REPORT OF THE COMMISSIONER OF PATENTS FOR THE YEAR 1855
United States Patent Office
January 31, 1856
Sir: In obedience to the requirement of the fourteenth section of the act of March 3d, 1837, entitled "An act in addition to the act to promote the progress of science and useful arts," I now proceed to report the facts therein required, showing the transactions of this office during the past year, and its condition at the commencement of the present.
The total number of applications for patents during the year 1855 is 4,435 The entire number of patents issued 2,024 The whole amount of fees received $176,380.57 The aggregate of expenditures 179,540.33 __________ Excess of expenditures over fees $3,159.76
But by the act of March 3d, 1855, the money which had been previously taken from the patent fund for agricultural purposes, amounting to $40,078.78, was refunded; adding this to the amount of fees received, shows the whole amount of income during the year to be $216,459.35, which exceeds the total expenditures by $36,919.02.
The receipts and expenses of the office for the past year, together with the present condition of the patent fund, will be seen by reference to the following statements:
No. 1 Statement of moneys received at the Patent Office during the year 1855 Received on applications for patents, reissues, additional improvements, and extensions, and on caveats, disclaimers, and appeals $162,120.00 Received for copies, and for recording assignments 14,227.57 Received for old sash 33.00 ___________ 176,380.57 Amount reimbursed to patent fund, per act of 3d March, 1855 40,078.78 __________ Total 216,459.35 No. 2 Statement of expenditures from the Patent Fund during the year 1855 Salaries $67,629.08 Additional compensation, per act of 22d April 1854 2,229.50 Temporary clerks 31,938.19 Books for the library 830.45 Contingent expenses 36,764.82 Payments to judges in appeal cases 450.00 Refunding money paid into the treasury by mistake 225.00 Refunding money on withdrawals 39,473.29 __________ 179,540.33 No. 3 Statement of the Patent Fund Amount to the credit of the patent fund on the 1st of January 1855 $25,593.52 Amount paid in during the year, including $40,078.78, reimbursed to the patent fund by the act of 3d March, 1855, being the amount heretofore paid out for agricultural statistics, etc. 216,459.35 __________ Total 242,052.87 From which deduct Amount of expenditures during the year 179,540.33 __________ Leaving in the treasury on the 1st of January 1856 62,512.54 From the following table it will be seen how rapidly the business and revenues of the office have increased during the past fifteen years: No. 4 Table exhibiting the business of the office for fifteen years, ending December 31, 1855 Years Applications Caveats Patents Cash Cash Filed Filed Issued Received Expended 1841 847 312 495 40,413.01 23,065.87 1842 761 391 517 36,505.68 31,241.48 1843 819 315 531 35,315.81 30,766.96 1844 1,045 380 502 42,509.26 36,244.73 1845 1,246 452 502 51,076.14 39,395.65 1846 1,272 448 619 50,264.16 46,158.71 1847 1,531 553 572 63,111.19 41,878.35 1848 1,628 607 660 67,576.69 58,905.84 1849 1,955 595 1,070 80,752.78 77,716.44 1850 2,193 602 995 86,927.05 80,100.95 1851 2,258 760 869 95,738.61 86,916.93 1852 2,639 996 1,020 112,656.34 95,916.91 1853 2,673 901 958 121,527.45 132,869.83 1854 3,324 868 1,902 163,789.84 167,146.32 1855 4,435 906 2,024 216,459.35 179,540.33
The augmentation of the number of applications has been greater during the past year than at any previous period. That the increase in the number of patents is not proportionally great, is due to the fact that at the commencement of the year 1854 there were 823 cases undisposed of in the office, so that the whole number of cases acted upon during that year exceeded 4,000. At the beginning of the year 1855, there were but eighty nine cases on hand, and on the first day of the present year only sixty six.
There are papers in the office to show that, less than fifty years since, the annual income of the office was only about $1,500, and that for the seven years previous to 1826 the aggregate amount received was about $42,000, or an average of $6,000 per annum. These facts, taken in connection with the last of the above statements, will show with what a constantly accelerated rapidity the march of invention has been progressing for the last half century.
Hereto will be found appended a classified list of all the patents which have been granted during the past year, together with an alphabetical list of the patentees, and their places of residence. Also a list of all patents which have become public property during the same period.
In addition to the classified list of the patents granted within the year, it has long been the practice to furnish in the report a brief description of each of those patents, so as to present a general idea of its nature and purpose. To render these descriptions more intelligible, illustrations have been added in the reports for the past two years. This seems to have met with general favor, and the present report is prepared in the same manner. I trust it will also meet with the approval of Congress.
The act of the last session, authorizing the appointment of six additional principal examiners, limited the continuance in office of two of that number to the end of the present session, unless further extended by a new law. I deem it indispensable to the prompt transaction of the business of the office, that the present force should not be diminished.
The number of applications in 1854 was twenty five per cent greater than in 1853, and the increase during the past year is more than thirty-three percent of the whole number of applications of the year previous. This increase during the past year alone is sufficient to furnish employment for three principal examiners and as many assistants, reckoning by the average number heretofore acted on by each set of examiners. If anything like the same ratio of increase is to be continued hereafter, the present number of examiners will, before the end of the present year, be found inadequate to the discharge of the duties which will devolve upon them.
Still there are very grave objections to a further increase of the number of principal examiners. The system is already overgrown in that respect, and seems almost imperatively to demand some modification to give it a proper harmony and uniformity of action.
Each of the twelve principal examiners has charge of certain prescribed classes of cases. They necessarily act, to a considerable extent, independently of each other, and, possessing very different minds and views, they follow different rules of action and of decision.
The multiplicity of business in the office renders it wholly impossible for the Commissioner to exercise a personal supervision over the decisions in each of the numberless cases presented for official action. When the examiner reports in favor of granting a patent, it is issued without further question or examination.
In case of the rejection of an application, the law and the practice of the office permit an appeal to the Commissioner, and finally to one of the judges of the circuit court of the District. But such appeals are attended with much trouble and expense, so that, in most cases, especially where the applicant resides at a distance, a rejection by the examiner is, in point of fact, final. Under such circumstances, the importance of correctness and uniformity of decision upon the first examination can hardly be too highly appreciated. They cannot reasonably be hoped for under the system now in operation, and the most that system is extended the greater the evil becomes.
To remedy this difficulty several plans have been suggested, but they generally resolve themselves into one of the two following, or modifications thereof:
1st. The appointment of an examiner-in-chief, whose sole duty would be to review the actions of the present examiners, with a view of introducing the correctness and uniformity of decision. As a modification of this plan, it has been sometimes proposed to increase the number of examiner-in-chief to three, some one of whom should make a final decision upon each of the various questions, which should first be fully and clearly presented by some of the members of the corps of examiners as now constituted, and who might all three act conjointly on appeals and other cases of unusual difficulty.
2nd. To return to the former practices of the office, making the duties of the examiners simply advisory, and allowing a patent in all cases, provided the applicant should finally insist upon it, notwithstanding the opinion of the office as to its invalidity.
The main objection to the former of the above plans grows out of the difficulty of obtaining competent and suitable persons to fill the chief places. I doubt whether there is a situation under the government for which it would be more difficult to find a suitable incumbent. Qualities would be required for the satisfactory discharge of such a duty which are rarely found united -- a well-trained capacity for comprehending and investigating all subjects connected with natural and mechanical philosophy, and a high order of legal acumen and experience. The difficulty is still further increased by the fact, that very few of our lawyers have ever turned their attention in this direction. The law relating to patents is less understood by the profession than any other branch of that noble science. And as the cherished rights of inventors are to be submitted to the sound discretion of these officers, habits of patient and laborious investigation and the high moral qualifications of integrity and impartiality are quite as indispensable as those of an intellectual character.
If the difficulty of securing the services of persons possessing a union of all the above-mentioned qualities could be overcome, the plan we are now contemplating would probably be the readiest and most judicious mode of effecting the desired improvement of the present system. But the doubt of success in such an effort is so great, that something in the nature of the second plan, as above stated, seems worthy of some consideration.
That plan, however, would necessarily be subjected to some important modification before it would be admissible. When a meritorious inventor has obtained a patent which proves of high value, there are not wanting unscrupulous men, who are willing to trespass upon his well-earned rights. To permit a person of that character to take out a patent, valid on its face, for precisely the same invention, would be not only countenancing intentional wrong, but the office would almost become a participant in a design to impose upon the public. Persons taking assignments of either patent, would have no sufficient means of distinguishing between the spurious and the true, and would be as likely to purchase a property in the invention from the infringer, as from the real owner -- both being armed with the same evidence of legal ownership. This would be nearly akin to authorizing forgery and counterfeiting by law.
But if every patent granted contrary to the opinion of the office were required to bear conspicuously upon its face the evidence of that fact, or if the opinion of the applicant to demand a patent were limited to cases which would authorize no infringement of any pre-existing American patent, the difficulty above intimated would, to a great extent, be obviated. Perhaps, even when an application was held by the office to conflict with the rights of a previous patentee, the applicant might be permitted to insist upon his patent after due notice to the patentee, and a full opportunity given him to contest, in some proper court, the validity of the patent sought by the new applicant.
Should anything of the kind above intimated be adopted, it would, doubtless, be proper to provide a means by which any patent, wrongfully claimed and granted, might be invalidated and canceled. In fact, some provision of this nature would seem eminently proper and valuable under any system of patent laws.
The modifications we have last been considering would relieve the office from much of the judicial labor now devolving upon it, and would render the same high order of qualifications and experience less absolutely essential in the examining corps. Most of the legal controversies now arising in the office would be turned over to the courts of law, which are not only so much better qualified to adjudicate, but which possess the necessary machinery to investigate and conduct such matters, so as to lead to a result more satisfactory than can be done here.
All our republican notions of propriety revolt at the idea of making the substantial rights of property of any citizen depend upon the mere discretion of an executive officer. Such a system seems rather Asiatic than Anglo-Saxon in its type and origin. The present patent laws are certainly, to some extent, liable to this objection. It is true, they provide in some manner for bringing many of the decisions of the office before the regular judicial tribunals; but when an application which should be patented is rejected by the office, no opportunity is allowed the applicant for showing the justice of his claims before a court or jury. If he has a natural right to what he has created, may he not, in such circumstances, be regarded as having been "deprived of his property without due process of law" -- without the intervention of that great constitutional bulwark which he regards as a birthright -- a fair trial before a regular judicial tribunal.
That he has now the privilege of appealing to the judge of the circuit court, does not change the case essentially. The judge is only (for the occasion) a part and parcel of the Patent Office. He does not hear the case anew, but founds his opinion upon the necessarily imperfect facts and statements which are presented to the office.
The question of patentability is often one of the most delicate and difficult that can ever arise before any tribunal. A resort to the testimony of experts is frequently essential to a just and correct decision. The law now makes no provision for this or any other kind of testimony. No witness is obliged to appear, or to give testimony, unless he does so at his own option; and even if he swears falsely, there is no statute penalty.
Without the means of proving the practical working of his machine, or without any other legal testimony, the inventor sometimes provides himself with a few certificates or ex parte affidavits -- often of doubtful authenticity, and always regarded with suspicion; presents himself before the office; is rejected; appeals to the judge, who has no adequate means of arriving at a correct conclusion; and thus is frequently deprived of his rights without an opportunity of establishing them in the manner guaranteed to all other citizens.
Nor ought it to be supposed that these are matters of trivial moment; at least they are not so to the individual most immediately interested. To him, the offspring of his mental energies are something more than property; they are his children, for whom he has labored through much of the fairest portion of life's meridian, and on whom he relies for consolation and support in the evening of its decline.
That he has now no sufficient opportunity of establishing his rights before a properly constituted tribunal, is doubtless a great defect in the present system. Whether that defect shall be remedied, and if so, in what manner, will be for Congress to determine.
The above suggestions are not intended as proposing any definite plan for modifying the patent laws, but merely as presenting the difficulties experienced, and furnishing some things which may serve as a basis for future consideration by the body to whom the matter is submitted.
The present insecurity of the property of inventors, even after patents are obtained, is a source of great discouragement, and often of peculiar hardship. A patent gives to the holder only a presumptive right of property. When it is infringed -- no matter how wantonly -- the trespasser is permitted to protect himself by proving at the trial that the invention was first made by some other person, and not by the plaintiff; thought it may have been kept a profound secret, and would never have seen the light, but for the subsequent invention of the patentee; or he may defeat the action by showing that the same contrivance is described in some publication printed in any foreign language, and which publication was never seen or heard of in this country before the date of the trial when this proof is made.
The liability to be set at defiance in this manner continues throughout the entire life of the patent; and no matter how often the validity of the patent may be established in court, it is equally liable to be called in question on any new trial. The disheartening and prostrating influence that this is calculated to exert upon those who devote their lives and energies to the improvement of all the arts of civilized life, and to making those discoveries which have given a character to the present age, can readily be perceived without comment.
In the opinion of many, however, any remedy that can be contrived would be more to be feared than the evil which was sought to be remedied. But is there any good reason for such a conclusion? Why should the holder of a patent, which is presumptive evidence of title, be forever liable to have his right called in question by every mere trespasser? Such a course is not permitted in relation to any other species of property. The wrong-doer is not in other cases permitted to protect himself by calling in question the title of him who has prima facie evidence of ownership. Why should he do so in relation to this species of property?
It is true, that if a patent should be granted for a machine already in common use, and which is therefore fully the property of the public, any person sued as an infringer should be permitted to protect himself by showing the facts of the case. But why should a person who has trespassed upon what he does not pretend to be public property, be allowed to defend himself by showing the property to belong rightfully to some other individual?
The analogies of the law relating to tangible property lead to this same conclusion. If one person make an enclosure upon the lands of another, his right of action against any trespasser is complete and unquestionable; but if he were to enclose a portion of the public highway, no such action would be maintainable, for his enclosure is itself a nuisance, which any one may disregard or remove.
Analogy also suggest another provision, still more important and effectual. So great are the evils resulting from uncertainty of title to real estate, that in most of our codes means are provided by which the presumptive owner may file a bill in equity, and bring such uncertainty to an end. Is there anything in the species of property we are considering, which renders a similar provision out of place or objectionable? If the holder of a patent were permitted, under proper regulations, to file a bill to quiet his title, either in one of the federal courts already organized, or in a special tribunal created expressly for that purpose, would not the result prove as harmless and beneficial as though the patent were for real estate? The patentee would then be enabled to feel that security which would give double value to his property, and would be free from that continued series of vexatious lawsuits which often render the most valuable inventions the sources of continual annoyance, if not of eventual pecuniary ruin to their authors.
As a short and effectual remedy for all these difficulties, it is the opinion of some who have thought upon this subject that the whole system of granting patents ought at once to be abolished; but is it not one of the cardinal purposes in the establishment of all governments to protect the citizen in undisturbed enjoyment of his property? This species of property is by the Constitution placed under the special guardianship of Congress, and it is difficult to perceive why it is not as much entitled to legislative favor and protection as any other property. If inventions are not to be made capable of being effectually appropriated, why should lands, or any tangible article of personal property be so? And yet no one proposes to return to the savage state, so far as these kinds of property are concerned. To do so in regard to inventions, would be a retrograde in civilization, as well as a departure from the plainest principles of justice.
No title can be more unquestionable than that resulting from discovery, unless it be that which is derived from actual creation. The recognition of either, if not instinctive in the brute, is certainly found in the lowest and most uncultivated orders of human intelligences. The bird seems to have a sense of property in its nest, the best in his lair, the save certainly in the cave he has discovered or the weapon he has made; even the first occupant of a tract of land which he has neither discovered nor created, has a title which, in the absence of a better, is protected by the government of all civilized countries.
To none of these is the title of the inventor at all inferior. He has created or discovered all that he claims the right to possess. The property for which he asks protection might never have existed but for him, who has created it out of nothing. At least, he has called it into active being, and made it the servant of mankind, subject to the limited right of ownership, which he claims for himself. And when it is remembered that it is chiefly through the exercise of this inventive faculty that civilized man has risen above the savage, or that even the savage is to be distinguished from the brute -- that it is the inventor who has either directly or indirectly been, and still is, the great instrument of human progress -- that his has been the wizard wand which has called forth from the latent powers of nature messengers and servants, surpassing in fleetness and power, and mute obedience, the fabulous genii of eastern tale -- which has seized and fixed, as by enchantment, the transient and varying lineament, or the flying sound, and transmitted them unchanged to the latest posterity; or that, in humbler, but perhaps equally useful endeavors, he wears out his life in often unrequited efforts to benefit mankind, it must be a mistaken or perverted impulse which would grudge him that protection which is accorded to all others, or that would fail to encourage, in all suitable ways, efforts from which the world is now reaping such incalculable benefits.
The evil effects which would be the result of a departure from the rule of right in this case are easily perceivable. Were the law to afford no protection to the inventor, his only means of reaping any particular benefit from his invention would be by hiding it from the knowledge of the world, as in Turkey the peasant secretes his wealth lest it should become the prey of that rapacity against which the laws afford no sufficient protection.
But the knowledge that is thus hidden is often lost; at all events its utility is greatly lessened. The ancients were known to have been possessed of many valuable arts which modern ingenuity has tried in vain to rediscover. They are, perhaps, lost to the world forever; which would not have been the case had there been a judicious system of patent laws in existence.
Besides, in relation to many kinds of inventions, secrecy cannot afford any protection. Many machines, utensils, and manufactures are useful to the inventor only as they are publicly sold and used, and cannot, therefore, be hidden from the world. Without some other protection, therefore, that great moving power of human action -- the stimulus of pecuniary gain -- would never arouse to their full energies the efforts of human ingenuity.
The reason why hundreds of intellects in all parts of our country are strained to their utmost tension in the attempt to discover something that shall prove useful to mankind, is attributable to the fact that individual profit is inseparably blended with the general welfare. But who would cultivate a field if others were to have an equal right to reap the harvest? The acknowledgement and protection of private property are the parents of industry and efforts, as much in relation to inventions as to any other species of possession of estate.
For reasons like these, some have claimed that the property of the inventor in the creations of his own ingenuity should be perpetual; and the argument, founded on natural justice, is not without great weight. The main objection against it is drawn from expediency.
Original inventions are always imperfect, leaving much to be done by subsequent inventors. The patentee of each improvement upon any invention must obtain the license of previous inventors before he can avail himself of his own property. Were all these patents perpetual, as well as those for improvements, and combination upon combination, we should, in the course of time, find ourselves surrounded by inextricable confusion. The inventor must, therefore, be satisfied with such a modification of his right as is required by the public good. Whether the present limit be no too narrow, is a matter worthy of consideration. It certainly is so, if the whole period of its duration is to be consumed in contest after contest -- all leading to no final result.
Some modifications of the present rates of official fees have been recommended in former reports. They still seem desirable -- not so much for the purpose of increasing our revenues to any greater extent, as with a view to a more accurate adjustment in the amount of compensation to the labor and trouble occasioned by the respective cases.
In pursuance of the general idea of rendering the Patent Office merely a self-sustaining establishment, it seems desirable that every case should, as nearly as practicable, be taxed with the expenses it occasions, but no more. This rule might easily be much more strictly observed than it is at present.
The most signal departure from it is seen in the exorbitant fees demanded of foreign applicants. Where the citizen or immigrant alien pays a fee of thirty dollars, the subject of the Queen of Great Britain, who resides at home, is obliged to pay five hundred dollars. And yet the application of the latter occasions no more trouble than that of the former.
The plausible reason for this difference is, that our citizens are obliged to pay as great a fee when applying for a British patent as is required of the British subject at our office. It should, however, be remembered that the British government makes no discrimination in this respect between subjects and aliens; all are taxed at the same exorbitant rates.
The patent office in that country is made a source of revenue. The net receipts into the treasury from the patent fund, in 1854, were about $75,000, after having paid more than $300,000 in salaries and other expenditures. It will require little argument to prove that this is a course of policy which is not in any degree worthy of our imitation.
These inordinate rates of fees produce to a great extent the same evils which would result from the entire abolition of all patent laws. Invention is thereby greatly checked; for why should any one exert himself to create what he cannot afford to secure? Many seek to protect their rights by secrecy, and on both of these accounts the world loses many of the advantages which, under a better system, it would secure forever.
Our law co-operates with that of Great Britain in producing this very result. The inventive genius of other nations, checked or disheartened at home, finds itself repulsed here also; and that faculty which was intended to promote the progress and happiness of the race of mankind, lies comparatively inert and useless throughout a large portion of our brethren of the human family.
If patents were to be regarded as gratuities to the patentees, there would be some reason in the rule that the subjects of other governments should be treated as those governments treat our own citizens in this respect. But patents for inventions are no more to be so considered than patents for lands. In either case, the government receives a full consideration for what it grants. The inventor reveals his secret -- receives a sole property in the invention for fourteen years, and surrenders it to the public afterwards, paying all the time the expenses occasioned by the transaction of the necessary business. Can any one doubt that this is a transaction advantageous to the public? If it be so, need we ask of what nation the other contracting party is a citizen? It is not usual for our countrymen to be thus fastidious, when they are making profitable contracts. Our government grants patents for its lands, without asking such questions. Our citizens ransack the world for customers who will offer them bargains of that description.
Or if a patent granted to an alien were in any way antagonistic to the legitimate interests of the home inventor, there would be some reason for discouraging foreign applications by high rates of fees. But such is not the case, unless we are prepared to advocate the smothering of a valuable truth discovered in another country for the doubtful possibility of the same discovery being made afterward by one of our own fellow citizens.
Every real invention is a point gained, not by the country where the invention is made, but by the world to whom it is revealed. It is one more step in advance made by our common humanity in the progress of that development to which it is ultimately to attain. It matters little by whom those inventions are first given to the world. The learning, the science, the arts of Europe are as much ours as though they had originated in America; they advance us in the scale of existence in the same manner as though they were indigenous here; and as well might we refuse to improve our agriculture, by the importation of better varieties of grains, or plants, or animals, as to shut out or discourage those improvements in the arts or sciences which are first discovered in a foreign country. This is a Chinese policy, unworthy the intelligence and civilization of our age and country. A feeling of national prejudice, or a disposition to encourage the immigration of foreign inventors, may urge a continuance of the discrimination in favor of the home applicant for a patent; but that philanthropy which embraces within its scope all the children of our common parents, and that enlightened self interest, which rejects not a reciprocity of benefits by which the general welfare of all is manifestly promoted, alike forbid a continuance of this illiberal regulation.
Fully confident that the interests of the country and the usefulness of this office would be alike promoted by the course herein recommended, the candid consideration of Congress is again invited to this subject; and some reasons are given in support of the proposed change, additional to those presented in the last two reports of this office.
All which are respectfully submitted.