Scientific American, v 56 (ns) no 2. p 16, 8 January 1887
The Annual Attack upon our Patent Laws
It is with a feeling of genuine regret that we announce the commencement of the annual attack upon our patent laws in the House of Representatives. It is in no idle spirit that we make this statement. Our duty in the matter extends far beyond the noticing or chronicling of the event. The remedy and antidote is to be provided. Let our readers take individual action in the matter; let every Congressman hear from his constituents in unmistakable tones that the patent system of America is not to be disturbed, and the work will be done. Whatever bills menacing the rights of inventors shall be brought forward, a single warning will apply to all.
The bill we particularly allude to is one that was introduced during the last session of the House of Representatives by Mr. R.W. Townshend, of Illinois. Its number is 4,458. This year it has been again brought forward, and it was the subject of debate on the 20th of December in the House.
Its provisions are in brief that the United States courts shall have no jurisdiction in patent cases where the damages do not exceed $200, and that purchasers of a patent right for actual use shall not be liable for its value or for infringement in any way if, at the time of its purchase, they had no knowledge of the claims of any third party.
By one provision, infringement of the multitude of small patents is legalized. Any one could use patented churns, sewing machines, mowers, reapers, minor improvements in steam engines and general machinery, without reference to the inventor. It is well within the truth to say that a vast majority of cases of infringement could be brought within the operation of such a law.
In its second clause, the innocent purchaser of a patent right is upheld in his bargain. He may buy what another has no right to sell, playing the part really of a receiver of stolen goods, and this transaction is to be protected by congressional enactment.
With the constitutionality of this act we have now no affair. It is enough to say that in the debate concerning it, its unconstitutionality, its want of clearness, and its surplusage were all subjects of attack. Our concern is for the interests of the country at large. The industries of America have been built up on and repose upon patents. Every factory large or small uses in its machinery numerous patents. Every individual workman has patent tools that expedite his labors. The farmer is perhaps more directly benefited by patents than any one else. Instead of swinging a scythe of unimproved construction through a long eleven or twelve hour day, with the result of one acre mown at the end of it, he sits at ease upon the seat of a patented harvester, and with a team of horses reaps and binds, without other help, thirteen acres of wheat a day. Reapers, self-binders, and harvesters do the work of the West, on the great prairies. In the East, where smaller farms are the rule, the hand tools used are all subject of patents. Without the patent system none of these improvements, large or small, would have been invented. The Townshend bills professes to be aimed at the protection of the particular, the farmers, from some mysterious "black-mailers." The existence of the latter is quite doubtful. But if such do exist, and work detriment to the agriculturists, their measure of harmfulness is nothing compared to the evils threatened by this bill. Even more than the manufacturers, the farmers should oppose it. The very class for whose protection it is professedly introduced are attacked by it.
And now we may more explicitly state what action should be taken by all who have the welfare of the country at heart. They should address their representatives in Congress. Manufacturers whose capital is pledged upon the maintenance of patent rights; farmers who could not profitably cultivate their land but for patented agricultural machinery; workmen employed to run, and who earn their living by running patented machinery to manufacture patented articles, should be heard from. Especially should the constituents of any member known to be opposed to patents address him, and tell him of their wishes.
Revival of Patent Nullification
It will be remembered that in 1884 an attempt was made in Congress to pass laws in the interests of certain infringers of patents, such as railway corporations, barb fence makers, drive well infringers, and others, to prohibit patentees from recovering damages for violation of their patents, and making it lawful for any person freely to make and use a patented invention without responsibility to the inventor or his assigns. By some unaccountable folly, two of these hostile bills passed the House of Representatives by very large majorities; they were rushed through without sufficient opportunity for debate, and before their full purport could be understood by the friends of the patent system. The passage of the bills in the House raised a storm of indignation in all parts of the country, especially in manufacturing districts, and among the great body of working people, who depend for their livelihood upon the success of home industries.
To exempt infringers of new inventions from penalty was regarded as tantamount to nullifying the patent laws and wounding all the vast industries that rest upon patents.
The most energetic means were taken to defeat this unprecedented action of the House. Meetings of citizens were held, conventions were called, boards of trade convened, legislatures of States passed resolutions condemning the act, floods of protests were sent to members of Congress, and to crown all, the press of the country discussed the matter thoroughly, and gave unanimous voice against the consummation of a measure so suicidal and unjust. These combined efforts were successful. The bill was disapproved in the Senate, where it was elaborately discussed, and the impression or expectation has prevailed that its revival would not be attempted. But this expectation has proved vain. On the 20th ult. the obnoxious measure, in a new form of words, was brought forward in the House, and its passage urgently demanded.
The following is the text of the bill
H.R. No. 4458
Be it enacted, etc., That hereafter the United States district and circuit courts shall have no jurisdiction to hear or to try any case arising from the actual use of any patent right, or its infringement by such use, by any person in or citizen of the United States or the Territories, wherein the amount in controversy does not exceed $200 against one person or citizen.
Sec. 2. That purchasers of any patent right for actual use shall not be liable to damages, royalty, or for value of the same, or for infringing the same in any manner, who at the date of such purchase had no knowledge of the claims of any third person or that the inventor of the same has an interest therein adverse to the seller thereof. That no person who shall in good faith purchase, use, manufacture, or sell without previous knowledge of the existence of a patent therefor, any article, machine, machinery, or other thing for the exclusive use, sale, or manufacture of which any patent has been or hereafter may be granted to any person, persons, or corporation whatever, shall be liable, in damages or otherwise, for an infringement of such patent until after written notice of the existence thereof shall have been personally served on such person or persons or corporation, as the case may be, and such infringement shall be thereafter continued.
Sec. 3. That all laws or parts of laws inconsistent herewith are hereby repealed.
Sec. 4. That nothing herein contained shall affect any pending suit or proceeding in any of the courts of the United States or in any court of any of the several States.
A bill like this, which overthrows an industrial policy that has been successfully carried on almost since the foundation of the government, which cannot be otherwise than disastrous to all manufacturing interests and to the property rights of patentees, is deserving of the most deliberate consideration and the fullest discussion. But its advocates took good care to prevent this.
Under the rules, only thirty minutes were allowed for debate -- fifteen, in support of the bill, and fifteen against it. Mr. Townshend of Illinois, Mr. Henderson of Iowa, Mr. Morgan, from Mississippi, and Mr. O'Donnell from Michigan were the chief supporters. The principal advocate was Mr. Townshend, and from his remarks we gather that his most pressing reason for wanting to pass the bill is that a few farmers among his constituents have been victimized to a small extent by parties who pretended to be the proprietors of the drive well patent; and when the rightful owner of the patent appeared and claimed ten dollars each for use of his invention they refused to pay, denounced the demand as an outrage, and have gone to the Supreme Court about it. To prevent the recurrence of such claims, the advocates of the bill ask that the laws be emasculated. But if we take away from the patentee the right to compel infringers to stop piracy and pay for use, we nullify the law, and patents cease to have value.
Some of the speakers for the bill claimed there were thousands of cases of "innocent suffering;" but none of them alluded to any distinctive examples except Mr. O'Donnell of Michigan, who cited, as his worst case, that of a farmer who, after having declined to purchase a certain machine (he does not say what it was) at a reasonable figure from the original patentee, allowed himself afterward to be persuaded to buy an infringing machine of inferior quality. He returned this machine, without loss, because it did not work well; but the original patentee compelled him to pay a few dollars for his infringement in using it. And it is to remedy hardships of this kind on the part of "innocent purchasers" that Mr. O'Donnell advocates the bill.
The chief opponents of the bill were the Hon. N.J. Hammond of Georgia, Hon. Benjamin Butterworth of Ohio, late Commissioner of Patents, and Hon. R.Q. Mills of Texas. Mr. Hammond made a very eloquent and powerful speech against the bill, in which its obnoxious features were clearly exposed. The bill will soon come up again in the House.
SPEECH OF THE HON. NATHANIEL J. HAMMOND OF ATLANTA, GA.
This bill seems a declaration that in all cases where the damages do not exceed $200 against each person sued, there shall be no suit for the infringement of a patent right. I do not know the statistics on the subject, but I will venture to guess that seven-eights of the patents granted in this country are of such character that individual infringements will not amount to $200 damages each. This bill seems, therefore, a declaration that the constitutional protection, which is thrown around patent rights shall belong only to those great and magnificent patents involving thousands of dollars, while the men who by their brain and toil have brought forth the small patents shall have no protection from this government.
Mr. Speaker, the section from which I come has very little interest in patents so far as the protection of the patentee is concerned. I can, therefore, have no wish in opposing this bill but to protect the rights of American citizens wherever they are involved. The Constitution declares that Congress shall have 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."
The Supreme Court of the United States has more than once declared that a patent is a solemn contract between the patentee and the government, by which the exclusive use is granted to him for a limited time in consideration of public use ever afterward, and which, like any other contract, can be set aside only for fraud. This bill, therefore, in effect seems to declare that seven eighths of all the patents in the United States shall by these three sections be cut down so as to be practically valueless. For, mark you, the bill gives no jurisdiction to a State court, and under the present law no State court has jurisdiction of any suit for the infringement of a patent.
This first section, it will be observed, has nothing to do with good faith or bad faith. Under it a man may in open market buy or sell a patent without authority in the patentee's face, and answer, "I damage you only to the amount of $199, and you cannot sue me anywhere." That is the first section of the bill as it seems to be intended.
Now, let us look at the next section, the section as to bona fide purchasers. I have shown that the first section has nothing to do with good or bad faith. Here is the section in regard to bona fide purchasers:
"Sec. 2. That purchasers of any patent right for actual use shall not be liable to damages, royalty, or for value of the same, or for infringing the same in any manner, who, at the date of such purchase, had no knowledge of the claims of any third person, or that the inventor of the same has an interest therein adverse to the seller thereof."
Now, Mr. Speaker, when a man obtains a patent, he is required by the law to have marked on it that the article is patented. His letters patent are of record here, just as our title deeds to real estate are recorded in the proper offices.
There is no such thing as a bona fide purchaser of a patented article without notice that it is patented. If the mark of patent right is on the thing, the man who buys it with his eyes open cannot be an innocent purchaser against the right of the patentee.
Again, it declares if he buys it for his personal use he may infringe it in any way whatever and not be liable. He may buy an article to use it personally, and put men all over the country to manufacture it, and yet not be liable in damages, because he was an innocent purchaser without notice.
The next paragraph of that section declares that no person who shall in good faith purchase, use, manufacture, or sell, without previous knowledge of the existence of a patent therefor, any article, machine, machinery, or other thing for the exclusive use, sale, or manufacture of which any patent has been or hereafter may be granted to any person, persons, or corporation whatever, shall be liable, in damages or otherwise, for an infringement of such patent until after written notice of the existence thereof shall have been personally served, etc.
All a scoundrel has to do is to infringe a patent, and run faster than the marshal. The greater the rascal and the better the racer are all the tests whether there can be recovery. He is a witness in court. He can swear to his good faith, after he is caught; before he is caught he will not be liable at all, because he is liable under the bill only for damages occurring after personal services of notice of his wrong.
In my section of the country there are very few patentees. We have but little enough concern, care little for them in any such sense as that. And if I were seeking to place myself upon the side which the gentleman from Illinois calls the "masses," I would go in for depriving patentees of their constitutional right. They are decidedly in the minority. But I understand that the same good faith, that the same high consideration, which should actuate us in keeping treaties with foreign nations, ought, with double force, to compel us to keep constitutional contracts with our own fellow citizens. For these reasons I hope this bill will not pass.
SPEECH OF THE HON. BENJAMIN BUTTERWORTH OF CINCINNATI, O.
Mr. Speaker: I submit if ever there was a bald attempt to kill the goose that lays the golden egg, this is such an attempt. The industries of this country depend for their origin and growth more upon the encouragement given to the inventor by our patent system than upon every other influence and all other causes combined. It is due to our patent system that we today excel all others as a manufacturing nation. This bill practically "wipes out" our patent system; and, as my honored friend on the left [Mr. Hammond] said, while it may leave in a degree unimpaired some monopolies, if such a thing as a monopoly can in fairness be said to exist in this country -- and there is what is near allied to a monopoly -- while the provisions of this bill leave them unharmed, they at the same time not only leave unprotected, but practically confiscate, the property of thousands who by lives of thought and toil have laid the foundation of our magnificent industries. It legalizes the robbery of these, the most deserving and most numerous class of inventors. As has well been said by the gentleman from Georgia [Mr. Hammond], not one in a thousand need be swindled unless he consents to be, and is in fact, conspicuously, a party to it. The law requires that each patented article shall be so stamped, including the date of the patent, that no one need be imposed upon if he exercises care. It is true there may be devices covered by patents which are parts of a machine and so located as not to be observable, but these are rare exceptions, and fraud of imposition in such cases is unheard of. Every intelligent person knows that under every system of laws, however perfect, some hardships will result. It is impossible to conceive of a system so perfect as to be free from hardships in individual cases, and our patent laws, in their practical operations, may, in isolated instances, be the instrument of wrong and frequently of annoyance; but compared with the inestimable blessings the patent laws, as administered, confer with lavish hand upon all our people, the inconveniences a few may suffer are as nothing, and certainly can offer no semblance of justification for the wholesale confiscation of property in patents that would result from the enactment of such a law as is here proposed. What does this bill propose? To take away the remedy in case of trespass upon and injury to the class of property created by our patent laws. It in effect authorizes A to appropriate to himself the property of B, without compensation and without redress. The right is left, the remedy is taken away.
In my judgment, this bill could not be more offensive to justice unless it literally legalized the calling of the footpad, and afforded immunity to pickpockets; since it must be evident that the acts named differ from those permitted by this bill only in this, that the footpad places the victim under duress before he robs him, while this bill authorizes the appropriation of the property of another without violence, and leaves the victim without remedy and without redress. In each case, the victim loses his property; but in case the footpad takes it away, it may be recovered, but the individual who is robbed under the provisions of this bill is remediless.
Not to exceed 10 per cent of the patents issued by the Government of the United States prove valuable to the patentee. Why? Because the larger per cent of patented machines and devices mark so slight an improvement, although an important improvement, in the art that the inventor is unable to reap substantial profits. Nevertheless, each improvement marks an advanced step in the art to which it belongs; and while it is usually the men who make great strides, extraordinary improvements, in an art who realize great profits, yet it is the seemingly less important improvements that have built up and made prosperous the vast and various industries of our country.
The bill has for its manifest object to deprive the honest inventors, whose labors have added to the well-being of the whole people, of his remedy to recover from the person who has willfully and knowingly taken from him his property, that which the Constitution and the laws of the country say shall be his property for a term of years. I say you prevent his recovering from the man who willfully and in violation of the Constitution and the laws of the country takes possession of his property and converts it to his own use. Pass this bill, and you authorize every man to seize upon and convert to his own use the property of his neighbor. The product of the brain and hands of one of our citizens -- if it a new law and useful improvement in any art -- is by law property as much as a horse or cow; and the offense of taking the one without compensation is as great as taking the other, and is in conscience, and should be in law, as censurable.
This bill, if it should become law, wipes out at one stroke of the pen property rights of more than one hundred millions of dollars in value. It is, in fact, impossible to calculate the mischief it will do. Ninety per cent of the thriving industries of the country are built upon inventions covered by patents. "But then," says some friend, "we are being robbed by the system."
Mr. Speaker, I can show you, can demonstrate, that instead of that being true, this system has cheapened every product that is used in the house, in the barn, in the field, in the mill, in the shop, the forest, the factory, and on the ocean. It has cheapened all the articles we use. Instead of imposing burdens, it has scattered blessings, and this covert attempt to steal the blessings while destroying the source from whence they proceed is utterly indefensible. I wish I had time to examine the bill in detail in order to show its enormities.
[Here the hammer fell.]
Defeat of the Obnoxious Patent Bill
We have much pleasure in announcing the defeat in the House of Representatives, on the 17th inst., of bill H.R. 4,458. In our paper of January 8 we gave the full text of the bill. Its fundamental idea was the emasculation from the patent laws of the right of inventors to collect damages for infringement, thus practically giving to infringers free liberty to make use of and sell any patented invention they might desire. The passage of the bill would have injured almost every industrial establishment in the country.
The bill was defeated by the very decisive vote of 156 nays to 81 yeas; not voting, 82. The thanks of the nation are due to the 156 representatives who knew their duty, and when the vote came did not hesitate to do it.
In December last, when the bill came up in the House, Mr. Townsend, of Illinois, the father and most able advocate of the bill, and a member of the Patent Committee, stated that the Committee unanimously asked that the rules might be suspended and the bill passed. Only thirty minutes were allowed for debate; and when the allotted time had passed, an adjournment took place, which carried the vote on the bill over until the present time.
It now appears that the thirteen members of the committee only five were in favor of the bill, four were against it, and four did not venture to vote.
Several other unsatisfactory amendment bills are still pending. We trust they will be carefully scrutinized and defeated.
Celebration of the Centennial of the Enactment of the Patent Laws
To the Editor of the Scientific American
The first patent law was enacted in U.S.A. on the 10th of April, 1790. I would suggest that inventors meet in 1890 at some place for centennial celebration, for the purpose of showing the great progress made by the American genius under the protection of the law. I would like to hear from others.
[As the locality for such a convention, we would suggest this city. The patent law was passed by the first United States Congress, whose first two sessions met in New York, the first session lasting from March 4 to September 29, 1789, and the second from January 4 to August 12, 1790. An exhibition of inventions, of early productions of the pioneers of the arts, might be organized in connection therewith, and a really memorable centennial might be celebrated. We echo the sentiment of the last sentence of our correspondent's letter. Others should be heard from.]
The Annual Attempt
We are pleased to see that the annual attempt made by some members of Congress to nullify or irreparably injure our patent law system has been laid to rest for this year, at least; the bill introduced to render suit for infringement impossible where damages do not exceed $200, or where the purchaser of an infringing device bought it in bona fides, has been defeated.
This is proper. There are many among the vast number of patents recorded at Washington that cover, apparently, worthless devices, or such as are at least of insignificant value. Yet careful investigation and a knowledge of what has been accomplished in the mechanical world will show that nearly all have found employment, in some form or other, in some valuable invention, that more than counterbalances in its widespread utility the insignificance of many of the members or parts of which it is composed.
Inventors are entitled not alone to protection, but respect; for while it is true that some "cranks" may be found among them, and though many of the patent devices are crude and impracticable, yet each one represents an original idea, which, combined with the original ideas represented in other devices, have made our people the foremost on the earth. It is not one inventor to whose genius is due the perfect machine of today, but it may be that the ideas of a thousand have been combined to produce that result, many of whom are dead, nearly all of whom are forgotten, and their names unknown, save as they are written upon the musty records of the Patent Office.
Without the encouragement to inventive genius the protection afforded by the patent laws provides, would any of the trades that are today in a prosperous and advanced condition have attained their standing? Some of the mightiest interests in the world would certainly have been far behind their present condition.
Unaided by the genius of humble, and sometimes cranky, inventors, the world with its billions of capital and its millions of strong and willing arms would have made but poor progress in bringing railroading up to its present state of perfection. The modern housewife is spared half her drudgery by the ingenuity of the inventor we dub a crank, and the workman finds his labors lightened and his wages increased by the tools and machines and many manufactured articles this same inventor has brought into practical shape.
We need not go outside of the plumbing trade in order to find evidence of what the inventor has accomplished for the good of the community. How many of the best appliances we use are protected by patents, while the materials we employ in all our work are cheapened directly or indirectly by improved and usually patented method of production!
Under these circumstances we have a right to honor the inventor, and give him such protection for the smallest of his devices as will encourage him to improve on them and extend his efforts on behalf of society, already so deeply in his debt; and every effort, open or disguised, to impair the efficiency of our patent laws should meet with unflinching opposition from all interested in our mercantile and industrial progress.
-- Sanitary Plumber
Centennial of the United States Patent Laws
To the Editor of the Scientific American
Noticing in your paper on the 12th ult. Mr. E.M. Shields; suggestion of celebrating in 1890 the centennial of the adoption and foundation of the United States patent office laws, I am pleased to see this important matter taken hold of by the Scientific American.
There is no doubt if all the inventors and men who have become rich through inventions would take an active interest in the matter in time. Why should we not have a celebration which would do credit to our country, and possibly be able to show the world that our country is the mother of invention?
David G. Weems
Baltimore, Md., March 16, 1887
The Patent Office
It is to be regretted that Commissioner Montgomery insists upon resigning, although his description of his official existence is anything but alluring. "Many a day," said he to a local reporter, "the only thing that kept me from kicking a man, a congressman, may be, out of my office was that it was a public office, and did not belong to me. Day after day I have sat in the Patent Office, subjected to the insolence and abuse from the office seekers, which I would not have suffered for a single moment had I been in my own law office. Naturally, I am not such an ill-tempered person myself, but I fear that the nagging I have had to stand during my two years of office has taken a good deal of the good temper out of me. Women, too, are the cause of it. There is only one thing more difficult to get rid of than a woman seeking office for herself, and that is a congressman seeking office for a woman." Mr. Montgomery has made an admirable commissioner, and it is to be regretted that the office seekers are driving him away.
-- The Manufacturer's Gazette
The New Commissioner of Patents
The President has appointed the Hon. Benton J. Hall, of Burlington, Iowa, to the Commissionership of Patents. The office recently became vacant by the resignation of the Hon. Martin V. Montgomery. The new official is a lawyer of standing and prominence. He was born in Mt. Vernon, Ohio, in 1835, and graduated at Miami University in 1855. His law practice began in the office of his father, Mr. J.C. Hall, of Burlington. This gentleman, in his day, was regarded as one of the leading and best lawyers of the State. His son is the second Commissioner from the State of Iowa. His predecessor from that State, Charles Mason, was appointed in 1852, his commission lasting from the 24th of March of that year, and his term lasting five years.
We hope and believe that the State of Iowa will be as well represented now as it was by Mr. Mason, over thirty years ago. The position of Commissioner of Patents yields in importance to few government offices. In times of peace especially, when the inventive arts are exercising so many minds, and when the true conquests over nature are being won, the arbitrament of interests of the greatest magnitude rests in the hands of this official. The products of the thought and labor of some thirty thousand inventors have annually to be examined, and their claims adjudicated. To carry out this work systematically, the influence of the head of the department should be felt in every bureau. Consistency in his rulings will reduce the practice of the office to a uniform standard.
The industries of the country, on which its wealth and position among nations depend, pass in continual review through the Patent Office. Every modification of its practice, as dictated by court decisions or as inspired by the personal convictions of the Commissioner, is felt far and wide. Patent after patent could be cited whose value has gone up into the millions; and were it possible to arrive at the aggregate value of all patents issued, the interests represented would be enormous. The finances of the other departments of government, even of the Treasury itself, would yield in true importance to such statistics, as the value and profit of patents affects the personal interests of the people individually and directly.
Besides this aspect of the case, the influence of patents and the mode of granting them upon the prosperity of the country, not only in peace but in war, illustrates the importance of rightly filling the office of Commissioner of Patents. The recent legislation in the direction of building up a navy for this country will have a successful issue largely dependent upon patents. The successful gun, its powder, its projectiles, will probably involve many patents, while the ships of war will include in their construction still more. The industries of the nation, by which it lives, are based upon patents, and the defense of these interests in case of war will depend upon the same. It is only by American genius, fostered by our patent laws, that the manufacturers of America are able to compete with the low-priced labor of other countries, and this genius will be called upon, if war occurs, to invent methods of defense. The effect of patents is felt upon the arts both of war and peace. The administrator of the office, in one sense, holds in his hands, or has a strong influence upon, the destinies of the country.
The Western judges have rendered some of the best and most enlightened decisions in patent cases. In receiving from one of these States a new Commissioner of Patents, we venture to augur good from the selection. The past record of Mr. Hall entitles us to hold this conviction. If he will continue the work of his predecessor, and gradually bring the business up to date, so that less delay will intervene before the consideration of a case, he will be entitled to the thanks of the community of inventors, and he will do the entire country a great service. The coming year may see the delays done away with, and the work of the Patent Office on a regular business basis.
On April 1 the President appointed Martin V. Montgomery an Associate Justice of the Supreme Court of the District of Columbia, to succeed Justice MacArthur, who has retired. The new incumbent is a resident of Lansing, Mich. He was born in 1840, in Eaton Rapids, Eaton County, Mich. He was admitted to the bar in the circuit court for that county in October 1865. Since that time he has been admitted to practice in all the Federal courts, including the Supreme Court. His private practice in the State of Michigan was very extensive. His first active participation in politics dates back to 1870, when he was elected by the Democrats to the State Legislature. In 1876 he was a delegate to the National Convention at St. Louis. He was appointed Commissioner of Patents in the beginning of President Cleveland's administration, this being one of his first important appointments. The experience of his office as Commissioner should render him a peculiarly valuable addition to the bench of the court in question, before which so many patent cases are brought on appeal from the Commissioner of Patent's decisions.
The Driven Well Patent Sustained
On the 23d of the present month, the United States Supreme Court rendered two decisions in cases brought under the celebrated driven well patent, sustaining it, and adjudging the infringement of the patent as proved. For several reasons, these decisions are of wide-spread interest, both to laymen and to the professional world. An enormous number of driven wells have been constructed, and the royalties now collectible are very large, and those from whom they are to be collected comprise all classes of our people. The decision was rendered upon a reissue, on its face possessing expanded claims, and one applied for four years after the granting of the patent. The original patent bore the number 73,425, and was granted Jan. 14, 1868. The reissue number, 4,372, was dated May 9, 1871. Thus the decision includes the sustaining of a reissue, something that is not generally expected of the Supreme Court.
To understand what this amounts to, the history and claims of the original patent and of the reissue may be examined. The original drive well was devised by Norman W. Green, Colonel of the 76th New York Volunteers in 1861. In order to procure fresh water for his men, then encamped at Cortland, in this State, he drove a pointed rod into the ground until a water-bearing stratum was reached. Then he withdrew the rod, and introduced a tube into the aperture thus made, and through this tube or pipe the water was pumped. The claim of the original patent includes these three steps. In the reissue, the process later adopted is described and claimed, namely, the direct driving of a tube into the earth until the water supply is reached.
This is the matter of the claim of the reissue, and in its coalescing of three steps into one a broadening of the matter seems visible. Yet this reissue has been sustained.
A further plea against the patent was made on the grounds of neglect to prosecute, and here Green was also fortunate. His first well was made in 18161, yet he only applied for his patent in 1866, some five years later. An effort was made to construe this into an abandonment of his invention to the public, but the attempt failed.
The ground taken by the Supreme Court on both these issues, ground favorable to the patentee, is of interest to inventors. It indicates a disposition on the part of the court to deal more liberally with patents. It had become almost an axiom that reissues could not be sustained, yet here is an instance where expanded claims and delay did not suffice to invalidate one.
Many of the recent attacks upon our patent system, that have been made of late years in Congress, have been to a great extent inspired by this famous patent.
If royalties under it were ever to be collected, it was clear that a vast number of individual would be liable. The farmers throughout the country have put down drive wells, in many instances doing the whole work themselves. After enjoying the use of them for a number of years, it seemed almost an injustice to exact a royalty from the constructor or user. There was a simplicity about the device that seemed to remove it from the class of inventions. On consideration, this will be found a false view; and if the merits of the case be examined, it will be found that the most equitable decision has been rendered. The simplicity and obviousness of the device may seem extreme when once it is understood. But the fact that invention was required to devise it is clear, from the fact that it was never thought of until the year 1861. All the work of the inventors of past centuries had not led to the driving of a pipe into the ground for the procuring of water until Col. Green in his crude way did it in camp. This consideration should dispose of any doubts on the subject of inventors. The value of the method is in direct ratio to its simplicity. For the complex, expensive, and dangerous method of excavating wells, a method requiring expert labor and skill, was substituted a process that any intelligent person could carry out. The work of days was concentrated into a few hours, and the expense for material was almost entirely done away with. It would be difficult to find a more valuable improvement.
After using one for many years, the payment of a royalty might seem a hardship. But its justice will appear when it is remembered that but for such an invention every well in the country would be a dug or drilled one, both involving much expense. If the saving to the people at large that it has effected could be computed, it would reach many millions of dollars. If one-tenth of this amount were collected as royalties, the owners of the Green patent would receive a princely sum. Owing to the wide and individual use of the drive well, it is safe to say that but a small fraction of royalties really due will ever be collected.
The favorable treatment of the patent by the Supreme Court, it is fair to assume, was caused by some such considerations. That tribunal is at liberty, and is obliged in many cases, to take cognizance of just such views as we have presented, in order to determine the originality of an invention, and the consequent extent of its claims. Utility and the revolution the invention effects in human industries are legal bases for judgment on the scope of patents.