REPORT OF THE COMMISSIONER OF PATENTS FOR THE YEAR 1868
-----------
January 21, 1869 -- Referred to the Committee on Patents and ordered to be printed..
-----------
DEPARTMENT OF THE INTERIOR
Patent Office, Washington, D.C.
January 21, 1869
Sir:
In compliance with the requirement of section 11 of the Patent Act, approved March 3, 1837, I have the honor to forward herewith, my annual report upon the state and condition of the Patent Office.
With great respect, your most obedient servant.
ELISHA FOOTE
Commissioner
Hon. Schuyler Colfax,
Speaker of the House of Representatives
-------------
UNITED STATES PATENT OFFICE
Washington, D.C., January 20, 1869
Sir:
During the year ending December 31, 1868, there have been filed in the Patent Office 3,705 caveats, and 20,445 applications for patents; 12,959 patents have been issued, 419 have been re-issued, and 140 extended.
Compared with other years, the business of the office has been greater than that of any preceding period. The number of patents issued has been more than double the number of 1865, and more than three and one-half times that of 1858.
Since the Patent Office was first established its business has had a rapid growth in amount and in importance. In 1836, eight or ten persons were enough to transact all its business. Now between three and four hundred are required.
This increase has arisen in part from the growth of the country, but more from the stimulus that our patent laws have given to invention. The rewards which they have held out for successful improvements have increased in value with the progress of the country and with the more proper appreciation and greater security of patented property. A really successful invention now brings to its author a competency for life; and as a consequence, the efforts of almost every class in community are directed in search of useful improvements.
In all those improvements of life to which patent laws relate our own age has witnessed more advance than all the preceding ages of the world taken together. One improvement seems to have begotten another. New fields for exploration have been constantly opening. And so far from reaching any limit of invention, we seem but on the way to other advances and improvements beyond our present comprehension.
I am, however, unable to attribute the extraordinary increase of the last few years in the number of patents issued to an equal increase of real improvements; for I apprehend that much of apparent prosperity has arisen from the allowance of patents that should never have been granted.
Several causes have contributed to this:
1st. A practice has recently grown up of subdividing inventions and issuing several patents for what was formerly embraced in one. It has served to increase the receipts of the office, but at the same time it has greatly increased the expenses of the inventor, not only for office fees, but for all the other expenditures incurred in obtaining patents. Had the practice been confined to separate and distinct improvements upon different parts of a machine, no exception could be taken to it, but it has been carried to the extent of several patents for the same invention, and patents for parts, which taken alone constituted no invention. It has tended to complicate and confuse patented rights, and, in some instances, I apprehend, has been a source of frauds upon the public. I am not aware of any useful purpose that it has served, and believe it should be regarded with disfavor.
2d. Ample provisions have been made from time to time to guard against the improper rejection of applications for patents. In case of a refusal, the examiner in charge must assign his reasons for it, and specifically point out and refer the party to any previous device which, in his view, anticipates the invention. These grounds the applicant may controvert, and have a second examination and a second decision. If still rejected, he may appeal to the board of examiners-in-chief, and have their investigation and decision upon his case. From the examiners-in-chief he may appeal to the Commissioner in person, and from the Commissioner to one of the judges of the supreme court of the District of Columbia.
An examiner's action receives no such scrutiny when he allows a patent. If he be pressed for time, or be indifferent as to his duties, he may put an end to his labors by a simple indorsement. If he lacks capacity, there will then be no exposure of his ignorance or of the unsoundness of his views. It may have happened that in some instances the allowance of patents has served to cloak incapacity and indifference to duty.
I have endeavored to provide some means for reviewing briefly favorable decisions before patents were issued upon them, but found that the force in the office was inadequate to such work in addition to the performance of other indispensable duties. The only reliance we have to guard against the issue of improper patents is upon the ability and integrity of examiners and their assistants.
3d. The great increase of the business of the office has not been accompanied with a corresponding increase of the examining corps. Examiners, in some cases, have had thrown upon them an amount of labor they could not perform well; and from the necessity of the case, patents have been hurriedly allowed without the full investigation they should have received. Formerly thirty or forty cases per month were deemed to be as much as an examiner could thoroughly investigate and decide. Now it is not unusual for the same examiner, with two or three assistants, to dispose of as many as two hundred cases in the same time. In one room during the past year more applications have been decided than by the whole office in 1855, or in any previous year.
The granting of improper and illegal patents defeats every object and purpose of patent laws. it serves to mislead and deceive the public, and to subject them to the annoyance of unjust and invalid claims. It throws distrust and discredit upon patented property, and injures the salable value of meritorious inventions. Did the practice of the office fully accord with the intent of the law, and its investigations command the entire confidence of the community, so that business operations and the investment of capital could with safety be founded upon them, it would do more to enhance the rewards which the laws contemplate for valuable improvements than any other measure that could be devised.
To improve the qualifications of examiners and obtain a high order of ability in the examining corps, has been deemed by me an object of first importance -- one, indeed, upon which the success of the office greatly depended.
A committee of three gentlemen, selected for their ability and fitness for the purpose, was appointed to examine into the qualifications of such of the employees as had received their appointments without the examinations required by law. The duty has been, so far, faithfully and judiciously performed, and several changes in the office have resulted therefrom.
Great care has been exercised in supplying vacancies. The positions of examiners' clerks and assistants have been regarded as the schools of the office, in which to qualify gentlemen of ability and culture for higher places; and the qualities sought for in appointees to those positions have been such as, in due time, will make them able and well-instructed examiners.
Questions as to the patentability of inventions become more difficult with the increase in the number of previous devices. An examiner must familiarize himself with all the inventions that have been made in his class -- not only in this country, but in Europe. Their great number and complexity have rendered the study of them a profession to be acquired by years of labor. An examiner's decisions involve nice questions of law, of science, and of mechanics. The more recondite principles upon which depend the practical success of processes and machinery, must be familiar to him. Large amounts of property often depend directly or indirectly upon his action. The ability and acquirements necessary to the proper discharge of his duties must be of a high order -- scarcely less than those we expect in a judge of the higher courts of law.
I have been strongly impressed with the belief that the salaries now paid these gentlemen are inadequate to procure and retain the best services. They were prescribed in 1848. At that time they would obtain of all the necessaries and conveniences of life more than double of what the same money will purchase now. For all practical purposes it is the same as if those salaries had been reduced one-half. As a consequence gentlemen who have become experienced and expert in the performance of their duties resign their places for more lucrative employments. Within the short time that I have been connected with the office, several whose services were invaluable have resigned, and it is apprehended that others will soon follow their example. I think I know the wishes of inventors well enough to say that, if the sums they now pay into the Patent Office are insufficient, they would gladly increase them to secure prompt and correct action upon their cases.
The reduction in the value of the currency has also operated with hardship upon other employees of the office. So long as the funds of the office admit it without tax upon the country, it is believed that their salaries should be made to approximate what they were before 1861.
The act of Congress relative to the Patent Office passed in July, 1836, provided for a machinist at a salary of $1,200 per year. For several years thereafter this was construed to mean a real mechanic to repair and keep in order the models deposited in the office. Afterwards it came to imply a clerk to take charge of the model room. For many years past there have been few or no repairs of breakages or other injuries to models, and large numbers of them are now more or less damaged; some have been totally destroyed. To put them in proper order will require the labor of two men for several years.
Injuries should be repaired at the time they are done, and the persons causing them held accountable therefor. To do such work, and keep in repair furniture and other articles used in the office, would occupy two men continuously.
Certified copies of models are frequently ordered to be used in courts and for other purposes. To supply them the models are sent to some of the machine shops in the city. Questions involving large interests sometimes depend upon features shown in the models. They lose their force as testimony when suffered to go beyond the supervision of the office. Suspicions of changes have, in some instances, been strongly entertained.
It is believed that the interests of the office will be promoted by establishing within it a machine shop and employing competent persons to do the work I have indicated.
Notwithstanding the ample room for models in the Patent Office, the cases to hold them are now filled, and some of them crowded. More provision for them will have to be immediately made. By narrowing a little the present cases, an additional one may be placed between them and still leave sufficient space for passages. Another shelf may be added and some of the cases lengthened. By these means their present capacity may be more than doubled, and that will meet the wants of the office for many years to come. The time will eventually arrive when the models of those machines that have proved useless will have to be selected out and discarded.
It is recommended to employ a few men in the office to alter these cases and make new ones as fast as the wants of the office shall require and its funds permit.
The subject of copying the drawings of patented devices is one of much importance to the office. There are now about 85,000 of them, and they increase at the rate of 14,000 per year. There are also about 30,000 belonging to rejected applications. They are kept in drawers in what is called the draughtsman's room. There the examiners and their assistants resort to make their investigations. By long experience in examining drawings, they acquire the habit of readily detecting in them any device that may anticipate an invention. Those that are deemed pertinent to the subject of inquiry are taken to the examiner's rooms and submitted to the inspection of the parties interested. On appeals they are used in the room of the examiners-in-chief, in the Commissioner's room, and by the judges of the supreme court of the District. For the purpose of being copied in the annual report, and for other purposes, they are also taken from the draughtsman's room Sometimes two or three thousand are absent from their places, and this has led to errors much to be lamented on the part of examiners.
Were all the drawings which each examiner has to consult bound in volumes, and placed in his room, convenient for him to study and refer to without leaving his desk, it is estimated that he could dispatch twice as much business as he now does, and with greater accuracy and freedom from mistake.
The great number of examiners and their assistants who have to resort to the draughtsman's room for investigations, and the liability of drawings getting misplaced by accident or by design, have rendered it imperatively necessary to the proper dispatch of business to exclude the public from that room. Patent agents and attorneys are thus deprived of their most ready means of investigating the novelty of inventions, and properly preparing specifications for patents. A convenient room for them, provided with copies of drawings, specifications, and other works of reference, would be a great convenience to the public and promote the interests of the office.
Some of the drawings by long use have been much worn, and parts of them obliterated. Unless copied in time they will be lost.
Twenty copies of each specification are now printed. Were there copies of drawings to accompany them, they could be furnished to public libraries, where investigations could be made without the necessity of resorting to Washington.
The Patent Office makes exchanges of its publications with several foreign governments. From Great Britain we receive full copies of their specifications and drawings. In our library we can investigate an English invention as well as can be done in the Patent Office of Great Britain. The volumes are handsomely bound and now fill a large room in the library. For them we make but the poor return of a copy of our annual report.
The copies of drawings ordered and paid for by the public now number about seven hundred per month, and the expense to the office of making them is about $1,400 per month. A reduction of price would probably much increase the number.
Several plans have been proposed for making these copies. Were there as many as fifty of each drawing wanted, the new art of photo-lithography would afford by far the best and cheapest means. It makes a facsimile of line drawings, of any size desired, and when once the stone is prepared copies may be taken with little expense. Specimens have been furnished the office which show the wonderful perfection to which this important art has attained. The only difficulty in the way lies in the great number of drawings to be copied. Without reference to those on hand, the current issues will amount to nearly fifty a day. At the low rate of ten cents apiece, without any charge for specifications, fifteen or twenty thousand per year would cost more than many libraries could well expend for them; and the fifty or sixty large volumes annually which they would make soon require more room than many libraries would have to spare.
For a few copies, enough for the use of the Patent Office, ordinary photography, or some of the late processes, would afford a cheaper means of supplying them.
A photographic establishment in the Patent Office, adapted to copying drawings of large size, would supply the orders for them much more cheaply and accurately than by the method of tracing heretofore pursued.
The receipts of the Patent Office from July last to the 1st of January have exceeded its expenditures by about $53,000. It is confidently expected that for the year to come the excess will not be less than $100,000. By strict economy and system in the management of the office, it is believed that salaries may be raised, necessary changes and improvements made, and every needful expenditure to raise the office up to its highest state of efficiency and usefulness incurred, without any charge or tax upon the public.
The large and growing business of the Patent Office has thrown more labor on the Commissioner than any one person can perform. As some relief, it is recommended that appeals from the board of examiners-in-chief be made directly to the chief justice of the supreme court of the District of Columbia.
The act of Congress relating to the Patent Office, passed March 2, 1861, I have regarded as abolishing all fees on appeals from the Commissioner; and, since examining the subject, I have not felt myself authorized to receive or to pay over to the judges of the supreme court of the District the moneys they have been accustomed to receive for the hearing of such appeals. A different view of the act has been taken by one at least of the judges. It is important that the question should be settled; and it is respectfully submitted that it will be more in accordance with the general practice of the country, and better suited to the dignity of the court, to increase the salary of the judge performing the duties than to make his compensation dependent upon the business that comes before him.
The business of the Patent Office has outgrown the several acts creating it. It is difficult to find authority for the employment of several of its important and indispensable officers. The gentleman who superintends the preparation of abstracts and drawings for the annual report was appointed as an examiner. The Commissioner's assistant has the grade and compensation of a first assistant examiner. The gentleman who purchases the supplies of the office and upon whom its expenditures greatly depend is but a temporary clerk. More than one-half of the employees of the office are temporary clerks -- an office intended by statute for copyist merely. A revision of the several acts, with proper amendments, would conduce much to the interests of the office and the convenience of the public.
I have deemed it advisable to make several changes in the practice of the office with a view of simplifying its proceedings and producing more accuracy and promptness in its business. As was to be expected, some inconvenience was at first felt; but experience has justified the changes, and with few exceptions they are now universally approved and commended. System and accountability has been introduced in reference to the expenditures of the office. The mode of receiving and accounting for moneys paid into the office has been entirely changed, and such checks provided as will, it is hoped, prevent mistakes and errors. In reference to applications for patents, the principle adopted is to aid and assist the applicant in obtaining what property belongs to him rather than to obstruct or delay him. The objects of our patent laws will, it is believed, be best attained by securing to each inventor, with as little expense and trouble as possible, the full benefits of his invention so far as he may be entitled to them.
Respectfully submitted:
Elisha Foote
Commissioner
Hon. Schuyler Colfax
Speaker of the House of Representatives