Territory wherein such machine or process is being used, without the consent of such Legislature."
This bill adds one more to the various schemes of legislation hostile to inventions now before Congress; like the others, let us hope it will suffer defeat.
Indiana has profited vastly, in common with all of the States, from the many new industries and manufactures which inventive genius has created and given the country. The industrial prosperity of the State is largely based upon the wealth which has been brought in to her by the use of new improvements and inventions. If they are to be withdrawn or discouraged, property values must necessarily decline, and manufacturing industries must be removed to more congenial places. With a strange inconsistency, the Indianians, by their own laws, deal themselves injurious blows, and then seek the aid of Congress to avert the resulting mischief.
The Proposed Extension of Patents
We have already given a summary statement of a number of bill that have been brought before the present Congress for the practical nullification of patents. As patents are a source of wealth to the country, and therefore to be fostered, not attacked, these bills, in their objects, deserve condemnation. Whether an invention be regarded as a property per se, or as only acquiring that status after patenting, the simple material interest of the Government requires that inventors should be encouraged, not repressed. Hence it is a matter of some interest to find a bill presented (H.R. 4,064) that on its face at least seems designed to protect, not assail, the inventor. In this sense it is a decided novelty; but it only goes a certain distance on the right way, but not far enough.
The bill applies to all patents ever issued, or issued and extended, or reissued, expired or unexpired. On application, the Commissioner of Patents is authorized to extend them for an additional period of eight years. Such extension is not to confer the right to damages for any infringement committed between the expiration of the original patent and its renewal. The interested party, who may be inventor, or administrator, or executor, must prove the value of the invention, and show what profit it yielded such party or parties. Publication in the District papers and elsewhere of the proposed extension is provided for. Should the patent be shown eligible for extension, a total fee of twelve hundred dollars is to be paid. Two hundred is a preliminary fee, to be paid before publication; one thousand dollars is the final fee, to be paid before issue.
On its face, as provided for the possible extension of all patents ever granted, this bill might appear revolutionary. But it is hedged in with so many provisions that this character is to a great extent repressed. Thus, the size of the fee required would cut off many applications. All expired patents that are to be renewed under it must have their application filed within six months of the date of the passage of the bill. This provision would operate in the same way as the high fee. The bill would insure a busy six months among the patent lawyers and in the Patent Office. The amount of applications that would be filed in that period would exceed all precedent. Many a device, duly patented, that yielded the patentee a very poor return for his ingenuity, has now, as the basis of improvements, mounted into great importance. Many of the early patents covering the modern straw cutter, the plow, washing machine, churn, sewing machine, mower and reaper, the planing machine, the vulcanized India rubber, the telegraph, and hundreds of other great inventions, would certainly claim the new lease of life. The amount of revenue to be derived from some of these patents, if revived and extended at this day, would be simply fabulous.
Not only would this bill benefit some of the early inventors. The patent lawyers in the new infringement suits which it would occasion would reap a rich harvest. The circuit courts would have more of their time than ever devoted to patent cases. It would be interesting to see how the old patents would now be treated when they reached the Supreme Court. There would be a probability of more rigid construction being awarded their claims than they received in former days.
The limited time within which applications under this bill is to be made would prevent many extensions. But all unexpired paying patents would certainly be extended under if it allowed. In other words, the terms of many important patents would be extended to twenty-five years.
In this there would seem to be little objection. The award of a patent right is by the best authorities considered a bonus from the Government. Property in ideas has never been recognized. All protection accorded them is considered artificial, and in the nature of a monopoly. The term of a patent is the measure of the bonus. Otherwise, as a matter of simple justice, patents should be awarded for all time, and the Patent Office would become a simple office of registry. A twenty-five years' term would not from this standpoint seem too great a reward, especially when it is remembered that the last eight years would be conditional on an insufficient return having been yielded by the term of the original grant.
The bill has a great deal of good in it. Any provision for the indiscriminate extension of all expired patents would be so revolutionary as to deserve opposition. But the present bill has so many limitations that it would not seem destined to do any harm in this regard. Indeed, it may be considered to err in the other direction.
If expired patents are only to have a limited time for securing their extension, six months does not seem enough. The amount of the fee is quite disproportionate to the prevailing rates at the Office. These two features give the bill a disagreeable aspect, as, to say the least, they suggest the possibility of its being presented in the interest of some particular corporation or patentee.
The one and only restriction needed is contained in the provision that the applicant must show that he has been insufficiently rewarded for his work. This properly acted upon would suffice. No high fee or restriction of period of application is proper.
In such a bill as this, it would be well to insert some special clause relating to extension of claims. Many an old patent of greatest merit would be useless on account of its restricted claims. If justice dictated the extension of a patent, the same quality would suggest the propriety of seeing that its claims were made to cover the essential features of the device, and its points of novelty judged by the state of the art at the period of its original date of issue. The scope of the claims might justly be determined in the extension proceedings. The present treatment of expanded claims of reissues by the Supreme Court is a subject of general criticism among patent lawyers.