Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PATENTS, AND THE PATENT SYSTEM.

III.38.1

PATENTS, AND THE PATENT SYSTEM. The patent system has assumed during the nineteenth century an important office in the economy of modern industrial communities. Its development is closely interwoven with the phenomenal material progress and the immense extension of applied science which distinguish that period. Especially has this system been identified with the extraordinary development of the physical resources of the United States. The patent laws have been extended and improved to meet or anticipate the wants of the growing nation, and now, in its more modern form, the patent system may almost be said to be a peculiarly American institution. It is estimated that at present more than two-fifths of the world's important inventions originate in the United States. The records of our patent office are sought for and studied by the inventors and the scientists of every nation, and the wisdom of our advanced patent policy is almost universally admitted. Sir William Thomson said, in 1876: "If Europe does not amend its patent laws * * America will speedily become the nursery of important inventions for the world." No feature of our federal system has been proven of greater economic importance than the patent system. It will be treated, as fully as the limits of this article will permit, under the following heads: I. History of the System in England and America; II. The Existing American Patent Law, and the Procedure under it; III. The General Policy of a System of Patent Laws; IV. Changes in the Existing Law which would be desirable; V. Foreign Patent Laws.

III.38.2

—1. HISTORY. 1. In England. The origin of the patent system has been remotely traced to the guild monopolies which were a dominant feature of the urban industries of mediæval Europe. In its modern aspect and theory, however, the system bears no resemblance to the exclusive and grasping trades customs which brought the guilds into reproach; and it is generally conceded that the existing practice of letters patent for inventions is distinctively English in its origin. The form of the grant of a patent of invention can be directly traced to the exercise of the ancient prerogative of the English crown in its grants of exclusive privileges. The arbitrary and indiscriminate exercise of this prerogative resulted in the oppressive and galling monopolies which were abolished in the constitutional struggles of the seventeenth century. The grant of monopolies for inventions, on the other hand, seems always to have been regarded as just and constitutional. These were excepted from the sweeping prohibitions of the great statute of monopolies, enacted in 1624; and upon the provisos of that act there has been reared the modern English patent system, which in its essential features has been extended into nearly every civilized state.

III.38.3

—The earliest recorded exercise of the prerogative of the English crown, in a manner analogous to the grant of a patent, was the grant by Edward III. to two aldermen of a patent of privilege that they and their assigns should have the sole making of the philosopher's stone. Privileges of this nature, although rare at this early period, seem not to have been considered anomalous, for it is stated in a case reported in the Year Book, part iv., 40, Edw. III., fol. 17, 18, that arts and sciences which are for the public good are greatly favored in the law, and the king, as chief guardian of the common weal, has power and authority by his prerogative to grant many privileges, although prima facie they appear to be clearly against common right. On the other hand, the early popular and judicial disapproval of mere monopolies is shown by the fact, that about the end of the reign of Edward III., John Peechie, of London, was severely punished for procuring a license under the great seal for the exclusive sale of sweet wines in London. (3 Inst., 181.) Two centuries later, grants of patents, as well as of mere monopolies, had become less unusual. The reports of cases decided in the reign of Elizabeth contain dicta from which it appears, that, by the beginning of the seventeenth century, the English lawyers and judges had attained to something approaching the modern conception of patents. In the ninth year of Elizabeth a patent was granted to a Mr. Hastinges of the sole trade for several years of making frisadoes, in consideration that he had brought the method of making them from Amsterdam. This patent was considered valid until it was shown that some clothiers had, before its date, made baize of a similar material. (Noy Rep., 182.) In another case decided in this reign, a patent having been granted for the sole and only use of a sieve, or instrument for melting lead, it was said in the court of exchequer chamber, that the question was, whether it was newly invented by the grantee, whereby he might have the privilege of exclusive power over it, or else used before, in which case they were of opinion that he should not have the sole use of it. (Noy Rep., 183.) But the strongest of these early cases is Darcy vs. Allein, decided 44 Elizabeth, which contains the following: "Where any man by his own charge or industry, or by his own wit or invention, brings any new trade into the realm, or any engine tending to the furtherance of a trade, that never was used before; and that for the good of the realm; in such cases the king may grant to him a monopoly patent for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring, by his invention, to the commonwealth; otherwise not."

III.38.4

—These cases contain the common law germs of our existing systems of patent law. In the next reign was passed (1624) the statute of monopolies, which seems to be the first statutory recognition of patents for inventions, as it is also the final parliamentary denunciation of mere monopolies. The proviso of this statute, which is still the foundation of English patent law, is as follows: "Provided also, and be it enacted, that any declaration before mentioned shall not extend to any letters patent and grants of privileges for the term of fourteen years or under, hereafter to be made, of the sole working and making of any manner of new manufacture within the realm, to the true and first inventor or inventors of such manufacture, which others at the time of making such letters patent shall not use, so as also they be not contrary to law, or hurtful of trade, or generally inconvenient." This statute is regarded as merely declaratory of the common law, and the following essentials of a valid patent are enumerated by Sir Edward Coke in his "Institutes": "First, it must be for the term of fourteen years or under. Secondly, it must be granted to the first and true inventor. Thirdly, it must be of such manufactures, which any other at the making of such letters patents did not use; for albeit it were newly invented, yet if any other did use it at the making of the letters patents, or grant of the priviledge, it is declared and enacted to be void by this act. Fourthly, the priviledge must not be contrary to law: such a priviledge as is consonant to law, must be substantially and essentially newly invented; but if the substance was in esse before, and a new addition thereunto, though that addition make the former more profitable, yet is it not a new manufacture in law; and so it was resolved in the exchequer chamber, Pasch, 15 Eliz., in Bircot's case for a priviledge concerning the preparing and melting, etc., of lead ore; for there it was said, that that was to put but a new button to an old coat; and it is much easier to adde then to invent. And there it was also resolved, that if the new manufacture be substantially invented according to law, yet no old manufacture in use can be prohibited. Fifthly, nor mischievous to the state by raising of prices of commodities at home. In every such new manufacture that deserves a priviledge, there must be urgens necessitas, and evidens utilitas. Sixthly, nor to the hurt of trade. This is very material and evident. Seventhly, nor generally inconvenient. There was a new invention found out heretofore that bonnets and caps might be thickened in a filling mill, by which means more might be thickened and filled in one day then by the labours of fourscore men, who got their livings by it. It was ordained that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill, for it was holden inconvenient to turn so many labouring men to idlenesse. If any of these seven qualities fail, the priviledge is declared and enacted to be void by this act, * * and yet this act maketh them no better then they should have been, if this act had never been made, but only except and exempt them out of the purvieu and penalty of this law." (Coke, 3 Inst., 184.)

III.38.5

—In spite of its crude economic notions, this commentary is an interesting and instructive epitome of the early English patent law. It throws light upon the origin of not a few of the legal doctrines which are the foundation of the patent laws of more modern times. Moreover it may be regarded as embodying nearly all of what continued to be the learning in this branch of jurisprudence for more than a century and a half after Coke's time. The system continued in a comparatively rudimentary condition until near the end of the last century. One or two incidents in its history should, however, be noticed. In 1639 a proclamation was issued, abolishing "all patents for new inventions not put in practice from the date of their respective grants." A still more important change was effected during Queen Anne's reign. Prior to this time the only recorded description of the invention or discovery protected by patent, was contained in a few words, giving merely the name of the process or the purpose of the invention. But about this time the practice was introduced, appearing first in Hill's patent granted in 1713, of requiring a patentee to cause a specification or complete description of his invention "to be inrolled in Her Majestie's High Court of Chancery" within a certain time, generally two or three months, of the date of the patent. This practice ultimately became general; and the theory then arose that the grant of a patent constituted a sort of contract between the patentee and the state, whereby the patentee was protected in the exclusive practice of his invention in consideration of his furnishing in the specification a complete description of his invention for the public benefit after the expiration of his patent. The specifications of some of the earlier patents throw a curious light upon the economic notions of the people. Weisenthal's specification (1755) was for "Working Fine Thread in Needlework, after the Manner of Dresden Needlework, and for erecting a Manufacture of that Sort in this Kingdom so as to be of Public Utility, and enable Poor Girls of Eight Years Old to maintain themselves without being burthensome to the Parish to which they belong." Other patents were granted for the few crude scientific discoveries and inventions of the time. No material progress was made, however, in the further development of the patent system until, at the end of the last century, a series of important discoveries was made which heralded the beginning of a new era in the physical sciences. These inventions were patented, and the patents became the subjects of contests which ended in a series of adjudications, beginning with Arkwright's case in 1785, in the course of which there were discussed and settled many of the fundamental principles of patent law. The inventions of Watt, and Hargreave, and Crompton, and Cartwright, soon directed attention upon the patent laws. Stimulated by the example of these men and by the hope of reward, men began to devote their energies to devising improvements upon the crude methods then employed in the industrial arts. The number of inventions rapidly increased; and while in 1750 the number of English patents granted was only seven, in 1800, ninety-six were issued; in 1825, two hundred and fifty; and the British patent office now issues annually between three and four thousand patents. The last steps in the development of the English system were the passage of the act 5 and 6 Wm. IV., c. 83, in 1835, and the patent law amendment act in 1852, which brought the system into its present condition; and finally, during the present year (1883), there has been passed an "Act to amend and consolidate the law relating to patents for inventions, registration of designs and trademarks.' This act makes certain changes in the present law which are to go into effect Jan. 1, 1884.

III.38.6

—2. In America. A few of the earlier British patents, as Cumberland's patent (1720), were granted for "Our said Kingdom of Great Britain, called England, our Dominion of Wales, and Town of Berwick-upon-Tweed; our Kingdom of Ireland, and our Colonies and Plantacions in America." Letters patent for inventions appear also to have been granted by the different colonies before the revolution. In 1641, Samuel Winslow, of Massachusetts, obtained from the general court of that colony a patent for his process of making salt; and in 1656 a son of Gov. Winthrop obtained a patent for another salt making process. Patents were similarly granted in Connecticut during the colonial period; but no organized patent system existed here until after the establishment of the federal government. The basis of the American patent system is the clause in the United States constitution which confers upon congress power "To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Patents thus became the subject of federal legislation, and in pursuance of the power so delegated, congress has passed a series of patent laws, commencing with the act of 1790. Under this act letters patent were granted upon "any useful art, manufacture, engine, machine or device, or any improvement therein, not before known or used," for "any term not exceeding fourteen years." The application for a patent was made to the secretary of war, the secretary of state and the attorney general, and it required the concurrent action of two of those officials to issue the patent. The specification or description of the invention was certified by the attorney general, and the patent on its issue was sealed with the great seal and signed by the president. No distinction was made in this act between foreigners and citizens, and there was no examination of the novelty or patentability of inventions. In 1793 a second act was passed superseding the former one, and making changes in the system. Patents were issued only to citizens of the United States, and applicants were required, before United States patents could issue to them, to surrender any patents that might have been granted to them by the different states before the federal government was established. This statute also provided that the application should be made to the secretary of state, and that interferences between applications should be decided by a board of three arbitrators. A government fee of $30 was established, and a penalty of triple damages imposed on infringers. Supplemental acts were passed in 1794 and 1800, the latter of which extended patent privileges to aliens who at the time of making application had been for two years resident in the United States, and required all applications made pursuant to that act to be accompanied by an oath to the effect that, to the best of the applicant's knowledge and belief, the invention "had not been known or used in this or any foreign country." A few years later the constitutional question arose whether a state still had power to grant patents, notwithstanding the provision of the constitution giving power of legislation on patents to congress. In 1798 an act had been passed by the New York legislature granting to Robert R. Livingston "the sole and exclusive right and privilege of constructing, making, using, employing and navigating all and every species or kinds of boats or watercraft, which might be urged or impelled through the water, by the force of fire or steam, in all creeks, rivers, bays and waters whatsoever, within the territory and jurisdiction of this state," for the term of twenty years from the passage of the act, provided that he should, within twelve months, construct a boat of at least twenty tons capacity to be propelled by steam, the mean progress of which, against the current or tide of the Hudson river, should be not less than four miles an hour. Livingston having failed to accomplish this, the same provisions were re-enacted in 1803, and again in 1808, securing like privileges to Livingston and Robert Fulton. Steam navigation having now become an accomplished fact through the efforts of these men, others undertook, without license from them, to use the same motive power in navigating the Hudson. Livingston and Fulton then applied to the state courts for an injunction, which was at first denied on the ground that the act of the New York legislature was contrary to the clause of the United States constitution giving congress power to legislate upon letters patent. But upon appeal, Thompson and Kent, JJ., held that the act was constitutional, on the ground that federal jurisdiction over patents was not exclusive, and the injunction was granted (Livingston vs. Van Ingen, 9 Johns, 506.) Similar privileges were then granted in Massachusetts, New Hampshire, Pennsylvania and Tennessee, to citizens of those States. The question of the constitutionality of this legislation was subsequently raised in the United States supreme court, in Gibbons vs. Ogden, 9 Wheat., 1. The precise point was not decided, however, the New York act being held to be unconstitutional, because in contravention of the laws of the United States regulating commerce. Since that time, however, notwithstanding the eminent dissenting authority of Chancellor Kent and Judge Tucker, the opinion has prevailed that federal jurisdiction over patents is exclusive, and the question must now be regarded as so settled.

III.38.7

—In 1819 a law was enacted by congress, giving the United States circuit courts original jurisdiction of all actions arising under the patent or copyright laws of the United States. The first provision for the "reissue" of defective patents was made in the act of 1832, which also provided for the annual publication of the lists of expired patents, and established a system of renewing or extending patents about to expire upon application to congress. Another statute, passed in 1832, extended patent privileges still further by permitting every resident alien who had duly made a preliminary declaration of his intention to become a citizen, to obtain patents on condition of introducing the inventions into public use in the United States within a year of the date of the patents.

III.38.8

—Such was the earlier legislation of congress upon patents; and although many important inventions and discoveries were protected under these laws, the patent system as a whole remained as yet in a comparatively undeveloped state. It is stated that from 1790 till 1803 the whole business of issuing patents was practically done by one of the clerks in the department of state. In 1803 Dr. Thornton was appointed by Jefferson superintendent of this branch, and held the office until 1827. The whole number of patents issued from 1790 to 1836, a period of forty-six years, was only 10,020. The patent office now issues more than that number every year. During this period, however, the elementary principles of law governing patent rights were settled in the courts, and the foundation was laid in the decisions of Marshall and Story for the subsequent development of that branch of jurisprudence.

III.38.9

—The year 1836 marks an era in the development of the American system. In that year an act was passed which superseded the earlier legislation, and in an elaborate series of provisions, brought the patent system into something like its present condition The patent office was established as a branch of the department of state, and a staff of officials created, with the commissioner of patents at the head. The most important feature of the law was the provision requiring a preliminary examination to be made into the novelty and patentability of each invention before issuing the patent. This was a radical innovation, but it has proved a beneficent one. This law also made provision for the decision of interfering applications, and enabled aliens, after a year's residence in the United States, and under the conditions of the former act, to take out patents. The government fee for citizens and resident aliens was fixed at $30, while for subjects of Great Britain it was $500, and for other aliens $300. The reissue practice was confirmed and extended, and provision was made for the filing of caveats on incompleted inventions. The recovery in suits for infringement was restricted to the actual damage proven, except in cases where exemplary damages were proper, when triple damages were allowed. Exclusive jurisdiction in patent causes was conferred upon the United States circuit courts, and a board, consisting of the commissioner of patents, the secretary of state and the solicitor of the treasury, was constituted for the purpose of hearing and passing upon applications for the extension of patents. In certain cases extensions of seven years were allowed. Provision was also made in this law for the record of assignments of patents, for the establishment of the patent office library, and for the exhibition of the models which had accumulated since the beginning of the system. In that same year (1836), however, the burning of the patent office destroyed the interesting collection of models, as well as many valuable records, of the earlier patent system. A statute passed in the following year established a method of restoring or replacing the more important of the destroyed models and records, and also introduced the practice of filing disclaimers in cases where the original patents were void through inadvertently excessive claims. The act of 1839 provided that the existence of a foreign patent more than six months prior to application here, should not be a bar to obtaining a United States patent, except in cases where the invention had been introduced into common and public use in this country; but the United States patent was made to terminate fourteen years from the date of the foreign patent. A further provision of this act was that "no patent shall be held to be invalid by reason of purchase, sale or use prior to the application for a patent, except on proof of abandonment of such invention to the public, or that such purchase, sale or prior use has been for more than two years prior to such application for a patent." In 1842 provision was made for patenting designs for the term of seven years, and patented articles were required to be stamped "Patented," with the date of patenting, for the neglect of which a penalty was imposed. The system was further extended by the acts of 1848 and 1849, which latter act made the patent office a branch of the department of the interior. Minor changes were made in the succeeding years, and in 1861 an important act was passed empowering the commissioner to establish rules governing procedure in the patent office. The term of patents for inventions was extended to its present length of seventeen years, and the former laws discriminating between citizens and aliens were repealed. A uniform scale of fees was adopted, like that now in force; and in interference cases witnesses were compelled to attend and testify as before a court. A board of examiners in chief was constituted, intermediate between the examiners and the commissioner, to hear appeals from the former. Finally, by the act of 1870, the former legislation was revised and consolidated, and the system brought into its present condition. The provisions of this patent code are contained in some seventy sections, the effect of which will be considered under the statement of existing law. Meanwhile, the number of inventions has enormously increased. In 1837, 435 patents were issued; in 1860, 4,819; and in 1882, 18,467. These figures adequately represent the rate of the growth of the system and its present extent.

III.38.10

—II. EXISTING LAW AND PROCEDURE. Under the present act of congress "any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the duty required by law and other due proceedings had, obtain a patent therefor."

III.38.11

—1. Subject Matter. It will be observed that provision is made in the statute for patenting four classes of inventions or discoveries: arts, machines, manufactures, and compositions of matter.

III.38.12

—The statute term "art" is intended and construed to cover cases in which the essence of the invention consists in the mode, process or art of doing a thing or accomplishing a result, and not the particular machinery, apparatus or device employed. A mere abstract principle can not be the subject of a patent, nor is the function or abstract effect of a machine patentable. But the statutory expression covers and protects a comprehensive class of inventions which are combinations of arrangements and processes to work out new and useful results, and which are thus patentable irrespective of the particular forms of the instrumentalities used.

III.38.13

—Inventions included within the term "machine" are obviously those which consist of a particular mechanism or device, or a combination of mechanical devices or parts, as distinguished from a tool or instrument. To sustain a patent for a machine it is only necessary that the combination to produce certain effects be new, whether the separate devices or elements be new or old, provided that the combination is of such a nature that the inventive faculty was exercised in devising it; and, generally speaking, "a machine is rightfully the subject of a patent whenever a new or an old effect is produced by mechanism new in its combinations, arrangements or mode of operation." (Curtis' Law of Patents, 20.)

III.38.14

—The term "manufacture" is construed in the sense in which it is popularly used, to mean the product or fabric of a machine or of human art or industry. To be properly the subject of a patent as a manufacture, the product must itself be essentially new. Thus, an article in common use can not be patented as a new manufacture merely because it is fabricated by the use of new and improved machinery; nor is a product patentable under this head merely because a machine makes it more perfectly than it can be made without a machine.

III.38.15

—The term "composition of matter" includes "patent medicines" and all compounds or mixtures of substances, as articles of food, etc. The resultant article or "composition" must, of course, be new, to be the subject of a patent, but the question is not, whether the ingredients or components are new, but whether there is novelty in the combination, and the novelty may consist in combining, in new proportions, ingredients which have already been in extensive and common use for the purpose of producing a similar composition.

III.38.16

—Besides the foregoing classes of the subject matter of patentable inventions, the statute provides for patenting "improvements," and the larger number of patents are issued for improvements. It was early decided that a patent for the improvement of a machine is the same thing as a patent for an improved machine, but of course the patent can only be taken for the new combination. It should be noticed that the patent office does not undertake to determine whether the improvement will infringe an existing patent. But if the improvement is novel, the patent is issued and the question of infringement left to the courts. The test of the validity of a patent for an improvement of an existing machine, is to ascertain whether there has been actual and substantial change, or merely formal alteration requiring no invention. If no substantially new element has been added to the old machine, the patent can not be sustained; but if some really new feature has been introduced into the old mechanism, which causes it to operate differently or produces a new or better effect, then such addition will properly be the subject of a patent as an improvement. Two classes of questions therefore arise in passing upon the validity of a patent for an improvement of a machine. First, where the effects produced are the same, the inquiry is, whether the modus operandi of the improved machine is substantially the same as that of the old machine, or whether the difference in operation is sufficient to sustain a patent; second, where the effects produced by the improved and by the old machine are different, then the nature and quality of the effect will be the criterion of the validity of the patent. It should be added, that there is no distinction between an improvement on a patented machine and on one that is not patented.

III.38.17

—2. Qualities of Patentable Inventions. The essential qualities of a patentable invention are very broadly indicated in the statute. The terms employed in the act are "invented or discovered," "new and useful art, machine," etc., and the question, what constitutes a patentable invention, is therefore to be answered by referring to the adjudications of English and American courts, which constitute the common law of the patent system. It should be noted first, that "invented" and "discovered" are synonymous in the patent law; "novelty" and "utility," required by our statute, have always been held vitally essential qualities of patentable inventions; and the degree of novelty and utility—the "sufficiency of invention"—necessary to support a patent, has been determined by the courts in the numerous cases which have presented these questions for adjudication. The degree of absolute utility required in an invention is, however, slight. It is only necessary that the invention shall not be positively trivial, nor, on the other hand, noxious to public health or morals. The principal inquiry in patent law is therefore into the novelty of the invention, for the whole theory upon which the patent system rests, is that the patentee offers the world something new in consideration for his exclusive patent privilege. The novelty required by the American law is universal novelty, with the one exception that mere prior knowledge or use abroad will not defeat the rights of a native inventor, if the foreign invention has not been patented or described in any printed publication before the date of the American invention. The general principles governing the essential degree of novelty may be briefly summarized as follows: It is established in the early cases that a new use of an old thing—technically called a "double use"—is not patentable. Merely mechanical changes, or colorable variations, requiring no exercise of the inventive faculty; and, in general, alterations in the form or proportions of an existing device, can not be the subject of a patent. And while the invention itself, and not the mental process by which it was devised, is the real test of its patentability, it must still be observed that to support a patent the law requires it to appear that the invention is of such a nature as not to exclude the possibility of exercise of the inventive faculty in devising it. The terms "invented" and "discovered" mean that the subject of a patent must be a true invention or discovery, and not a mere mechanical improvement or substitution of a known "equivalent" involving mechanical skill or superior workmanship. But if the result, if the invention itself, is properly patentable, the law does not regard the mode of invention or discovery; and an accidental discovery or invention is, in the law, just as meritorious as one which is the result of laborious investigation and experiment. To satisfy the statute requirement of novelty, therefore, an invention must be substantially different from anything that has previously existed; and the criterion of the "sufficiency of invention" is the character of the invention itself, and not the degree of ingenuity or skill employed in devising it.

III.38.18

—3. Qualifications of Patentees. The existing law provides for the issue of the patent in every instance to "the original and first inventor." A radical difference between English and American law exists on this point. In England the first importer of an invention is treated as an inventor, and may obtain a patent; but under our system the patent issues only to the inventor. The only discrimination in our law in favor of citizens of the United States, is the provision that mere prior knowledge in a foreign country shall not debar a native inventor from obtaining a patent for an invention devised independently here, if at the time of making his application he really believes himself to be the first inventor. The foreign invention must have been patented or described in some printed publication prior to the date of invention in this country in order to deprive the native inventor of his patent.

III.38.19

—4. Designs. Section 4929 of the Revised Statutes provides that "any person who by his own industry, genius, efforts and expense has invented and produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton or other fabrics; any new and original impression, ornament, pattern, print or picture to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the fees prescribed, and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor." The term for which these patents are issued is either three and a half, seven or fourteen years, and the fees are, respectively, ten, fifteen and thirty dollars.

III.38.20

—5. Procedure in the Patent Office. Since 1836 the whole business of issuing patents has been conducted by the patent office at Washington. Applications for patents are made to the commissioner of patents in accordance with a prescribed form, which consists of a petition for the allowance of the patent, and an oath that the applicant believes himself to be the first inventor, and that he does not know or believe that the invention was ever before known or used. These forms accompany the specification or description of the invention, which is by far the most important part of the application. The statute provides that the specification shall describe the invention in such "full, clear, concise and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound and use the same." The object of this provision is to secure to the public the benefit of the invention after the expiration of the patent, which, as we have seen, is part of the compact between the patentee and the state. The specification concludes with the "claims," in which the inventor is required to "particularly point out and distinctly claim the part, improvement or combination which he claims as his invention or discovery." Drawings accompany the specification in all cases which admit of them, and the commissioner may require the applicant to furnish the patent office with a model or specimen, although these are now not often required.

III.38.21

—The application, on being filed in the office, is referred to the examiner or officer in charge of the department in which the invention is classed. The examiner teen proceeds to make an examination of the invention, and of the patent office records, to ascertain whether it possesses novelty and utility. An examination of the records of foreign patent bureaus and of scientific works is also necessary, to ascertain whether the invention has been anticipated abroad, or whether it has been described in any printed publication. If from any of these sources anything is found which shows the invention claimed, or any feature of it, to be wanting in novelty, the applicant is notified by the examiner, and a report is sent him rejecting the application, stating specifically in what features novelty is lacking, and giving references to such prior patents or records as anticipate the invention. The applicant thus has an opportunity to amend his application so as to make it conform to the state of the art, and to eliminate the features that are not new. If the objection raised by the examiner is deemed groundless, the applicant may attempt, by argument or explanation, to remove it. In case of adverse decision, an appeal will lie from the decision of the primary examiner to an intermediate board, consisting of three examiners-in-chief; and if the applicant is still dissatisfied, he can bring his case before the commissioner of patents. If no objection is raised by the primary examiner, or if all objection is removed by amendment or overcome by argument, the application is allowed. The fee upon filing an application is $15; and upon the issue of the patent, $20. The final fee is required to be paid within six months after the allowance of the patent, and the specification is then printed, and the patent issued for the term of seventeen years from the date of its issue.

III.38.22

—6. Reissue and Disclaimer. A further proceeding, of which the patent office has jurisdiction after the issue of the patent, is the "reissue" of patents which are defective on their first issue, "if the error has arisen by inadvertence, accident or mistake." Where the patent is invalid by reason of a defective or insufficient specification, it is surrendered and sent to the patent office with a corrected specification; and in a proper case, on payment of the duty, a new or reissued patent, in accordance with the amended specification, is granted for the unexpired term of the original patent. These reissues were formerly issued with great laxity. But since the decision of the supreme court in Miller vs. Brass Co., 104 U S., 350, the provisions of the statute have been observed, and the practice of repeatedly expanding patents by reissuing them is no longer possible. It should be added, that in cases where the inventor has inadvertently claimed in his original patent more than he is entitled to, the patent may be amended by filing a "disclaimer" of what is excessive, and the patent will then be valid for the residue.

III.38.23

—7. Interferences. Where an application is filed which "interferes" with a pending application, or with a patent granted within two years previous to the filing of the application, an "interference" is declared. The parties to the interference are then required to file statements giving briefly the dates of conception of the invention and of its completion, and the question of priority of invention is then tried by a somewhat cumbersome procedure. Evidence substantiating the allegations of the preliminary statement is taken on behalf of the respective parties, and the matter is then brought on for a hearing before the examiner of interferences. The patent is awarded to the party who successfully establishes priority of invention, and at the same time shows reasonable diligence in reducing the invention to practice.

III.38.24

—8. Careats. Protection is afforded to inventors who have not completed or perfected their inventions, by the practice of filing caveats in the patent office. The caveat is an instrument which recites that the inventor has conceived, but not yet perfected, his invention, and which sets forth in general terms the salient points and characteristics of the invention as far as completed. The caveator then prays protection until he shall have matured the invention. This instrument is filed in the secret archives of the patent office, and protects the caveator for a year, by entitling him to notice in case, within that time, any application is filed in the office which would interfere with the invention indicated in the caveat. In case such notice is given, he has three months' time in which to prepare and file a complete application for a patent. The caveat may be renewed for a year at a time, with the same effect.

III.38.25

—9. Assignments and Licenses. The transfer of a patent, or interest in a patent, is by assignment. The transfer may be either an assignment, 1, of the whole patent, 2, of an undivided interest in the patent, or 3, of an exclusive interest in the patent within any specified territory of the United States. The Revised Statutes require the assignment to be in writing, and provide that it "shall be void as against any subsequent purchaser or mortgagee for a valuable consideration without notice unless it is recorded in the patent office within three months from the date thereof." A license is a contract which confers upon the licensee the mere right to use or practice the invention, and is distinguished from an assignment in that it conveys no interest in the patent itself. This contract is not required to be recorded, nor need it be in writing, but may be oral or implied. Part owners of a patent are tenants in common, and are not bound to account to each other for receipts from licenses, and these latter may be granted by any of the co-owners without joining the others. An application for a patent pending in the patent office may be assigned in the same manner as a patent; and the patent will issue to the assignee. So also an agreement to assign a patent for an invention when issued will be effective, and specific performance of it will be enforced in equity. It has recently been held, however, that an assignment of an application, or an agreement to assign a patent for an invention when issued, must describe the application or invention with sufficient distinctness to enable the court to identify it.

III.38.26

—10. Patent Office Fees. The patent office fees, other than those already given, are as follows: On filing every caveat, $10; on filing a disclaimer, $10; on filing every application for a reissue, $30; on filing every application for a division of a reissue, $30; on filing every application for an extension, $30; on the grant of every extension, $50; on filing an appeal from a primary examiner to the examiners-in-chief, $10; on filing an appeal to the commissioner from the examiners-in-chief, $20; for certified copies of patents or other instruments, except copies of printed patents sold by the office, for every 100 words, 10 cents; for certified copies of printed patents sold by the office, 10 cents for every 100 words, less the price actually paid for such copies without certification; for certified copies of drawings, the reasonable cost of making them; for recording an assignment of 300 words or less, $1; for recording an assignment of more than 300 and not more than 1,000 words, $2; for recording every assignment of more than 1,000 words, $3; for uncertified copies of the specifications and accompanying drawings of all patents which are in print, single copies 25 cents, and for twenty copies or more, whether of one or several patents, per copy, 10 cents; for uncertified copies of the specifications and drawings of patents not in print, the reasonable cost of making the same; for copies of matter in any foreign language, per 100 words, 20 cents; for translations, per 100 words, 50 cents; for assistance to attorneys in examination of records, one hour or less, 50 cents; each additional hour, 50 cents; for assistance to attorneys in examination of patents and other works in the scientific library, one hour or less, $1, and for each additional hour, $1.

III.38.27

—11. Procedure in the Courts. By the Revised Statutes the United States circuit courts have original jurisdiction "of all actions, suits, controversies and cases arising under the patent laws of the United States." All proceedings, therefore, for the protection or enforcement of patent rights, except actions for the breach of contract relating to patents, which are cognizable in the state courts, are brought in the circuit courts or in a district court having circuit court jurisdiction. Under the act of 1870 the remedy of the patentee, where his patent is infringed, is either by action at law, in which the actual damage suffered from the infringement will be recovered, or by suit in equity, in which the complainant may obtain a perpetual injunction restraining further infringement if he establishes his case, and also recover the damages sustained from the infringement, as well as the profits realized by the defendant from the use of the infringement. Where the complainant, at the commencement of the suit, is able to present a strong prima facie case, he may also, upon notice, obtain a preliminary injunction restraining infringement pendente lite. The equitable remedy is usually adopted as being the most efficacious; but some of the archaic common law procedure is retained in the circuit courts, and the suits are as protracted and slow as the old English chancery litigation. Suits for infringement are brought in the name of the owners of the patent right for the district where the infringement is committed. The evidence is taken on behalf of the respective parties, supporting the allegations of the bill and answer in respect to the naked question of infringement, or the validity of the complainant's patent, where that is in issue. The cause is then brought on for a hearing before a single judge, who passes upon the issues raised by the pleadings. If his decision sustains the complainant's patent, and holds that it has been infringed by the defendant, an interlocutory decree is entered to that effect, and the cause is sent before a master to take an account of the defendant's profits from the use of the infringement. Upon the master's report the cause is again brought before the circuit judge, and the final decree settled, determining the amount that the complainant is entitled to recover. If the court decides adversely to the complainant, a decree is entered dismissing the bill. From the judgments and final decrees of the circuit court in these causes, a writ of error or appeal will lie to the supreme court of the United States.

III.38.28

—12. Infringements. The question, what constitutes infringement, is one of the most difficult questions presented to a court for adjudication; and the legal principles which govern its determination can only be roughly indicated in this article. A patent confers upon the patentee the exclusive right of making, using, and vending to others to be used, the invention protected by patent. The patent is infringed, therefore, whenever the invention so protected is appropriated in either of those ways without the license of the patentee, or whenever a colorable imitation of it, not involving new invention, is so employed. A patent for a machine is infringed whenever the same means or devices are employed, substantially as in the patented machine, to produce the same result; and it has been held, per Taney, C. J., in Browne vs. Duchesne (19 How., 183), that the mere making of a patented machine is an infringement.

III.38.29

—It is evident that a patent for an art is infringed when that art is used or practiced by another without license of the patentee, and that it is an infringement of a patent for a manufacture, or composition of matter, to either make, use or sell the article claimed in the patent. But the whole difficulty in questions of infringement consists in determining "what degree of resemblance constitutes the identity which the patent law designates as an infringement, and what kind and what degree of difference will relieve from this charge." It is well settled that the substitution of known "equivalents" for the means described in the patent is not sufficient variation to avoid infringement; and "by equivalents in machinery is usually meant the substitution of merely one mechanical power for another, or one obvious and customary mode for another, of effecting a like result." (Smith vs Downing, 1 Fish Pat. Cases, 87.) But the difficulty of applying these principles presents itself anew in every case, and it can best be solved by referring to the great mass of precedents in English and American law. It will be sufficient, therefore, to add, that substantial identity is the test of infringement, and that substantial identity exists wherever the difference between the patented invention and the alleged infringement is mere colorable alteration, and does not involve invention. In the words of Nelson, J., in Blanchard vs. Beers (2 Blatch., 418), "There must be mind and inventive genius involved in it (the alteration), and not the mere skill of the workman." But it should be observed, finally, that even if the variation involve sufficient invention to entitle its deviser to a patent, it will not necessarily relieve him from infringement if he still employs substantially the device covered by a prior patent.

III.38.30

—13. Defenses. In addition to joining issue on the question of infringement, the statute provides that the defendant may plead the general issue; and, upon notice, may prove on the trial the following matters: first, fraudulently defective or excessive specification of complainant's patent; second, that complainant's patent was surreptitiously obtained; third, earlier patent or publication of the invention claimed; fourth, that the patentee was not the first inventor of any substantial feature claimed; fifth, abandonment or public use two years prior to the patentee's application. In an action at law, the dates and circumstances must be appended to the notice; and in an equity suit, any of the above matters may be pleaded, and like notice may be given in the answer. The defendant is thus enabled to call in question the validity of the complainant's patent; and if he succeeds in impeaching it, the question of infringement is at an end.

III.38.31

—III. THE GENERAL POLICY OF A PATENT SYSTEM. Associated in their origin with the oppressions of the Tudors and the Stuarts, patents for inventions have since that time not infrequently been denounced as monopolies. In the earlier cases in which patents were brought before English tribunals for adjudication, the judges were reluctant to recognize the rights of patentees. Lord Kenyon is reported to have said, in the great case of Hornblower vs. Boulton (8 T. R., 99), "I confess I am not one of those who greatly favor patents," and Lord Erskine stated that "the ideas of the learned judges had been very different as to the advantages to the public since the statute giving those monopolies." Nor has the criticism of the patent system been confined to expressions of judicial disfavor of a century ago. It is still asserted by a certain school of economists that a patent is a true monopoly which robs the public, and that all systems of patent law are radically and essentially vicious. Within the last fifty years the system has been repeatedly assailed in the English parliament, and in this country the question of its abolition has been broached at Washington. In 1829, in 1851, in 1863, and again in 1871, the policy of the British system was inquired into by committees from the upper and lower houses of parliament in consequence of the violent attacks made upon the patent laws. At almost every session of the house of commons for the past few years, a bill has been introduced having for its object the unconditional abolition of the present patent system; and the supporters of this measure, led by Sir Roundell Palmer, constituted a faction known as "Abolitionists." Recently the farmers of some of our western states, in consequence of the extortions of the owners of certain important patents, notably the "wire fence" and "driven well" patents, have demanded the repeal of the American patent laws. M. Chevalier, the French economist, writing in 1878, denounced in toto all systems of patent law. In 1868, as secretary of the confederation, Bismarck recommended to the North German parliament the abolition of patents, and in Holland a law was enacted in 1869, discontinuing the system in that country from and after Jan. 1, 1870. From this résumé of the opposition to patents it will be seen that the question of the policy of patent laws is by no means settled. A discussion of that question involves an examination of the economic and legal principles upon which the system rests.

III.38.32

—The motive which originally inserted in the statute of monopolies the proviso from which later systems of patent law have been derived and developed, was, as its recital shows, to stimulate and encourage inventive genius in England, and thereby foster and develop the young industries of that country. There has since arisen the theory that an inventor has a property, or at least a quasi property, in his ideas, which it is both just and expedient to protect by patent laws. The claims of the patent system are thus rested upon the two-fold consideration of, first, a sense of justice to the inventor, and, second, a belief in the sound policy of stimulating inventive genius by holding out to an inventor a material recompense proportionate to his contribution to society.

III.38.33

—The soundness of these propositions is controverted by opponents of patent laws. It is urged that there is no right of property in the ideas of inventors which society is bound to recognize, and also that the evils and inconveniences of the patent system are not compensated for by its benefits. The first of these propositions is obviously theoretical. The assertion that there is a right of property in inventions is controverted by the assertion that there can be no property in thought, which is of the essence of all inventions, because it has not the attributes and qualities of material property. The former position is vigorously supported by John Stuart Mill and Herbert Spencer, while the latter is maintained by M. Chevalier and the British "abolitionists." Without pausing to decide this economic controversy, it may be remembered, first, that inventions are the product of most valuable and indirectly wealth-producing labor, and second, that the state can, as observed by Lord Brougham in Jefferys vs. Boosey, make inventions "a quasi property, or give the author the same kind of right and the same remedies which he would have if the produce of his labor could have been regarded as property." In this practical aspect of the question the theoretical inquiry becomes unimportant, since the legislature can and does endow inventors' rights with all the attributes of other property, just as it sometimes invests with such attributes its own franchises; and it is important to be added, this practice seems to be ethically justifiable. The whole question, therefore, resolves itself into one of expediency and policy.

III.38.34

—The most considerable objection urged against the policy of granting patents for inventions is, that they interfere with the principle of "freedom of industry" (la liberté du travail). This is the argument of M. Chevalier and the "abolitionists." It is by no means clear, however, as may be gathered from the following considerations, that the practical effect of patent laws is to interfere with freedom of industry in any degree whatever.

III.38.35

—Under a well administered code of patent laws it is obvious that nothing can be claimed and protected in a valid patent which is not new, which is not a true invention. The industrial world is not, therefore, deprived by patent of what it previously enjoyed, for by the hypothesis the invention is the discovery of some hitherto unknown agency or appliance. The fallacy of the assertion that freedom of industry is interfered with by patents lies in the assumption either that old devices are allowed to be covered by patent, or that new inventions would come into being in the absence of patent laws. But the first half of this assumption is negatived by the hypothesis that the invention is new, i.e., hitherto unknown. Passing, then, to the consideration of the proposition that new inventions protected by patent would be made without the stimulus of patent laws, we find that it is no less fallacious. A necessity, say the abolitionists, is itself a sufficient incentive to excite invention, and as soon as a want is felt, a hundred minds will be devoted to devising a means of filling it. But the history of industrial communities does not bear out this assertion. Not only is there a tendency among the classes actually engaged in manufacturing and agricultural pursuits to remain apathetically content in the use of already existing appliances, but there has even been evinced, and notably in England, a positive hostility on the part of operatives to the introduction of new, and especially of labor-saving inventions. A hundred years ago mobs destroyed the improved machinery of Arkwright and Hargreaves. Thirty years later, occurred the Luddite riots in consequence of the introduction of power looms. Competition will, of course, in time develop improvements; but the antagonism now existing between capital which most feels the spur of competition, and labor which possesses the skill to create the improvements, renders this agency ineffective to produce the best results. So long as the capitalist is to reap the entire benefit of an improvement, the inventor will be slow to devise it. There must be some way of appealing directly to inventive genius to obtain its best fruits. This was realized by Edward Bally, one of the Swiss commissioners to the Philadelphia centennial exposition. On his return to Switzerland, which has no patent system, he wrote: "We must introduce the patent system. All our production is more or less a simple copy. The inventor has no profit to expect from his invention, however useful it may be. It is evident that this absolute want of protection will never awaken in a people the spirit of invention * *." And yet the Swiss are reputed as ingenious as any other people.

III.38.36

—Still another consideration may be adduced to refute the claims of the "abolitionists," that freedom of industry is interfered with by patents. If the inventor keeps his invention in secrecy and allows his secret to die with him—which was the only protection an inventor had before patent laws became effective—it can not be said that the normal movement of industries is interfered with. In this case, however, he entirely deprives the world of the benefit of his discovery. But by taking out a patent he simply makes a contract with society, whereby his secret is surrendered in return for a certain fraction of the benefit conferred by it for a term of years. If the invention is valuable, the inventor's reward is proportionately rich; if it is of no importance, it can have no effect on industries. An inventor's patent excludes the industrial world from nothing it enjoyed before; it simply offers a novelty as a substitute for older methods. Undoubtedly, the system, because imperfectly administered, has had the effect, in many instances, of depriving the world by patent of old and well-known appliances; and then, as in England and France, the burden is thrown on the community of proving that the patent is robbing it of what it previously enjoyed. But obviously the cause of this is the imperfect administration of an imperfect code of laws. A patent for a true invention can never clog the wheels of an industry, since, if it be a true invention, it leaves the industry free to enjoy all the agencies and appliances known before the new invention was devised. If, however, this latter cheapens or improves an existing process, the inventor asks to share in the enhanced cheapness or improvement, which by the hypothesis his genius is the means of creating.

III.38.37

—Similar views have been expressed by so keen an observer as Mr. Herbert Spencer. "They fall into a serious error," he wrote in his "Social Statics," "who suppose that the exclusive right assumed by a discoverer is something taken from the public. He who in any way increases the powers of production, is seen by all, save a few insane Luddites, to be a general benefactor who gives rather than takes. The successful inventor makes a further conquest over nature. By him the laws of matter are rendered still more subservient to the wants of mankind. He economizes labor; helps to emancipate men from their slavery to the needs of the body; harnesses a new power to the car of human happiness. He can not, if he would, prevent society from largely participating in his good fortune. Before he can realize any benefit from his new process or apparatus, he must first confer a benefit on his fellow-men; must either offer them a better article at the price usually charged, or the same article at a less price. If he fails to do this, his invention is a dead letter; if he does it, he makes society a partner in the new mine of wealth he has opened. For all the exertion he has had in subjugating a previously unknown region of nature, he simply asks an extra proportion of the fruits. The rest of mankind unavoidably come in for the main advantage; will in a short time have the whole. Meanwhile, they can not without injustice disregard his claims."

III.38.38

—But the cause of patent laws does not require to be established in a negative, defensive manner. In the United States, at least, the beneficence of the system is so obvious, the claims of inventors are so meritorious, that argument is hardly necessary to make them apparent.

III.38.39

—Patents give support to a class of ingenious and talented men whose profession it is to devise improvements and make discoveries, and whose life and training render them especially qualified for such service. It is estimated that there are from five to six thousand professional inventors in the United States. But it is obvious that without a patent code it would hardly be possible to follow invention as a business. Experts might find employment with great manufacturers, but they could not feel the same personal incentive to make inventions which the patent system affords them. So that the first effect of patent laws is to keep these thousands of minds constantly engaged in solving the problems of science and mechanics.

III.38.40

—Patents, moreover, facilitate the introduction of inventions. They enable the inventor to give the capitalist something substantial upon which to embark his money; without which there would not be the same inducement to him to engage in the enterprise of introducing novelties if the results of his experiments and ventures could be at once appropriated by others.

III.38.41

—Patents give also to the inventor a reward proportioned to the value of the invention. The incentive is thus given to devise labor-saving and cheapening inventions. An inventor realizes that however ingenious his device, it can have no existence commercially unless it either cheapens or improves something for which there is a demand, or unless the invention itself creates and satisfies a new want. Bessemer's invention reduced the cost of cast steel from $200 per ton to about $55; and with all this reduction the royalty was only $10 per ton, or about 7 per cent. of the reduction. It has been estimated that inventions increase the value of human labor in this country 2 per cent, annually.

III.38.42

—These benefits will perhaps be still more obvious and impressive if we consider the practical effect of patent laws through inventions upon the industrial system of a community. The real beginning of the patent system was, as we have seen, coeval with the great scientific and inventive movement in the latter half of the eighteenth century. It is not claimed that patent laws originated this movement, but that they at least made it possible and accelerated it. A review of the history of the iron and cotton industries in Great Britain shows this clearly. In the year 1740 the total produce of iron in Great Britain was 17,350 tons. In that year Dudley's invention for using coal in smelting in lieu of timber began to be used, and in less than 50 years (1788) the annual production had increased to 68,300 tons. In 1788 Watt's steam engine was introduced for blowing furnaces, and for the year 1806, the production amounted to 258,206 tons. In 1830 Neilson's hot blast was adopted, and by 1839 the yearly produce of iron had reached 1,248,781 tons, and the annual production now averages more than 6,000,000 tons, of a value of more than £16,000,000. In less than a century and a half the production of iron has increased nearly a thousand fold, and it is the inventions of Dudley, Watt and Neilson which have at least made this increase possible.

III.38.43

—Quite as remarkable has been the effect of inventions upon the English cotton industry. At the middle of the eighteenth century the total annual imports of raw cotton into Great Britain were less than 3,000,000 pounds. In 1769 and 1770 were patented Arkwright's and Hargreaves' inventions for spinning, and by 1776 the annual imports of cotton wool amounted to nearly 7,000,000 pounds. In 1779 Crompton's spinning mule was invented, and in 1785 and 1787 Cartwright's loom patents were issued; by 1790 the yearly imports of cotton had reached 31,447,605 pounds. In 1880 the imports of cotton amounted to 1,628,664,576 pounds, and the British cotton factories now employ nearly half a million operatives. The amount of cotton manufactured in Great Britain has thus increased more than five hundred fold, and an industry has been created which gives employment to about one-seventieth of the total population.

III.38.44

—The growth of the iron and cotton industries may be regarded as typical of the general industrial progress of Great Britain during the last hundred years. More recent general advance is shown by the fact that the total exports of British produce have increased from £52,000,000 in 1848, to £223,060,446 in 1880; and in the same period the population has increased about 25 per cent.: from about 27,500,000 in 1850, to 34,505,000 in 1880. A comparison of the ratio of production to population at the former period with the similar ratio at the later one, will indicate the degree of increase in productive capacity. It is, therefore, confidently asserted that the most important agency in increasing the productive power of a nation is the invention and introduction of labor-saving devices, and that the invention of such devices alone renders such an increase possible, as is shown in a consideration of the above statistics of the iron and cotton industries.

III.38.45

—The history of these inventions, however, indicates that without the protection of patent laws they would not have been developed and introduced. In the case of the steam engine, for example, it was only after spending all his own means, after thirteen years of ceaseless experiment, and after obtaining from parliament the grant of a special patent for twenty-four years, that Watt succeeded in inducing Matthew Bolton to embark his capital in the development and introduction of the invention. It is estimated that £40,000 were expended by Watt and Bolton in developing this invention; and such was the hostility shown to its introduction that the patent had nearly expired before these men began to receive a return for their expenditure of time and money. A recent life of Watt states that the steam power of Great Britain is now equivalent to the power of 400,000,000 men—more than ten times the entire population and it is primarily Watt's invention and the countless devices of subsequent inventors which utilize the magnificent power he discovered, that have made England's industrial and commercial progress possible.

III.38.46

—The history of the steam engine is the history of nearly all great labor-saving discoveries. They have all originated in patent protected communities; and where the patent laws have not directly incited the inventor to make his discovery, they have still facilitated its introduction and development by enabling the inventor to enlist the aid of capital. The manner in which inventors are affected by patent laws is instructively shown by the following evidence of Sir Henry Bessemer before the committee of the house of commons in 1871: "My experience during the whole of this time (the years that he was experimenting) has shown me clearly that if I had had no patent law to fall back upon, I, as an engineer, could never have first spent two and a half years of my time and £4,000 in mere experiments, which if they had failed would have been an entire loss to me. Altogether I made an outlay of about £20,000, but of course I had a large stake to play for. I knew that steel was selling at £50 to £60 per ton, and I knew that if it could be made by my plan, it could with profit be sold at £20 per ton. But had it not been for the law, securing my right in my invention by a patent, I could never have hoped as a simple manufacturer to have recouped myself." Such has been the effect of the British patent system in two conspicuous instances, and such instances might be almost indefinitely multiplied.

III.38.47

—Turning now to the industrial history of the United States, the results are no less impressive. Perhaps no one industry has been more closely identified with the national life and growth of the country than cotton raising. It is stated in Smithers' History of Liverpool (p. 124), that in 1784 an American vessel arrived at Liverpool, having on board eight bags of cotton, which were seized by the custom house officers under an impression that cotton was not the produce of the United States. In 1798 Eli Whitney, of Westborough, Mass., invented and patented his saw gin for separating cotton from the seeds. Before this invention cotton could be cleansed only by hand, or with some rude hand mill. The utmost daily capacity of one of these mills was about sixty-five pounds, and by hand a man could prepare from one to four pounds per diem. With Whitney's cotton gin a single person could prepare in a day about 300 pounds—five times as much as by any prior method; and the daily capacity of modern gins is said to be about 4,000 pounds. The effect of this invention upon cotton raising was marvelous. In 1792 the exports of raw cotton from the United States were 138,328 pounds. By 1794, the year after the introduction of the cotton gin, the exports had increased to 1,601,700 pounds; in 1800 they had reached 17,789,803 pounds—more than one hundred fold in eight years; in 1820 they amounted to 127,860,152 pounds, of a value of $20,000,000, showing an increase in twenty-seven years of nearly a thousand fold.

III.38.48

—The story of Whitney's invention and of his almost unsuccessful efforts to obtain recognition of his rights as an inventor, is matter of history. The unscrupulous infringement of his patent brought discredit upon his contemporaries. But the record of the life of this man shows that he labored upon his invention in the hope of obtaining under a patent a share of the wealth it was to create; and had it not been for this hope, rendered possible by our patent laws, he could not have devoted his time and energies to the successful achievement of his great work.

III.38.49

—So the effect of our patent laws upon the general agricultural methods of this country is something almost incalculable. Nearly all the inventions which have made western farming possible on its present magnificent scale have originated and been perfected under our patent system; and the history of the development of our agriculture might almost be written from the patent office records of the annual achievements of American inventive genius. A single instance will call to mind the manner in which agriculture has been revolutionized by American inventions.

III.38.50

—Down to the beginning of the present century, the only great improvement that had been made upon the harvesting methods of the ancients was the invention of the cradle in 1794, by a Scotchman. In 1834 the first patent was issued in this country upon the McCormick reaper. It took McCormick about twenty years after 1834 to develop and perfect his machine, and it was between 1835 and 1858 that it was practically introduced. Their effect can be estimated by comparing in the following table (from the census of 1870), the agricultural population of the country with the amount of produce in which these machines are used, at the different periods before and after their introduction:

Table.  Click to enlarge in new window.

III.38.51

Allowance must, of course, be made for the innumerable other inventions employed in the culture of these products; but the general increase of per capita production can be roughly estimated from these figures; and while the farming population increased about 100 per cent. between 1850 and 1870, the produce of grain increased nearly 200 per cent.

III.38.52

—But the inventions to which this increase is due, could not have been devised or perfected without the stimulus and protection of our patent laws. More than 5,000 patents have been issued in this country upon reapers and mowers alone, and the latest machines embody the results of the life work of a hundred inventors whose only hope of recouping themselves for their expenditure of time and fortune was in our patent system, and who could not have labored without it. It is stated that the McCormick company alone has spent more than $1,000,000 in experiments, and it is also stated that this machine saves the country annually the sum of $10,000,000.

III.38.53

—Similar effects are to be noticed in our textile industries. In 1860 the number of hands engaged in woolen, cotton and other similar factories, was 181,550; the wages paid amounted to $37,301,710; and the value of the product was $196,416,400. In 1870 the number of operatives had increased to 233,328, about 40 per cent. The wages amounted to $79,401,367, more than 100 per cent. increase, and the product was valued at $395,158,565, more than 100 per cent. advance.

III.38.54

—It will be found in nearly every instance that the chief agency in effecting this increased production is the labor-economizing machinery devised by countless inventors, and patented among the myriad American patents. One more table will indicate the rate of increase in our general manufactures:

Table.  Click to enlarge in new window.

III.38.55

—But enough has been written to indicate the practical tendency of patent laws; and it may, perhaps, be safe to conclude that the opposition to patents, although directed at the system and demanding its abolition, has in fact been occasioned by the imperfect administration of still more imperfect patent codes. Especially is this true of the British abolitionists. The enormous expense of patent litigation in England, its "glorious uncertainty," and the practice of throwing on the public the burden of impeaching the patent without first officially investigating its validity, have opened the way in that country for great abuses, and have undoubtedly made the system unnecessarily burdensome to British manufacturers. In many instances under the English law, the manufacturer finds it cheaper to acquiesce in the claims of an impostor than to contest the validity of his patent in court. The remedy for these evils, however, and for the evils of the American system, is in reform of the law and its administration, not abolition of the system; and the fact that enormous benefits can still be traced to these patent laws, however imperfectly administered, furnishes a cogent reason for continuing and extending the benefits by continuing and improving the laws.

III.38.56

—IV. CHANGES IN THE LAW. The American patent system is regarded, both here and abroad, as the most progressive and complete existent institution of its kind. Many of the reforms and improvements in patent laws have originated at Washington, and have then been adopted by European governments. The most radical improvement in the system was made in 1836, when the patent office was established, and the practice of making preliminary examinations of inventions instituted. This latter feature is recommended by all economists familiar with the working of patent laws, as a desideratum of every system, and has been incorporated into the law of several other countries. Since 1836 there have been made minor changes and extensions of the American law, which have preserved and developed the general symmetry of the system; but with this development there have appeared certain defects and abuses which call for still further reform of the system, the character of which can here be only briefly indicated.

III.38.57

—The most impressive feature of the American system is its extraordinary magnitude. There have now (1883) been issued in this country since 1790, about 285,000 patents. During the year 1882 there were acted upon in the patent office 31,522 applications relating to patents, and in the same time 18,267 patents were issued or reissued. In that year only 6,099 patents expired; so that it appears that the number of patents is now increasing at the rate of 12,000 a year, and the records of the patent office are becoming enormously complicated. Patented inventions are there classified in 167 classes and more than 3,000 sub-classes. To preserve the system in its integrity, it is obviously necessary, first, that a patent should issue only for a new invention, and secondly, that it should be clear in its claims of all prior patents. A thorough preliminary examination of an application for a patent involves a search not only through our patent office records, but also through the records of the various foreign patent bureaus. A still more difficult task is to adjust the claims of a new application so as not to conflict with innumerable prior patents. It is vitally important both to the applicant and to the public that this investigation should be thorough and complete. This is every day becoming more difficult; and it is stated that not a week passes without the allowance of one or more patents at Washington for old inventions. Nor is this strange when we consider the number and complexity of the records to be searched, and the number of patents annually taken out upon certain subjects of invention. During the year 1882, ninety-nine patents were issued at Washington for cultivators and cultivator appliances alone. To remedy the acknowledged defects in the administration of our present system, several reforms have been suggested, the merits of which are obvious. These are: first, the requirement of a higher standard of invention to sustain a patent, rejecting the host of applications for merely obvious and mechanical improvements now indiscriminately allowed, which would relieve the records of the patent office and at the same time secure to the community and the inventor the benefits of all true inventions; second, the establishment of periodical fees as in the European countries, for the non-payment of which the patent should become void. This again would relieve the records by weeding out unsuccessful inventions from the patented list, and at the same time would work no hardship on the inventor, who, of course, derives no benefit from a patented failure.

III.38.58

—Another defect in our patent system is the procedure in the patent office through which the question of priority of invention between two or more applications for the same invention is determined. Without the constitution and without the judicial training and experience of a court of law, the examiners of interferences are called upon to decide, after a quasi trial, the most difficult questions of fact, in connection with which difficult questions of evidence often arise. And after the question has been litigated and settled in the patent office, it is not regarded as res adjudicata, but may have to be tried anew when the question of priority is afterward raised in court. The hardship of this can be realized when it is stated that these interference proceedings often take one, two or even three years before a final decision is reached, and involve the same outlay of money as do similarly protracted legal proceedings. But after all this, the successful party has not an adjudicated patent right, but an ordinary patent, which may be called in question in court. The successful litigant, as the outcome of his long litigation, has merely won a presumption. Moreover, there is no provision under the present system for mulcting the unsuccessful party in the costs of the proceeding; and the way is thus thrown open to any unscrupulous practitioner to debar and hinder an inventor, from obtaining his patent, by merely filing a conflicting application, with an oath that he is the inventor, and thus, without exposing himself to any liability beyond prosecution for perjury, he may involve the inventor in long and expensive litigation. So also there is no provision for the application of the doctrine of estoppel. The most obvious remedy for this defect is either to allow the rival inventors to litigate the question in court in the first instance, and issue the patent to the prevailing party; or else to restrict the function of the patent office to the investigation of the question of novelty, to issue the patent to the first applicant, and grant to subsequent applicants certificates of invention which would enable them, if they chose, to call in question in court the rights of the patentee. Unquestionably, however, inventors should be relieved from the possibility of being obliged to litigate the same questions twice, as is the case under the present practice.

III.38.59

—The decision of the supreme court in Miller vs. Brass Company (104 U. S., 350), and the later decisions following this case, have had the effect of reforming a great abuse which existed in the practice of indiscriminately reissuing patents. The statute made provision for reissue where the original patent was defective through inadvertence or mistake of the inventor; but in the patent office the practice had grown up of expanding patents by reissue so as to include more than the inventors originally claimed or invented. This practice was denounced as vicious in the above cited case, and is now no longer possible.

III.38.60

—A change in the statute law, which has been suggested to congress by commissioners for several years past, is the repeal of the provision which limits the term of a patent, where the invention has first been patented in a foreign country, to the life of the foreign patent having the shortest term to run. The motive which inserted this clause in our patent code was, to secure the patenting of important inventions in this country first, and perhaps also to obviate the supposed difficulty of continuing the American patent after the foreign one had expired, and thereby placing domestic industries at a disadvantage in the competition with foreign trade. In fact, however, this provision operates harshly upon the native inventor, who, if he first takes out his American patent, loses his right to patents in several European countries. The advantages of this law are by no means sufficient to compensate for the inconvenience it causes, and the provision should certainly be expunged from the statute book.

III.38.61

—It has also been suggested, that in certain cases there should be established some means of compelling patentees to grant licenses, as has just been done in England by the bill which received the royal assent in August, 1883; but the policy of this measure is at least doubtful. A more politic change would be the insertion in our patent code of a statute of limitations covering claims for infringement. Infringement is in the nature of a tort, and the claim should, therefore, after the analogy of other torts, be barred after a short term of years.

III.38.62

—Other and more radical reforms that have been suggested are, the creation of special tribunals to adjudicate the questions of patent law, whose judges should possess the necessary technical and scientific, as well as legal, attainments; and also the establishment of some means of securing to the court the opinions of absolutely unbiased experts upon the problems of science and mechanics which arise in the trial of patent causes. The present use—or, more properly, abuse—of expert testimony in patent litigation, is hopelessly confusing to the court, and renders its decisions uncertain and unreliable, as the conclusions of the court are often based upon the premises established by expert evidence. There should be some way, therefore, of enabling the court to call in the assistance of eminent scientists whose opinions would be uncolored by retainers from either of the litigants.

III.38.63

—Finally, it should be mentioned that, upon several occasions, the adoption of an international patent code has been recommended, especially by the patent congress at Vienna in 1873. There are at present no indications that such a universal system will be established, but it may yet be safe to conclude that this will be the final step in the development of the patent system, and that the time is perhaps not very remote when that step will be taken.

III.38.64

—V. FOREIGN PATENT LAWS. Taking its origin in England, the patent system has now been extended into more than forty states, provinces and principalities. Switzerland and Holland are the only considerable civilized powers at present without a system of patent laws, and in both countries strenuous efforts are being made to have a patent code enacted. Roughly speaking, the foreign patent systems, with one or two exceptions, differ from the American in not requiring an exhaustive preliminary examination of the invention as to novelty and utility before issuing the patent. Other differences may be observed from the following summary of patent laws.

III.38.65

Great Britain. Patents are issued for the term of fourteen years from the date of the application, subject, however, to the payment of a tax of £50 at the end of the third year, and £100 at the end of the seventh year. The statute of monopolies provided for the patenting of "new manufactures," but by judicial construction this term had been made to cover the four classes of inventions enumerated in the American act, and the act of 1852 substituted the term "inventions." The patent is issued either to the first inventor or to the "first importer," who is generally the agent of the foreign inventor. The usual procedure in taking out a patent is first to obtain "provisional protection" for six months, after obtaining which "notice to proceed" is given and advertised in the "Commissioners of Patents Journal," with a notification that opposition to the application must be made within twenty-one days from the date of the notice. Three weeks before the expiration of the "provisional protection," application for the law officers' warrant and great seal is made. The final specification is then lodged, and the patent issues for fourteen years from the date of the application. To sustain a patent it is only necessary that the invention should be new within the United Kingdom; and an invention patented elsewhere can be patented in Great Britain at any time during the life of the foreign patent unless a specification or complete description of it exists in the kingdom before the British application is made. The validity of a patent is, however, generally left to be adjudicated by the courts; and it is practically the mere grant of a right to sue for infringement so long as the validity of the patent is unimpeached. Important changes in this law, which were made by parliament during the present year (1883), and are to go into effect Jan. 1, 1884, may be summarized as follows: the cost of patents has been greatly reduced; power has been given the board of trade to grant compulsory licenses in certain cases; and the provision that the British patent lapsed with the expiry of any foreign patent of anterior date has not been re-enacted.

III.38.66

—Canada has a patent system resembling that of the United States, and the various Australian colonies and provinces have systems differing somewhat in detail, but substantially like the English in outline and theory.

III.38.67

France. Patents are issued upon substantially the same classes of inventions as in England and the United States, and extend for a term of fifteen years, subject to an annual tax of 100 francs. No preliminary examination of the invention is made, and the applicant is considered to be the first inventor until the contrary is proved. The question of the validity of the patent is thus entirely left to the courts, and in all patent litigation the burden of proof rests upon those who would oppose or impeach the patent. The novelty required is novelty over the entire world, and an invention must therefore be patented in France, at least as early as in any other country, as otherwise the foreign publication of the specification before the issue of the French patent, would invalidate the latter. The specification must give as full a description as is required by the American law, and the invention must be worked in France within two years of the date of the patent, to preserve its validity.

III.38.68

Germany. The present patent system dates from July, 1877. Patents are granted for the term of fifteen years upon all new inventions, with some exceptions, such as foods and medicines, and are subject to an annual tax, which increases fifty marks each year of the life of the patent. The patent is issued to the first applicant, except where the application is shown to be made fraudulently. The patent office is situated at Berlin, and an examination of the inventions submitted is made by examiners somewhat as in the United States. Before issuing the patent the specification is published, and opportunity given, for eight weeks, to oppose the grant of the patent on various grounds, as fraud or want of novelty. At the end of that time, if there is no opposition, the patent is granted. As in France, the invention must be worked within the limits of the empire within three years from the grant of the patent, to preserve its validity; and in certain cases the owners of patents are required to grant licenses at reasonable royalties. Willful infringement is, under some circumstances, a crime, punishable by fine, and all infringement may be restrained by civil proceedings.

III.38.69

Belgium. All applications for patents are granted without examination as to novelty, if they conform to the prescribed form, and all new inventions, except medical appliances and medicines, can be protected by patent. Patents are of three classes: of invention, of addition, and of importation. A patent of invention issues for the term of twenty years, subject to a tax, which increases ten francs each year of the life of the patent. The patent is void if the invention is not new within Belgium, or if any description has been published or foreign patent taken out upon it before the date of the Belgian application. A patent of addition is taken for an improvement of an invention already patented, and expires with the original patent. A patent of importation issues for the unexpired term of any foreign patent, if the invention has not been commercially worked within Belgium for more than a year prior to the application. The specification must be full and exact, as in the United States, and the remedies for infringement are substantially the same as in other countries.

III.38.70

Italy. Patents are granted for the term of fifteen years, or for a shorter term, upon all new inventions except medicines. A peculiarity of the Italian law is the provision that if the invention be patented elsewhere, the Italian patent continues with the foreign patent of the longest term, if within fifteen years. The invention is required to be worked in Italy within two years, and the patent is subject to annual taxes.

III.38.71

Russia. Patents are granted for a maximum term of ten years upon all new and useful inventions. An examination of the invention, both as to novelty and utility, is made, and apparently a high standard as to both qualities is required. Patents upon inventions previously patented elsewhere are granted for only six years, or less if any foreign patent expires within that time.

III.38.72

Sweden. The duration of patents is fifteen years, or less if any prior foreign patent expires within that time, and the duration is fixed in each case by the chamber of commerce. The patent issues only to the inventor. The patent can not be impeached after it has been issued eight months, but the invention must be worked in Sweden within from one to four years from the date of the patent, to preserve its validity, and yearly proof of such working must be given during the life of the patent.

III.38.73

Spain. Four kinds of patents are granted in Spain. A patent of invention is granted for twenty years, and a patent of importation for ten years if the foreign patent is not more than two years old; a third species of patent is granted for five years to any person who will work an invention hitherto unpracticed in Spain, although known there theoretically; finally, patents of addition are granted for improvements, which expire with the patent for the main invention. Each Spanish patent covers Spain, the Balearic Isles, Cuba. Porto Rico and the Philippine Islands. All new inventions, except medicines, may be patented, and the invention must be worked within the Spanish dominions within two years from the date of the patent.

III.38.74

—BIBLIOGRAPHY. Coke, 3 Inst., 184; Collier, Essay on the Law of Patents for New Inventions, London, 1803; Hands, The Law and Practice of Patents for Inventions, London, 1808; Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright; Rankin, An Analysis of the Law of Patents, London, 1824; Fessenden, Essay on the Law of Patents for New Inventions, Boston, 1822; Benouard, Traité des Brevets d'Invention, Paris, 1825; Regnault, De la Legislation et de la Jurisprudence des Brevets d'Invention, Paris, 1825; Carpmael, Law of Patents for Inventions, London, 1836; Edwards, On Letters Patent for Inventions, London, 1865; Aston, A Paper on the Patent Laws; Dircks, The Policy of a Patent Law; Brown, Popular Treatise on Patent Laws, London, 1874; Macfie, Abolition of Patents: Recent Discussions in the United Kingdom and on the Continent, London, 1869; Macfie, Copyright and Patents for Inventions, London, 1883; Chevalier, Patents for Inventions Examined in their Relations to the Principle of Freedom of Industry; Thompson, Handbook of Patent Law, London, 1882; Curtis, Law of Patents, 4th ed., Boston, 1873; Simonds, Summary of the Law of Patents, New York, 1883, Kleinschrod, Die Internationale Patentgesetzgebung nach ihren Prinzipien, 1855; Loosey, Collection of the Laws of Patent Privileges, Vienna, 1849; Gareis, Patentgesetzgebung, Berlin, 1879: Phillips, Law of Patents for Inventions, N. Y., 1837; Whitman, Patent Laws and Practice of Obtaining Letters Patent for Inventions, 2d ed., Washington, 1875; Hindmarch, A Treatise on the Law relating to Patent Privileges, Lond., 1846; Webster, Law and Practice of Letters Patent for Inventions, Lond., 1841: Johnson, Patentee's Manual, 3d ed., Lond., 1866: Walker on Patents, N. Y., 1883; Merwin, Patentability of Inventions, Boston, 1883.

F. W. WHITRIDGE.

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