Scientific American, v 63 (ns), no 22, p 341, 29 November 1890
Patent Legislation for a Century
The present century has been the time, and the United States the place, in which invention has made its greatest strides. The current year has witnessed the centenary of the United States patent system. It seems, therefore, a fitting time to review the history of the country's patent system, and to contrast the condition of invention at the beginning and at the close of the century respectively. An interesting paper covering this ground appears in the current number of the Quarterly Journal of Economics. The author, Mr. Chauncey Smith, displays familiarity with his subject, and the paper bears the marks of research.
It has been said that the current year is the centenary of the patent system in the United States. The beginning of the patent legislation of the United States was an act passed on April 10, 1790, under the power given to Congress in the Constitution, "to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This act, which was entitled "an act to promote the progress of useful arts," provided that patents might be granted for the invention or discovery of any useful art, manufacture, engine, machine or device, or any improvement thereon, not before known. This provision has not been much changed in the interval, the language of the existing statute extending to any new and useful art, machine, manufacture or composition of matter, or improvement thereof. Applications for patents were to be made to the Secretary of State, the Secretary of War, and the Attorney General. The right secured by a patent was "the sole and exclusive right and liberty of making, constructing, using, and vending to others to be used" the invention or discovery for the period of fourteen years. A description of the invention in writing and a model of the same where the case admitted of it were required. The patent was made prima facie evidence that the patentee was the first inventor, and that the invention was truly described. This provision marked a change from the English system, and has been retained ever since. The act contained no limitation of its benefits to citizens of the United States, but granted its privileges to "any person."
Another act was passed in 1793. This act limited the benefits of the law to citizens of the United States. Applicants were required to make oath that they believed themselves the true inventors. The administration of the law was committed to the Secretary of State and the Attorney General. In 1800 the right to take out patents was extended to aliens who had resided for more than two years within the United States, and the right was also extended to the legal representatives of an inventor who had died before a patent was issued to him. In 1819 an important step was taken by giving the circuit court of the United States jurisdiction of actions for the infringement of patents, with power to grant injunctions. In 1832 the practice already established was recognized of reissuing patents to correct mistakes.
In 1836 the previous acts dealing with the subject of patents were repealed, and a new and comprehensive act was passed. This act created the Patent Office and attached it to the Department of State. It has since been attached to the Department of the Interior. The office was placed under the charge of a commissioner, who was to superintend and perform all duties connected with the granting of patents. Foreigners were placed by this act on the same footing as citizens, except as to the amount of the fees to be paid. The conditions entitling to a grant were the same, substantially, as under the act of 1793. Provision was made for an extension of the original term of fourteen years for seven years additional in case it should appear that the patentee had, without neglect or default on his part, failed to obtain a reasonable remuneration for his time, ingenuity, and expenses. The authority to grant extensions was at first vested in the Secretary of State, the Commissioner of Patents, and the Solicitor of the Treasury, but in 1848 the authority was vested in the commissioner alone. Applications for extensions became very common, and at length so much opposition to this feature of the law was developed that in 1861 the law was changed. Patents were thereafter to be granted for the term of seventeen years, and all extensions were prohibited. Another feature of the act of 1836 provided for the registration in the Patent Office of assignments of patents, and of grants of exclusive rights to an invention in specified territories. But perhaps the most valuable feature of the act of 1836 was the power given to the commissioner to decide whether an applicant was entitled to a patent under the provisions of the statute. The commissioner, in the discharge of this duty, was obliged to make examination to determine that the invention had not before been made in this country, that it had not been anywhere patented or described in a printed publication, that it had not been in public use or on sale with the applicant's consent or allowance prior to the application, and that it was sufficiently important and useful. Such an examination had not before been required, either here or abroad, but it has since been retained here and has been adopted in other countries. To provide for facilities for examinations the act appropriated $1,500 for the establishment of a library of scientific books, which has since grown to 54,000 volumes. The act of 1836 gave the Patent Office the power to investigate and decide claims of priority between several inventors. In 1837 patentees who had made too broad a claim, and whose patents would have been void under the previous law, were allowed to file disclaimers of portions of the original claim, and their patents were made good for all they were entitled to claim, even though no disclaimer had been made, unless they unreasonably failed to make proper disclaimers. These provisions added to the security and value of patent property.
In 1839 an act was passed which provided that no use of an invention by the public, either with or without the consent of the inventor, should impair his right to a patent unless the use had been for more than two years, or upon proof of abandonment. This gave the inventor the privilege to permit the use of his invention or sell the right to use it without losing the right to the patent where the use or sale was not for more than two years, but, on the other hand, where this time was exceeded, the inventor lost his patent even where the use or sale had been without his knowledge or consent. This legislation may be said to have determined the character of the American patent law. With the exception of the amendment already referred to as having been made in 1861, extending the time from fourteen to seventeen years, no important changes have been made since, though the law had a general revision in 1870 and 1875.
The growth of the patent system in the century which has elapsed since the first patent law was passed in 1790 has been enormous. Only three patents were granted the first year, and only fifty-five were granted under it before its repeal in 1793. The whole number of patents granted before 1800 was 256, a little more than one half the number now issued weekly. The number issued in the last ten years, from 1880 to 1890, was 195,454, or more than 800 times the number issued during the first ten years of the patent law. During the forty-six years prior to the passage of the act of 1836 the number of patents granted, exclusive of reissues, was 9,957, a number now exceeded in a period of six months. The number of patents issued by the office in 1836, after the date of the act establishing it, was 109, and the number for the full year of 1837 was 436. The whole number of patents issued in 1889 was 24,083. In 1836 eight persons made up the force of the office, and the aggregate of their salaries was $11,550. The expenses of the office for the first full year were $33,506.98, and the receipts $29,289.08. In 1889 there were more than 560 persons employed in the office. The receipts amounted to $1,281,728.05, and the expenses to $1,052,955.98, leaving a net surplus of $228,772.07. The whole number of patents granted since 1836 was 431,541. According to Mr., Smith's calculations, in fifty-four years the number of patents increased more than fifty-five fold, the receipts more than forty fold, the expenses more than thirty-two fold, and the number of persons employed seventy fold. The increase has been truly wonderful. It speaks volumes for the growth of invention and the application of science to industry in the last century, and more particularly in the last half century.
In addition to recounting the history of the patent system in the United States, the writer discusses the question as to the utility of the system. One would suppose that a mere statement of the results achieved under it would afford a sufficient answer to this question. But it is known that hostility to the patent system crops up frequently, and that bills are constantly presented in Congress providing for the repeal or modification of particular features of the act. Indeed, Mr. Smith mentions the fact that he was assured some years ago by a member of Congress from Massachusetts that a large number of the members of the House of Representatives were ready at any moment to vote for the repeal of the law as a whole. By some the objection is made that the patent law does not stimulate inventions, but that inventors are impelled by a spirit of invention which they cannot themselves resist. In answer to this the writer, while recognizing that the greatest inventions and discoveries have been actuated by motives independent of the hope of pecuniary reward, yet points out that the great number of people who take out patents in the United States are stimulated by the hope of gain, and act in every way as if they were. This really goes without saying, as far as inventors themselves are concerned, and it is even more true as regards capitalists, who nowadays, as Mr. Smith points out, are almost as necessary to the introduction of inventors as inventors themselves. The capitalists as such certainly have not any motive to interest themselves in new inventions but the hope of gain which the patent laws afford a chance of securing. The evidence of accomplished facts is certainly all in favor of the doctrine that patents do stimulate invention, for, as the writer points out, the three countries which in this age of invention have contributed the greatest number of radically new and highly valuable inventions are the three countries which have longest secured to inventors a right to their inventions, viz. England, the United States, and France.
The Patent Sales Agency Business
Those of our readers who have taken out patents within recent years know something of the extent to which inventors are besieged by various individuals and firms from Maine to the Pacific coast, who are anxious to negotiate the sale of patents, and whose circulars, letters, pamphlets, etc., are many of them skillfully designed to make the unhappy inventor, whose name and address has just appeared in the Patent Office Gazette, believe that there are plenty of people who are anxiously waiting for an opportunity to buy his patent and pay fabulous amounts for it, only these persons must be found.
The finding of them is what these patent salesmen propose to do. Their proposition is usually to take the patent in hand and find a purchaser for it, charging a percentage for their services. But the main feature of the business seems to be the fact that the inventor is always required to pay a certain amount of cash, varying with different concerns from five to twenty dollars, as his part of the expense of advertising, traveling, correspondence, etc. It is perfectly safe to say that in a vast majority of cases this payment required of the inventor upon placing his patent in the agent's hands pays not only a part, but all the expenses involved, and leaves a handsome profit to the agent; in most cases probably all the profit he seriously looks for from the transaction.
Sometimes, after a year or so has passed by, the anxious inventor, who has invested some of his cash in "advertising expenses," is informed that the arduous labors of the agent have at last resulted in the finding of a man who wants the right to make and sell the invention in several States, but can only pay for it in land upon which there is some sort of encumbrance to the amount of say fifty to a hundred dollars, varying in different cases. If the inventor will forward the amount to the agent, the sale will be immediately closed.
The significant feature of the whole business is, says the American Machinist, and which, from the long experience of the editors of this paper with this case of people, they can verify the truthfulness of, i.e., that the inventor is in every case required to pay something for which he has no assurance of satisfactory return, and it is easy to see that with the vast number of patents being taken out, many of them by people more or less unused to the ways of the world, the income of these selling (?) agents must be considerable if they succeed in getting payments of small amounts from only a small fraction of the total number of patentees.
The Man with a Patent
The New York Sun relates the following story: "There were only half a dozen people in the palace car all day long, and after dinner, when the man who had been sleeping and reading in seat No. 12 came over to me for a chat. I welcomed him with open arms. He said his name was Saunders, and that he had a patent or improvement on some part of a locomotive. He was going through to Cincinnati to have it perfected or adopted, or something of the sort. He had been in partnership with a mean man -- a man who had tried to swindle him out of a fortune. To get even, he had stolen the patent and run away. He had it with him in a valise. That was all he said just then, but later on he confided to me the fact that at a town about 30 miles away this wicked partner of his might possibly be on hand to board the train and attempt to wrest the treasure from his keeping. He wanted my advise, and I offered to take charge of the valise. He thanked me with great effusiveness, and as we approached the town he shut himself into the smoking compartment.
"As the train drew up I saw an old acquaintance on the platform, and while we were talking a posse was hunting the train for my friend. They didn't find him, as he had dropped off and struck out for the country. I went to Cincinnati, taking his valise along, and although I was there four days he didn't show up. I arranged to leave it with the landlord, and it was carried to the office, to be opened by a meddlesome clerk. Instead of a patent, it contained wedges, drills, a brace, fuse, and other neat little devices for successfully working a burglar's job, and it cost me two days of the hardest kind of talk to satisfy the chief of police that I wasn't in it. I had ridden over 100 miles with a full-fledged burglar, and one who had made his mark, and I must say he was a better talker and more of a gentleman than any governor I ever met."
The Centennial of the United States Patent System
The wealth and economic prosperity of our country are so largely due to the system of patents, by which our inventors have been encouraged to pursue their unselfish labors, that among the many centennials which have been and are to be commemorated, the one hundredth anniversary of our patent system should not be overlooked. It is proposed to celebrate it at Washington, D.C., in April 1891. A large and influential meeting in furtherance of the idea has been recently held in Washington. Although a year will have elapsed since the true centennial, it is not too late to fittingly commemorate America's industrial progress. The celebration will really be within the 101th year of the system's life.
On July 31st, 1790, Samuel Hopkins was awarded a patent for making pot and pearl ashes. On August 6 and December 18 of the same year two other inventors received patents for inventions. Those three patents were the first year's work of the patent system. The business increased rapidly, for in 1791 we find no less than thirty-three patents issued. The next year 1792 was what may be termed an off year, only eleven patents appearing on the record. These early records afford a basis for an impressive contrast. In a single week at the present time between four and five hundred patents are issued, and the roll of patentees is approaching a half million.
It is, therefore, fitting that the centennial of the patent system should be made the occasion of proper celebration. Without the mechanical progress of the last century it is hard to say where America and the world would stand. The increase of population has demanded enormous supplies of food and general necessaries. Modern life has tended to concentration in cities. It is only by the inventor's efforts that the limited number of farmers and other direct producers have been able to feed and clothe the multitudes of dwellers in the great centers. The whole modern system of existence depends on the inventors. Without them there would be no centralized distribution of people, the suburbs of a city would for all practical purposes be isolated from it, and the populace would be distributed over the surface of the land and live, Chinese fashion, by their own direct efforts. The American inventor has made his influence felt everywhere and has exercised a world-wide influence. The proposed centennial, in view of what he has done, will be an international epoch. American inventions are introduced everywhere, and the most remote countries must regard the United States as the birthplace of much that has become essential to their very existence.
New Patent Selling Trick
The latest trick of pretending patent sellers is to write to the patentee that it will be necessary to send them 180 copies of the new patent in order to effect a sale. If the patentee does not happen to have the 180 copies on hand, they (the sellers) will obligingly obtain them. If not convenient to send the full amount then, the patentee should remit say $9 in part payment for the copies, on receipt of which amount the sellers pretend they will go ahead and sell the patent. Many patentees are thus duped. They send the money, the sellers put it in their pockets, and that is what they live upon.