Scientific American, v 60 (ns), no 5, p 64, 2 February 1889
Complaints Against the Patent Office
A series of articles was lately published in the New York World, containing a long string of complaints and charges against the employees of the Patent Office. They were accused by inference, if not directly, of carelessness, neglect of duty, favoritism, corruption, fraud, bribery, deceit, malice, injustice, systematic efforts to swindle, persecute, and defeat inventors in their endeavors to secure patents; together with other irregularities. But no individual names were mentioned. These revelations were backed up by a curious and interesting collection of letters, opinions, and criticisms given by inventors, patent solicitors, and patent lawyers; some of whom delivered bitter complaints, because the Patent Office had been stupid or failed to do or grant what they wanted; nearly all expressed a belief in the necessity for reform in the management of the bureau. The published matter formed a grand howl, or newspaper earthquake of the most sensational kind.
We are glad to be able to say, however, the Patent Office has survived the shock; the officials are still at their posts; they are not even begrimed with the smoke; and the grand old machine continues to grind out every week its immense quota of five or six hundred patents for new inventions; in reward for the genius of inventors, by which the industries of the country are so constantly diversified, increased, improved, and maintained.
But there are no difficulties at the Patent Office, no opportunities and no practice of knavery, as the World has described? Do the officials never act in bad faith toward inventors? Are they always pure and faithful? Do they never purposely delay business, abridge claims, or give real cause for complaint?
It would be strange if they did not. They have great power. They are, for the inventor, his judges and his jury. Moreover, they are mortals, made of clay like the rest of us. They are hunted, badgered, and tempted, from morning till night, by a crowd of anxious applicants or hungry agents, asking for decisions or complaining of those already made. Each wants his case taken up at once, ahead of all others. Many are suspicious persons, who imagine the examiner is trying to steal his invention or defraud him of his rights. There is no end to the mean and irritating things such individuals will say or do. Some agents are so self-sufficient they consider themselves insulted if an examiner calls attention to gross blunders in their papers. In short, the time, patience, and skill of examining officers are often subjected to the severest trials, under which, and the lack of proper facilities for making accurate searches, and the pressure of accumulated work, it is no wonder if many errors, wrong decisions, and irregularities should take place.
Yet, as a whole, it is doubtful if any branch of the public service is so well conducted or shows such splendid results as the Patent Office. The examining officers, as a general rule, are faithful and exemplary men, able, intelligent, and as careful as the circumstances in which they are placed will allow. They do the best they can. But the system under which they labor is defective and leads to endless troubles.
The present law, which aims to provide for a thorough scientific and legal examination of each application for a patent, was passed more than half a century ago, when the sciences and mechanic industries were in their infancy, when inventors were few, patents and new inventions scarce.
More patents are now solicited in a week than were then granted during a year. It was then possible for the government to examine and decide each case with care and deliberation. To do so now is almost out of the question. More than thirty-five thousand applications for patents were made last year. The number steadily increases with the growth of the population. Already there are three thousand seven hundred classifications of inventions, sub and general, in the Patent Office.
The duty of examiners is first to see that the patent papers are correct in form, clearly illustrate, describe and claim the invention; and, second, to make sure that the device claimed has not previously been patented here or abroad, nor described in any printed publication in any part of the world. If the invention has been previously patented or described, then the patent must be denied, for it would be invalid if granted. It is obviously impossible, with the meager force of examiners now employed, to make a legal and scientific examination of thirty-five thousand applications a year. Even the classification and printing of our home patents is so very defective, and the knowledge of them so incomplete, that the examiner cannot be certain of the correctness of his searches among them; while as to foreign patents and other publications, only a superficial glance is, in some cases, attempted. This poor, shadowy, imperfect, and almost useless business of official examination grows necessarily worse and worse every year, and tends toward self-destruction. Would it not be an improvement to sweep it away altogether? Would it not be a simpler and better method to let each inventor become his own examiner? If, after examination, he asks a patent, let it be forthwith granted. Relieve the present examining force from the duty of determining whether it is best to grant a patent or not, and let the inventor examine and decide the matter for himself. It is just as practicable for him to do this as to search the records when buying a piece of real estate.
Let the cost of patent copies be greatly reduced. Let the present examining force be employed to see that the applicant's papers are in proper form, and the records of all previous patents and descriptions of inventions kept well classified and easily accessible. This will occupy their time to the best advantage; and enable them to perform their duties with satisfaction to themselves and all concerned. A modification of the law appears to be imperative, and if made in the direction we have indicated, the delays, litigations, and other hardships to which inventors are now subjected before the Patent Office probably could never occur.
The New Commissioner of Patents
The President has appointed Mr. Charles E. Mitchell, of Connecticut, to be Commissioner of Patents. Mr. Mitchell is a man of the highest ability, wide influence, exalted character, clear judgment, a successful and experienced patent lawyer, and prompt and vigorous in action. No one could be better qualified for the duties of the Commissionership. Mr. Mitchell is about 53 years of age and a native of Bristol, Conn. He is a graduate of Brown University. He has occupied several important public positions, among them that of State Senator, but for the most part his energies have been devoted to the practice of patent law. His nomination as Commissioner of Patents gives general satisfaction. It is conceded on all sides that under his administration the affairs of the Patent Office will be ably conducted.
A New Assistant Commissioner of Patents
The President has appointed Mr. Robert J. Fisher to be Assistant Commissioner of Patents. Mr. Fisher at the time of his promotion was a member of the Board of Appeals in the Patent Office, to which position he had risen from subordinate grades of official duties, all well performed. Mr. Fisher is a man of marked ability and long experience in the practical workings of the patent laws. His appointment to the assistant commissionership gives very general satisfaction among all who have dealings with the office. He will be able to render efficient aid to Commissioner Mitchell. Under the guidance of these two excellent officers, the administration of patent affairs is likely to be much improved and rendered acceptable to the public.
Delay in Granting Applications for Patents
On April 16, 1889, two patents were granted to Edward Weston, which bid fair to be basis of many and extensive suits for infringement. They illustrate the evils of the present system of granting patents, as regards the delay in concluding the proceedings. On September 22, 1883, the original applications for this invention was filed as for a single structure, and eight weeks later a division was made so as to include the matter in two applications. This was nearly seven years ago. It would be impossible to give any estimate of the thousands of dynamos and motors that have been constructed with the armatures described and claimed in these two patents. Every day sees the factories all over this country turning them out by the wholesale. In the face of this testimony to their merit, it seems that a radical defect must exist in Patent Office proceedings for nearly seven years' delay to have occurred in granting them. Six years have been devoted largely to interference proceedings to settle whether the patent should be awarded to Edison or to Weston. And now, after all that contest, the same battle will have to be fought over again in the Federal courts.
It may well be asked what good is attained by judicial contests before the Commissioner of Patents. The infringement suits brought under a patent that has been contested under interference proceedings in the Patent Office are not accelerated by the contest before the examiners of interferences. The Federal courts attach little weight to Patent Office decisions. As the present case stands, the patentee has been barred for over six years from bringing suit under apparently a most meritorious patent. It is true that the triumph has come, but the years that have elapsed have robbed it of much of its value. Many old time users of the invention, who should have been prima facie infringers, are out of the field. With present infringers, whose name is legion, if the patents prove valid, a battle of probably greater duration has to be fought.
It would be far simpler for the Patent Office to act in the registering faculty, rather than in the judicial. Abandoning the latter functions, it should grant patents to any applicant, and let the battles of priority, like those of infringement, be fought in the Federal courts. This would be a move in the right direction, and in that of simplification. It would tend to make attorneys more careful in drawing up claims, and would multiply immensely the number of examiners, for every inventor personally would be his own examiner, and would search the records in order to waste neither time nor money in procuring a worthless patent, or else he would employ competent attorneys and experts to do the same for him.
The Patent Office the Friend of the Inventor
In the recent case of Donovan, on appeal, the Hon. Benson J. Hall, Commissioner of Patents, laid down the following excellent doctrine, which it is hoped the examiners will keep in mind:
"The rules of the office, particularly rules 68 and 139, point out that at all times in the investigation of an application, and in the progress of appeals, it is the duty of each tribunal having jurisdiction of the case to see to it that the inventor shall secure a patent for whatever patentable matter may be shown in his application. As has been frequently stated by me in decisions, the office must put itself in the attitude of a friend, and not of a litigant with the applicant, and see that he secures every right that belongs to him. Not only is this true of the rules cited, but Congress has seen proper to take especial pains to provide that whenever an applicant, in consequence of any inadvertence or mistake in the framing of his specification of claim, has failed to secure that to which he is entitled, or his patent is inoperative or invalid either by reason of having claimed too much or too little, he may have the proper correction made by a reissue, which will secure him the precise invention to which he is entitled.
"Now, unquestionably, if under rules 68 and 139 it is the duty of examiners-in-chief and the Commissioner to suggest and recommend, in order that an applicant may receive letters patent for subject matter not involved in the appeal, it must be the duty of the primary examiner in the examination of the case made by him to point out and recommend the same thing. I do not mean by this that it is the duty of the examiner to become an agent or an attorney for the applicant; but I think in all cases when he is satisfied or believes that the application contains patentable matter which is not claimed, but which he has reason to believe the applicant is seeking to cover, it is his duty to advise the applicant briefly and specifically, precise as the examiners-in-chief and the Commissioner are authorized to do, as above stated. By acting upon this principle, all of the tribunals of the office become friendly to the applicant, and enable him to clearly see and understand the views of the office as to the nature and patentability of the invention described. Such practice would undoubtedly tend to lessen the correspondence and conflicts which arise between applicants or their counsel and the office."
An Evil under the Sun
The Southern Lumberman thinks that one of the most prolific sources of patent lawsuits is the use of mechanical or technical terms and expressions by alleged patent attorneys that may mean nothing or may be construed two or more ways. As a general rule, mechanics and inventors are not thoroughly versed in law English as it is written, and will sign specifications containing words and expressions the legal meaning of which they do not fully understand. Many of the so-called patent attorneys, who write the specifications which form a part of every application for letters patent, are not at all familiar with the real meaning of the terms they use, and not one in a dozen is a practical mechanic. A few years' experience as an "examiner" in the Patent Office is considered equal to a graduating diploma from the greatest technical school on earth. A sap-headed son of a politician may get a situation as "examiner" and be discharge for incompetency, but, all the same, he will advertise himself as a "solicitor," and the most prominent line in his "ad" will be: "formerly examiner in the Patent Office." This fellow might, perhaps, have presided for a while as "examiner" of "hay rakes" in the division of agricultural implements, and yet he will charge and collect a fee from a poor inventor for writing the specifications for the most complicated woodworking machine or the latest electrical invention with fewer conscientious scruples than an army mule would feel in eating a peck of stolen oats. Some philanthropist could do the mechanical world a favor and win a claim to a starry crown in glory land by publishing a dictionary of mechanical terms in handy, cheap, pocket style, giving brief and accurate descriptions of every word and term as construed by the courts.