Scientific American, v 5 (os), no 39, p 307, 15 June 1850
The Patent Office and Reform of the Patent Laws
The following article taken from the Union is no doubt from the pen of Mr. Burke, late Commissioner.
While the bill amending the patent laws was pending on Monday before the Senate, the following amendment was offered:
Sec --, and be it further enacted, That all rules, orders, and by-laws of the Patent Office shall be entered in a book kept for that purpose, which shall be public and open for inspection to all persons transacting business at the Patent Office; and said rules, orders, and by-laws shall be general in their application in all cases.
This amendment implies that the rules, orders, and by-laws (of which there are none) of the Patent Office are not open for the inspection of all persons, and that they are not general in their application to all persons doing business at that office. This is certainly an error. All the rules regulating the manner of doing business at the Patent Office are printed and distributed gratuitously to all persons having business with the office, and to all others applying for them. This has been the practice of the office, we believe, under every Commissioner, from the reorganization of the office to the present time. There is no secrecy or uncertainty about these regulations; and, in the main, they are now the same as when originally adopted. It is true, they are within the discretion of the Commissioner, who may, whenever the necessities of the office or justice require, alter, amend, or even suspend them. He exercises the same discretionary power over the rules which regulate the business of his office as the heads of the other bureaus exercise over their respective offices. We have never known the rules of the Patent Office to be altered, amended, or suspended for favoritism in a single instance; and whenever they have been amended or suspended, it has been for the purpose of promoting the dispatch of business in the office, or to enable the office to do justice to persons having business with it. We know that such was the case under the administration of the late Commissioner, and we have no reason to doubt that it is also the case under the present Commissioner. And we will take the occasion to affirm, that we do not believe there is another office connected with the government which is, and has been, more impartially, and systematically administered than the Patent Office.
Yet we are aware that there are, have been, and we have no doubt will forever continue to be, complaints against the office on account of the manner in which it is administered. The late Commissioner was constantly beset with these complaints, and the office was constantly charged with partiality and corruption. But these charges mainly emanated, not from inventors, but from agents and patent pirates; and if such charges are now made, we have no doubt they in the main proceed from like sources. The late Commissioner was constantly assailed by such persons who are the pests of scientific improvement, instead of its promoters. Instead of trammelling the hands of the Commissioner, Congress should give him power to expel from the office, and disqualify from all future business intercourse with it, patent agents, when guilty of offenses which disqualify them from doing business in any respectable court of justice.
We have examined the bill now pending before the Senate, and find that many of the sections merely re-enact what is now the law and usage of the Patent Office, and the residue we humbly believe would open all valuable patents to a general invasion by patent pirates. We are of those who believe that the honest inventor should be protected by the government instead of being exposed by its legislation to the depredations of a set of men who make it a business to infringe the rights of the inventor, and who, in point of morals, are not above common thieves. It is a great mistake to call the right of property in a valuable invention a monopoly. It is not a monopoly, in any sense of the word. The inventor is as much entitled to his intention -- the production of his intellect, labor, and money -- as the farmer is to the bushel of wheat produced by his own labor, or the lawyer to his fee. That right of property can be taken for the public use, as all private property can be, but not without an adequate compensation. This adequate compensation the government gives the inventor by professing to secure to him the exclusive and uninterrupted use of his invention for the term of fourteen years, in consideration that, at the end of that time, it shall become the common property of the public. Therefore, the government is, in justice, bound to be liberal to the honest and real inventor, and to give him adequate protection for the term of time stipulated for.
In the preceding remarks, we disclaim all reflection upon the distinguished mover of the amendment which has furnished the text of our article. We have no doubt his motives are most honorable and praiseworthy, but we believe he has been wrongly informed with regard to the matters to which the amendment relates.
[We shall make some remarks upon this letter next week. Ed.]
Patent Office, and Reform of the Patent Laws
In the article published by us last week, taken from the Washington Union, strong objections are made to the bill now before the Senate for reforming the patent laws, especially that clause which provides, "that all rules, orders and by-laws of the Patent Office, be entered in a book for that purpose, which shall be kept open for inspection to all persons transacting business at the office, and such rules, etc., shall be general in their application in all cases." In advancing reasons against such amendment to the Patent laws, it is stated that the Office has no by-laws, that its rules, orders and modes of doing business, are printed and public; that nothing has been done secretly, but openly, honestly and impartially, and "the rules never changed for favoritism." It also repels the charge of partiality and corruption, which the late Commissioner was constantly beset with. All this may be true, but surely this affords no good reason against the above amendment to the Patent Laws. To object to such an amendment, rather affords grounds for suspicion. We believe that our public men are too often accused of bribery and we cannot lay our finger upon any act of the Patent Office which could be classed under such a charge. But for all this, we do not believe that it is perfect -- rather the reverse. It needs reforming in some shape sadly, and we hope Congress will call the attention of the Committee on Patents to the subject, empowering the members to examine witnesses in relation to the matter. There is abundant evidence to prove the Patent Office guilty of injustice, recklessness and partiality. The business of the Patent Office, as it respects decisions upon applications, is conducted upon a system of erratics. Applications are granted or rejected, according to the state of mind the examiners may be in. There are four chief examiners in the Patent Office, each a feudal baron on his own domain. Their decisions, therefore, sometimes resemble boys shooting marbles along the four sides of a rectangle. One has acquired for himself the glorious title of "the guillotine." He knows every thing that was, is, and is not, and never will be. It certainly looks singular to see men making decisions, which resemble a dance of crooked sticks. Decisions are sometimes made in the Patent Office, which amount in substance to boxing the bones and throwing the compass overboard.
It is time that there were some uniform rules and regulations for all cases in the Office. One applicant will be rejected this week upon some shallow plea, when lo and behold another will receive a patent next week for something which has far less claims to patent protection. The Office is great upon granting patents for fly-traps, and such portentous engines of war, even to the placing of a looking-glass in one claim on our list this week. We suppose that this one for variation must be a wonderful rat trap. Some applications are exceedingly fortunate beside others. A few years ago, an application was made for a new manufacture of hate, a peculiar kind of willow bark being used for that purpose, and a kind which never had been used to our knowledge, and we know all the outs and ins about the business. It was rejected, upon the plea that various kinds of bark had been used for that purpose, and it did not constitute the legal subject of a patent. The assignee of the invention solicited the advice of Mr. Elliot in Washington, who advised him not to prosecute his claims, and we being an acquaintance of some twelve years standing with Mr. Hamilton, we told him to take Mr. Elliot's advice, as being in our judgment the most prudent to follow. The matter was dropped then, and he went to Charleston, S.C. Next summer we met him in New York, when he pulled a Scientific American out of his pocket, and pointing with his finger to a claim granted for "a new manufacture of nails made of muntz metal, (brass,) exclaimed, "So much for the impartiality of our Patent Office." We could pile up a number of such cases.
The decisions of the Patent Office are sometimes so unjust, that poor inventors are deprived of protection for good improvements, and thus the Patent Office becomes the biggest pirate of inventions in the Union. A working journeyman tinsmith of this city invented a new chimney cap three years ago, and applied for a patent. It was rejected upon the plea that there were plenty like it in New York, and it was described in "Reid on Ventilation." No chimney like it, either in appearance of quality, had ever been seen in New York, and the one in the work referred to, was as like it as cheese is to chalk. The Patent Office was then reasoned with on the subject, and in a letter sent to Washington, there was an affidavit in respect to its qualities, from a gentleman of this city, Mr. P. Naylor, who knows more about such things, practically, than the whole corps in the Office. But no matter, the Patent Office informed the inventor, (Mr. S. Bull,) that they did not take such evidence to be their guide, but if he would come on and show the superiority of his cap, they might grant him a patent. At that time Mr. Bull had not the funds to go to such an expense, and for want of protection to his invention, the Patent Office has allowed him to be plundered of his just rights.
We like impartiality, system and fair dealing in every respect. We don't like to see one applicant refused a patent upon grounds which are held to be no objection to the granting of a patent to another. We care not who the applicant is, let him be Jew or Gentile, when he applies for a patent, let his application be treated without moodiness and with impartiality. The Patent Office was mighty patriotic in the case of Mr. Bain, but recently, as if to make amends for past sins, it has granted a patent to a foreigner for a peculiar curve of a bucket for a propeller wheel, and rejected the application of an American citizen for a bucket of a peculiar form, which has been tested satisfactorily on a large steamboat. He is soon to receive his patent from England -- that protection from a foreign government, which has yet been denied at home.
It is a well known fact, that many applicants for patents are rejected at first, and then after a long correspondence, or a visit of some well paid person to the Patent Office, who knows how to manage the case, or else a visit at great expense by the inventor, (but the latter is not generally successful,) a patent is granted, perhaps with the alteration of one word to suit the whim of an examiner, and thus the rejected applicant at last gets a patent, and a patent that will be supported at law too. We dare say a hundred such cases happen every year.
The present Commissioner thanks the whole fee of rejected applications should be retained, instead of $20 being returned as is now the case. Why? because the correspondence is generally so lengthy and expensive to the Patent Office. But whose fault is this? That of the Office. If the reasons of the rejection are good, then the controversy will be short. We never trouble the Office with a scrap, if the reasons of rejection are good, and we never will do it. There is one reform which we would like to see carried out in respect to the Patent Office, and that is, "The first letter of rejection to be special, and to contain the heads of defense, in order that the applicant may examine and appeal to the Judge, paying down $25 on the notice of his appeal, and if defeated to lose it, but if successful, to be paid back his money and other $25 by the Patent Office. This is the rule working both ways, and is nothing more than justice. Another reform is the return of models to those who are rejected. Some models cost four and five hundred dollars, and it is rank injustice to retain them after refusing patents.
We have pointed out some of the partialities of the Patent Office, and could produce plenty more facts to back up all we have set forth. Does this not show that something ought to be done with this peculiar Department of the government? The principles of our government are correct and sound, but it is in the Department, where there are so many departures from positive good to comparative worse.