REPORT OF THE COMMISSIONER OF PATENTS FOR THE YEAR 1869
UNITED STATES PATENT OFFICE
January 27, 1870
In accordance with the act of March 3, 1837, which requires the Commissioner "to lay before Congress in the month of January, annually, such information of the state and condition of the Patent Office as may be useful to Congress or the public," I have the honor to submit the following report of the business of this office during the year 1869.
The receipts and expenditures for the year, and the condition of the balance in the Treasury standing to the credit of the patent fund at its close, are shown in the following statements:
No. 1. Number of applications for patents during the year 1869 19,271 Number of patents issued, including reissues and designs 13,986 Number of applications for extensions of patents 153 Number of patents extended 108 Number of caveats filed during the year 3,624 Number of patents expired during the year 2,083 Number of patents allowed but not issued for want of final fee 997 ====== Of the patents granted there were to citizens of the United States 13,442 Subjects of Great Britain 294 Subjects of the French Empire 91 Subjects of other foreign governments 159 _______ 13,986 ======= --------- No. 2. -- Statement of moneys received during the year 1869 Amount received for applications, caveats, etc. $632,700.65 Amount received for copies and for recording assignments 60,445.16 ___________ 693,145.81 ========== --------- No. 3. -- Statement of expenditures from the Patent Office fund for 1869 Cash paid for salaries and for miscellaneous contingent expenses $486,430.74 ========== ------------ No. 4. Amount to the credit of the patent fund January 1, 1869 $324,330.57 Excess of receipts over expenditures during the year 1869 206,715.07 ___________ Leaving a balance on the 1st of January, 1870 of 531,045.64 ========== ----------- No. 5 -- Statement showing the business of the office for thirty- three years, from 1837 to 1869, inclusive Year Applica- Caveats Patents Cash Cash tions Filed Issued Received Expended 1837 435 $29,289.08 $33,506.98 1838 520 42,123.54 37,402.10 1839 425 37,260.00 34,543.51 1840 765 228 473 38,056.51 39,020.67 1841 847 312 495 40,413.01 52,666.87 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 1856 4,960 1,024 2,502 192,588.02 199,931.02 1857 4,771 1,010 2,910 196,132.01 211,582.09 1858 5,364 943 3,710 203,716.16 193,193.74 1859 6,225 1,097 4,538 245,942.15 210,278.41 1860 7,653 1,084 4,819 256,352.59 252.820.80 1861 4,643 700 3,340 137,354.44 221,491.91 1862 5,038 824 3,521 215,754.99 182,810.39 1863 6,014 787 4,170 195,593.29 189,414.14 1864 6,972 1,063 5,020 240,919.98 229,868.00 1865 10,664 1,937 6,616 348,791.84 274,199.34 1866 15,269 2,723 9,450 495,665.38 361,724.28 1867 21,276 3,597 13,015 646,581.92 639,263.32 1868 20,420 3,705 13,378 684,565.86 628,679.77 1869 19,271 3,624 13,986 693,145.81 486,430.78
It will thus be seen that with average receipts and expenditures not greatly varying from those of the past year, the net income of the office will be about $200,000 per annum, and that there is now standing to the credit of the patent fund a balance of over $530,000.
This fact should be borne in mind in connection with any suggestions relating to increase of salaries or facilities for performing the work of the Office.
The Patent Office earns all the money which it expends or proposes to expend; and as the inventors give in the form of useful invention quite as much as they receive by way of protection; as they are, moreover, taxed as citizens, as manufacturers, and as vendors of their patents and inventions, it would seem to be unjust to tax them again, in the form of additional fees, for the support of the Government or the payment of the national debt.
The patentee does not pay these fees as a compensation for the exclusive privilege which he receives. For that he makes a full disclosure of his invention for the future benefit of the nation. The fees are intended solely to pay the necessary expenses incurred in the examination of the invention and in the issue of the patent. In all other countries, the fund derived from the patent fees is applied to the advancement of science. The fees which are paid in this country are less than in any other, but if they are more than is needed for the expenses of the Patent Office, as presently organized, it is but fair, either that the fee should be reduced, or that the balance should be employed in such increase of the force of the Office, or in providing such publications and appliances, as may increase the ease, thoroughness, and efficiency of the work of examination.
INVENTIONS IN SOUTHERN STATES
One of the most gratifying results of the restoration of peace and of the introduction of a new system of labor in the South is found in the increase of applications for patents from that part of the country. During the past year forty-six patents were granted to citizens of Alabama, eleven to those of Arkansas, five to Florida, sixty-eight to Georgia, eighty-six to Louisiana, fifty-three to Mississippi, forty-four to North Carolina, twenty-four to South Carolina, sixty-nine to Tennessee, forty-four to Texas, eighty-six to Virginia, and thirty-seven to West Virginia.
In the Class of Agriculture the examiner reports that "in 1859 the number of applications from the South, as compared with those from the North, was less than two and a half percent of the whole number. In 1869 the number of applications from the South was increased to over twenty-three percent of all the cases in my class.
What the Pacific Slope and the Great Basin are doing in the way of invention may be inferred from the fact that in 1869 there were granted two hundred and sixty-six patents to California, thirty-nine to Oregon, four to Nevada, two to Washington, ten to Colorado, three to Dakota, one to Idaho, one to Montana, and two to Utah.
GROWTH OF THE PATENT OFFICE
Few persons realize the rapid growth of the Office and the annual accretion of material. The models increase at the rate of one hundred square feet per week, or five thousand square feet per annum; the files at the rate of four hundred cubic feet; the printed specifications at the rate of four hundred and twenty-five cubic feet; the books in the library at the rate of one hundred and sixty lineal feet of shelving, and the copyright books at the rate of one hundred lineal feet. There will be twenty thousand more cases to be examined this year; and if the applications made in the year 1870 should not exceed those of 1869, they will still add, with models and drawings, twenty thousand new cases to be inspected by the examiners of future years.
It must soon become a serious question to determine what disposition is to be made of the models. In a vast number of cases no such illustration is required; the inventions are so simple that they can be readily understood by good drawings. Models soon become broken and inoperative, and in some cases have been altered surreptitiously, so as to become false witnesses.
We may take just pride in our national museum of the mechanic arts, but it is questionable whether this museum can be allowed to grow at the rate of five thousand square feet per annum.
A remedy for the difficulty will probably eventually be found in dispensing with all models, except when, in the discretion of the Commissioner, such mode of illustration is absolutely necessary. This would relive inventors of a very considerable tax, as the preparation of the model is usually the most costly part of the application.
It is also a question for serious consideration, whether the rejected applications should be used as references to defeat new applications. Many cases may have been rejected because the devices were impracticable and useless, or because they in turn were anticipated by others. Since their rejection these cases have been kept in pigeon-holes not open to public inspection. The public has taken nothing by the description of the alleged invention, and probably in the great majority of cases the manufacture of the article has not been commenced. Such mere descriptions or sketches of an invention not reduced to practice or made accessible to the public, but kept in the library of a private person, would not destroy a patent. It is not perceived that they should have this effect because the pigeon-hole in which they are entombed is in the Patent Office, rather than elsewhere.
To reject applications upon patented or published cases and pending applications only, would probably protect the public from real injury as well as by the present system, while it would diminish the labor of the Office in the work of examination fully one-third.
Otherwise, although the number of applications to be examined be the same from year to year, the work of the examiner is constantly increasing, since each year's accumulations are added to his portfolios. A gradual increase of the examining corps from year to year becomes, therefore, absolutely necessary.
QUALIFICATIONS OF EXAMINERS
Although ample means are provided for the correction of an erroneous decision of an examiner when adverse to the grant of letters patent, there is no check to his action when favorable to the applicant, except the general authority lodged in the Commissioner. But it is impossible to revise the cases that are passed for issue except in special instances. It becomes very important, therefore, to secure competent men for positions of such responsibility. An examiner should be a man of great patience, industry, and honesty, of varied and yet thorough mechanical and scientific attainments, with a good knowledge of patent law, and a mind capable of the nicest discrimination. Though many men offer themselves for the position, but few are fit to fill it. As a rule, it is entirely safe to say that no man should be appointed a principal examiner who has not served as assistant, thus becoming thoroughly conversant with the practice of the Office, and demonstrating his capacity. But the demand for qualification does not apply to examiners only. So numerous are the applications for patents, that assistant examiners, and even examiners' clerks, are charged with a portion of the duties of examination as soon as it is possible thus to employ them.
Other clerical positions in the Office requires in the incumbents a knowledge of the different classes and machines that many men do not possess, although they may be otherwise competent as clerks.
It is obvious, therefore, that the ordinary rules regulating the appointment of clerks in other Bureaus cannot safely be followed in this.
These considerations have led to the adoption of competitive examinations as the basis of nominations for office. It may be conceded that, by this method, in exceptional cases, a competent man may be kept out of office, but an incompetent one can very rarely come in. To lessen the chances of error, great care has been taken in adapting the examination to the work to be done, so that theory and practice must both be combined to achieve the highest measure of success. Two of these competitive examinations have been held for the position of second assistant examiner. At the first, seventeen candidates were present; at the second, twenty-four. As an illustration of the working of the system, the following table will show the antecedents of the four candidates who stood at the head of each examination. From this it will be seen that the young and old, the practical and theoretical, those in and those out of the Office, are very fairly represented:
First Examination No Age Where Education Practical experience Army or Previous born Navy Office service service 1 22 Ohio High Sch 3 1/2 yrs machinist None 1 month 2 50 Va Colleg. 32 yrs engineer 8 yrs 21 months 3 20 Maine Colleg. 2 yrs cabinet maker None 2 months 4 28 W.Va. Academ. 8 yrs printer 2.5 yrs 2 years Second Examination No Age Where Education Practical experience Army or Previous born Navy Office service service 1 40 Verm. Colleg. 5 yrs None None 2 31 Engl. Com. Sch. None 2.5 yrs 2.5 yrs 3 37 Penn Colleg. None 1 year 2 months 4 33 Conn Colleg. Leather manufactory None None six months
To secure impartiality the examination was conducted by persons who had but slight acquaintance with the candidates, the latter being known only by private marks.
One hundred questions were put, copies of which were furnished to each candidate. The answers were in writing, and they were examined and marked, and the relative averages made up before the names of the candidates and their work were identified.
The list furnished by these examinations has been used in supplying such vacancies as have occurred, and the result upon the Office at large, and especially as shown in the character and capacity of new employees, has been most gratifying.
THE AMERICAN SYSTEM
Letters-patent for invention in this country are in the nature of a contract between the public and the original and first inventor, whereby he receives the exclusive privilege of exercising his invention for a limited time, as a compensation for his time, ingenuity, and expense in perfecting the invention and reducing it to practice; for the communication of it to the public, and for their right to use it freely when the exclusive right of the patentee expires.
An invention is property of the highest order. Whatever may be said of the right which man may acquire in the soil, by his occupancy of it, or in the materials with which he works, and in the profits of his barter, it would seem to be a self-evident proposition that he is the owner of that which he creates; and that when his ideas. no longer vague or dreamy speculations, have taken useful form and been reduced to practice, not the abstract ideas, but the concrete and embodied principles are his own, to dispose of as he will.
As it is impossible to pay for useful inventions in money, we pay in time, which the inventor must turn into money if he can.
To insure the fairness of this transaction, under the patent laws of the United States, an examination is made into the novelty of the invention prior to the granting of the patent. This investigation includes an examination of the patents already granted, of the applications rejected, of the foreign patents, printed copies of which are furnished to us, and of the text-books and cyclopedias. In making the examination, reliance is placed for the most part upon the drawings; the text and models being resorted to only where the drawings are obscure and need further explanation.
As nearly one hundred thousand patents have been granted, and fifty thousand applications have been rejected, in this country alone, it is manifest that this examination is not an easy task. It would be impossible to make it without a careful classification of the subjects of invention, and without the assistance of trained skilled examiners. With these appliances, it is for the most part accurately made at a cost of only fifteen dollars for each application.
I do not hesitate to say that such an examination, made by skilled, sworn, and impartial experts, is more thorough and satisfactory than it would be if made at much greater cost by solicitors, who made it in the interest of their clients.
Accordingly, the history of patent litigation will prove that but few patents have been held to be void by reason of the existence of prior inventions, the knowledge of which was within the reach of the Patent Office. The great source of litigation is the conflict upon the issue of infringement, or the effort on the part of the inventor to carry the patent beyond the limits assigned to it by the Office at the time of its issue.
However good the patents may be, as representing an invention of undoubted novelty and technical utility, doubtless many of the inventions covered by them prove worthless upon practical test. The number of useless inventions is, however, much less than is commonly supposed.
Our patent laws have proved such a stimulus to invention, and have fostered so many valuable improvements, that we can well afford to patent some trash. A patent for a useless contrivance does but little harm, if it carefully defines the invention, since men will neither use nor steal that which is good for nothing. It must, however, be borne in mind that many good inventions are not developed for want of means, and many are laid aside because, although good and useful, others, their contemporaries, are so much better and cheaper that they catch the public eye and secure the market.
Whenever the need of a new invention is suggested, the Patent Office is inundated with the applications of those who attempt to supply the demand. Some of these are crude, but suggestive of improvements, and very many are useful. Some few, however, in each class will probe to be the best and cheapest, and these alone will come into notice to the exclusion of others. The protection afforded by the patent and the hope of reward have proved the incentives to invention, and the public, enabled to choose from the many devices, obtains the best thing.
Of course, the larger number of patents now granted are for improvements, and for new combinations. Some of these are doubtless trivial, while many are of real benefit. The issue of patents for mere technical combinations is mainly due to the present system of patent soliciting.
Where establishments are organized for the purpose of procuring patents, they are apt to become more solicitous about the number than the quality of those which they obtain. This tendency is aggravated by those who solicit patents upon contingent fees, or who, without special training or qualifications, adopt this business as an incident to a claim agency, and press for patents as they press for back pay and pensions. Such men are often more desirous of obtaining a patent of any kind and by any means than they are of obtaining one which shall be of any value to their clients. Inventors are often poor, uneducated, and lacking any legal knowledge. They desire a cheap solicitor, and do not know how to choose a good one. They are pleased with the parchment and the seal, and are not themselves able to judge the scope of value of the grant. Honest and skillful solicitors, with a thorough knowledge of the practice of the Office and of patent law, and who are able and willing to advise their clients as to the exact value of the patents which they can obtain for them, may be of much service to inventors. There are many such, but those who care for nothing but to give them something called a patent, that they may secure their own fee, have in too many instances proved a curse. To get rid of their client and of trouble, they have sometimes been content to take less than he was entitled to, while in many cases they have, with much self-laudation, presented him with the shadow when the substance was beyond his reach. Between such men and the Office the strife is constant. They have the ear of their client, and, to some extent, of the public, and much of the misrepresentation of the spirit and character of the work of the Office is directly traceable to this source. It must be said, however, in justice to attorneys, that many inventors are so foolish as to wish to obtain patents for trading purposes, or as a salve to wounded expectations, even when they know that the grant covers nothing of value unless it be combinations which, if never made before, are never likely to be made again, even by themselves.
The patent system in vogue in Europe is substantially one of registration. Patents are granted upon the application of the inventor, without examination into the novelty or utility of the invention. The responsibility is thrown upon him of so framing his specification and claims that they will bear the test of subsequent investigation. This he does at his peril; and if he attempts to make any preliminary examination into the state of the art, he can do it only by the aid of solicitors, whose charges are far greater than the fees for a similar service would be if the work were done by sworn officers. But although no examination is made, the patent fees abroad exceed those which the inventor pays in this country. This will appear from the following table:
Countries Duration of Fees Patent United States 17 years $ 35 Great Britain 14 years 875 France 15 years 300 Russia 10 years 450 Italy 15 years 250 Bavaria 15 years 115 Austria 15 years 350 Belgium 20 years 420 Prussia 15 years 100
That the foreign plan is inferior to what I have called the "American system" of examination, will appear from the following considerations: During the year 1869, 19,271 applications were filed in the United States Patent Office. Of these, 5,285 were rejected finally, and no patents were granted upon them. These constitute about twenty-eight per cent of the whole number. By the English or foreign system all of these rejected applications would have become patents, and 5,285 worthless patents would have been foisted upon the country. But this is not all. Of the 13,986 patents which were actually issued, about 12,500 were rejected in the first instance, and were only finally allowed after material modifications of the specifications or claims. By far the greater part of these modifications were in the nature of limitations of claims, which would otherwise have been too broad. In other words, the applicants for 12,500 of the patents issued during the past year originally claimed too much, and were required to abate their pretensions before the grant was made. If the patents had been issued as they asked for them, they would have deceived the public as to the scope of the intentions and the state of the art.
It may be safely asserted that the large majority of the patents issued from the Patent Office are good and valid; and, if rightly read and properly construed, fairly represent the status of the inventions in the arts to which they relate, so that no one who adopts ordinary precautions need be deceived by them as to the character of the inventions patented. It is a testimony to the thoroughness of the examinations, and to the public appreciation of them, that while no man would buy a lot of land at any price without an examination of the title by competent counsel, thousands of dollars are freely invested in patents upon mere verbal representations and with scarcely a reading of the document. That much loss has been the result of this easy-going confidence may be asserted, but very few such losses occur which ordinary prudence and business sagacity might not have prevented.
Under the foreign system, however, neither patentee nor public can have any confidence in the patent, however carefully it may be construed or scanned. It represents nothing more than the "guess" of the inventor as to what his invention may be, unsupported by any investigation or adjudication whatsoever. It is sometimes said that no patent can be known to be valid until tested by litigation, and that, therefore, a registered patent is as good before litigation as one granted upon examination. To this it might well be answered that frequently neither a first nor a second suit fully develops the state of the art or confers a fixed validity upon a patent. It may also be asserted that the machinery of the courts is not as good for the examination of mechanical questions as that of the Patent Office. A more conclusive answer is, that, by the system of examination, one-third of the applications are not patented at all, and the remainder are so winnowed from the chaff of false claims that are necessarily better than if issued as originally presented. Every process of examination compels the supposed invention to assume to some extent its proper place in the art, and, to that extent, adds validity to the patent that has passed its ordeal.
Indeed, the lack of this examination and the practice of granting patents to the first introducer, as well as to the first inventor of a new improvement, has led to a movement abroad against the whole patent system. Its enemies clamor for its abolition. Its friends demand that it be improved, and the improvement which they suggest is the adoption of the American system. One or two smaller powers have declared against protection by patents; not so much, it would seem, to destroy the monopoly of their own inventions, as to obtain the free use of those made by their neighbors. In the abolition of patents this nation, which during the last year patented more inventions than all the rest of the world put together, would of necessity be the greatest loser. It would give much more than it could receive in exchange.
I doubt if any one can seriously advocate or desire a change of our system, unless it be disappointed applicants, who would rather have bad patents than none, their counsel, who share in their disappointment, and such patent solicitors as hope to increase their fees by making for the inventor, as much cost of fees, that examination which the Office now makes for the moderate charge of fifteen dollars.
A system of registration is, however, at present practically impossible. It would be a simple outrage upon inventors and the public, if either were prevented from making any examination whatever into the state of the art prior or subsequent to the grant of the patent. Until the drawings are printed or copied, so as to be made accessible to the public, this can never be done. This subject is, however, considered elsewhere.
In the infancy of the Office and of the patent law, when the force consisted of the Commissioner and one "examining clerk," and when all examinations were supposed to be made by the Commissioner or under his eye, an appeal was provided in certain cases to a board of examiners or experts, to be appointed by the Secretary of State, as occasion required. Subsequently, the chief justice of the district court, and, at a later period, the associate justices, were vested with the powers and duties of the board of examiners. It is supposed that the justices of the supreme court of the District of Columbia have succeeded to the functions of the former judges. It was further provided that upon each appeal a fee of twenty-five dollars should be paid from the patent fund to the judge to whom the appeal was taken. As this was the only appeal allowed to an applicant from an adverse decision, either within or without the Office, there may have been, originally, some propriety in its institution.
By the act of March 2, 1861, however, it is provided that each case shall be twice examined by the primary examiner; that from him an appeal may be taken to a board of examiners-in-chief, and from them to the Commissioner in person. A fee is provided upon each of these appeals. No mention is made in this act of an appeal to the judges of the local court; and although in the schedule of fees it is said "that all laws now in force fixing the rates of the Patent Office fees to be paid are hereby repealed, and in their place the following rates are established," yet no fee is provided for the appeal from the Commissioner to the judge. It is believed that Congress intended at this time and in this way to abolish this appeal. The judges have, however, asserted their jurisdiction, and the Attorney General has held that the appeal fee is still payable from the patent fund. This appeal is now useless and mischievous.
1. Three appeals are already provided for in every case, viz: A second hearing before the examiner, an appeal to the examiner-in-chief, and another to the Commissioner.
2. There seems to be no propriety in a summary appeal from an executive to a judicial department; in all events, no appeal is allowed from decisions of the Commissioner of Pensions, Internal Revenue, Land Office, Indian Affairs, or of the Comptrollers of the Treasury, notwithstanding the great pecuniary interests involved in their decisions, and the fact that in no one of those Bureaus is such liberal provision made for appeals within the Office as in the Patent Office.
3. As there are four judges, and appeal may be taken to either of them, at the option of the applicant, and as there is no appeal from the individual judge to the court in banc, it has naturally resulted that the judges have made conflicting decisions, and have thus practically overruled each other, so that if this appeal was designed to secure uniformity in the administration of the patent laws, it has signally failed to do so. The nature of the provision was fatal to harmony, and this has been fully proved in its practical operation.
4. The allowance of a fee of twenty-five dollars for each appeal has a tendency to encourage appeals. When there are frequent reversals of the Office, attorneys are induced to appeal from every decision; and the more frequent the appeals the larger the aggregate of fees paid to the judge. In this connection, as a simple matter of fact, it may be mentioned that during the administration of my immediate predecessor forty-two cases were appealed from him to one of the judges, and of these thirty-eight were reversed and only four affirmed.
5. The tendency of such a jurisdiction is to extend itself. Accordingly the judges have every year encroached more and more upon the executive duties of the Commissioner. The law gave an appeal in a few cases. Appeals are now taken and sustained in many; until it is asserted that the judge, and not the Commissioner, is the head of the Patent Office, and that he is authorized to interfere and overrule the Commissioner in any order or rule which the latter may make or attempt to execute.
6. The practical working of this appeal has been so far from protecting the interests of the public, that the fact is, that those innovations in the practice of granting letters-patent, of which the public have justly complained, have been forced upon the Commissioner against his protest by the decision of a judge upon appeal; thus, it has been held in one case that upon an application for a reissue of a patent, new matter might be introduced into the specification and drawings; in another case, that, upon the decision of an application for a reissue, the patent must be dated back to the date of filing, (in one case four years,) thus making infringers of manufacturers who were using the invention ignorantly during all the time that it was locked up in the secret archives of the office, and while it was impossible for them to know of the existence or character of the claims; in another, that the applicant who had filed an application and withdrawn it eight years before, might refile it and obtain a patent for seventeen years from the present date, although the same thing had long since gone into public use and was incorporated in the mechanism of many subsequent inventions; in another, that a patent might be reissued by the patentee after it had been assigned to another; and in another, that he might reissue it after it had expired. Many like instances might be cited, but these specimens will serve to illustrate the mischief of the present system.
7. If it be said that these matters ought not to rest in the judgment of the Commissioner, the answer is:
a. He is selected because of his supposed familiarity with the business transacted in the Patent Office, and is, therefore, more likely to be right than the judge, who is appointed without reference to mechanical knowledge or learning in patent law.
b. The fear that the Commissioner might err, would demand a further provision for an appeal from the judge, and so on ad infinitum, since both are human.
c. The Commissioner of Patents ought to be as competent to decide questions arising in the conduct of his office as are the heads of other like departments; and
d. An appeal from the Commissioner is in fact provided, and would exist, even if the present appeal were abolished; indeed, even the decision of the judge is not final. It is provided in sec. 10, act of March 3, 1839, that the applicant may file a bill in equity in any circuit court having cognizance thereof, "where patents are refused for any reason whatever, either by the Commissioner of Patents or by the Chief Justice," and the complainant may obtain a decree authorizing the Commissioner to issue the patent.
8. Nine-tenths of the cases appealed involve mere questions of fact, upon which the judgment of the primary examiner is as likely to be correct as that of the Commissioner or judge.
9. this appeal causes great delay in the determination of the rights of the parties. The Office has no power to enforce a prompt decision, and causes are thus sometimes greatly protracted.
10. The Office files, models, and papers are taken from the Patent Office to the court-house, and are retained there at the pleasure of the judge. They are thus out of the reach of the Office when wanted, and in some instances have never been returned.
I therefore earnestly request that this appeal be abolished. In this I do but repeat the recommendation of the former and present Secretaries of the Interior Department, of my predecessors in office, of the most respectable solicitors, especially those having the largest business before the Office, and, as I believe, of some of the judges themselves.
No part of the machinery of the Patent Office is of more value than the drawings. It is to these, as has been stated, that reference is made by the examiner, in order to determine the novelty of every new application. Models may be altered or broken, but the drawings remain unchanged. Under the law, the applicant furnishes one drawing for the use of the Office. These are carefully preserved in portfolios, where they can be readily examined. Some of these drawings have been in the Office over thirty years. They are handled every day, and have become much soiled and worn; some are nearly destroyed, and all soon will be. Some provision for their reproduction must be made, or the present system of examination must be abandoned. Indeed, under any system, there must be something in the Office by which new applicants and the public may know what drawings have been attached to the patents that have been already issued; and whether it be examined by attorneys, or by sworn officials, a single copy of a drawing will soon become worn and useless.
Besides this, as there is but one copy of the drawings in the Office, it must be used upon all occasions. It is frequently taken to the examiner's room; it is taken to the room of the examiner-in-chief; it is used before the Commissioner, and must go to the appellate judge. It must be withdrawn from the portfolio whenever a copy is ordered or an applicant wishes to examine a reference.
This multiplies the chances of loss and destruction, and, what is of more importance, it increases the risk of examination; since the very drawing which anticipates a new application and shows the alleged invention to be old, may not be in the portfolio when the examination is made.
To remedy these evils and provide against the gradual but inevitable destruction of the drawings, at least ten copies should be prepared: one for the use of the examiners; one for the record room where the specifications are to be kept, and where it would be accessible to the public; one for the library; two for the English patent office, in return for the duplicate set of printed specifications and drawings furnished to us; and five for sale, when copies are ordered.
The English, French, Italian, and Belgian governments engrave the drawings of all patents at a considerable expense, and are, in this particular, in advance of this country.
At the beginning of this present fiscal year, as no special appropriation was made for this purpose, and the necessity was so urgent, I availed myself of the general authority of the Commissioner to provide copies of the drawings, and of such sum as it was believed might be saved from the amount appropriated for contingent expenses, and entered at once upon the work of reproduction.
For ten copies of the drawings, to be furnished weekly, photography appeared to offer the cheapest and surest method. A contract was made in June last with Messrs. Peters & Rehn, upon terms advantageous to the Office, and the weekly issues have been regularly photographed ever since. The quality of the copies thus produced has steadily improved, as difficulties have been overcome and the work has become more familiar, until it is now performed in the most satisfactory manner both to the Office and the public.
During the year experiments have been made in other methods of engraving and printing the drawings.
The American Photo-lithographic Company offered, if tracings were furnished, to supply, free of further cost to the Office, ten lithographed copies of each of the fourteen hundred drawings of patents granted during the month of June, 1869. This proposition was so favorable, that it was at once accepted, and the work has been done in a very creditable manner.
The firm of French, Langran & Ogilvie, of this city, made an offer for the drawings of May, 1869, at a nominal price, which was also accepted, and the work, which has thus far been well done, is now nearly completed.
The experiments have led to the conclusion that, for a few copies for office use, photography is the cheapest process, while for a large edition either of the back drawings or of the current issues, lithography or photo-lithography must be employed. An appropriation has been asked for, to make this business of reproduction a permanent feature of the office work.
Since the year 1843, a report has been published annually, containing an alphabetical index of inventors, an index of the subjects of inventions, a list of expired patents, and the claims of patents granted during the year. In the year 1853, and since, small engraved copies of a portion of the drawings have been added to explain the claims; and of late years, it has been customary to add a very brief abstract of the specification, comprised, usually, in not more than four or five lines. The report was a pamphlet of a few pages in 1843; in 1867 it had swelled to four large volumes. The expense of producing it is now over two hundred thousand dollars per annum. It is true that this amount has not been paid out of the patent fund; the report has been published as a document by Congress. Nevertheless, as a portion of the expense of preparing it is borne by the Office, it is proper to refer to it here. I doubt if a sufficient advantage accrues to the country, from the publication of this report, to justify its expense. Its bulk is such that it cannot be published until from eighteen months to two years after the expiration of the year in which the patents are issued. The claims are in most instances unintelligible, without the specifications, even with the aid of the abstracts and engravings; while the engravings themselves are not and cannot be copies of all the drawings or figures accompanying the patent. A large number of patents have more than one figure, sometimes twenty. In the printed reports, one, or at most two, are given, for want of space to do better. Such mere sketches of the patent and drawings, in many cases, do more harm than good. They mislead the public, instead of instructing it. It is true that it is desirable for some persons to know, from time to time, what patents are granted, but the number of such persons is limited, and the knowledge, to be valuable to them, must be furnished simultaneously with the issue of the patents. This information has, until a year ago, been supplied by certain mechanical journals. They published weekly lists of claims, until the issue increased to such an extent as to make it impossible for them to continue the practice. The office then attempted to supply this want. A weekly list of claims has been published, and furnished to subscribers, since January, 1869, at the rate of five dollars per annum. To this has since been added a pamphlet containing the Commissioner's decisions, which is issued at intervals of from one to two months. This year these claims are being stereotyped, so that, at the close of the year, they may, with proper indexes, constitute the annual report, without the abstracts or drawings. If Congress should desire to strike off copies of these for gratuitous distribution, it could be done at small expense, scarcely exceeding one dollar per volume, whereas the present report costs twelve dollars and a half per set. It is submitted, however, that if these lists of claims are of value to any one, they are worth the small price which the Office now asks for them.
In addition to these weekly lists, I propose, as a substitute for the annual report as now published, that a sufficient number of copies of each entire specification and drawings be printed in full, and that one full set be deposited in the capital of each State, and in each large city. This would furnish nearly all the information to be obtained by a visit to the Patent Office, and would save inventors many journeys to Washington. It would enable counsel at a distance to examine references, and to obtain information, now practically inaccessible, without a personal visit, or the employment of resident counsel. To the Pacific coast, the West, South, and far Northeast, such collections would be invaluable. A sufficient number of them for the purpose stated, and for Office uses, could be furnished at an annual cost not exceeding one hundred thousand dollars, or about one-half the cost of the present annual report. To make such a collection complete, the back drawings and specifications of patents already issued should be published also. For this purpose, the balance already standing to the credit of the patent fund is probably sufficient.
STATUTE OF LIMITATIONS
The courts have decided that no statute exists limiting the time within which actions may be brought for the infringement of letters patent. The action on the case of the several States is variously limited to one, three, five and six years. I submit that a limitation of five years, after the expiration of the patent, would be a proper provision.
Some provision is also needed limiting the time during which applications shall be permitted to lie in the Patent Office, after adverse action, before the next step by way of appeal or amendment is taken. Much injury to the business of the country is likely to result from the construction lately given to the law by the judge of the supreme court of this District, by inflicting patents upon the nation for inventions which have long been in public use. This is, in effect, to create a monopoly, instead of affording encouragement to inventors.
Their are hundreds of these cases in the Office, many of which are being bought up upon speculation, and vigorously pressed for issue. One of these, lately filed, was withdrawn in 1851, and has now been refiled, after a lapse of nineteen years, when the substance of the invention which it seeks to monopolize has gone into use in nearly every form in which a well-known agricultural implement is now manufactured.
Prior to July 1, 1869, much of the copying of the Office was done by females. About sixty-five were employed, who worked at their own homes, and who were paid at the rate of ten cents per hundred words for the amount actually copied. By an act approved March 3, 1869, provision was made for fifty-three female copyists, at an annual salary of $700. As it was obvious that this force must labor within the Office, in order to secure proper discipline and efficient work, six rooms were provided in the Patent Office building for the entire number. These rooms and clerks were placed under the charge of an efficient female superintendent. It soon became evident that although the number of copyists was reduced, there were still more than sufficient to do the work originally signed by them from other divisions, and the force of male clerks was correspondingly reduced. Accurate time-tables have been kept since July 1, 1869, of the attendance of these ladies, and a careful record has been made of their work.
The result of the experience of six months is that the attendance is nearly as good, and the work is fully equal in quantity and quality to that of male clerks performing corresponding duties. The salaries of these ladies was originally fixed at $700 only, instead of $900. This, it is presumed, was an oversight, as they have labored as faithfully, and, until November 15, 1869, one hour per day longer than the female clerks of any other Department. I know of no reason why their pay should not be equal to that of male clerks of like grades, except that there are, as nearly as can be ascertained, twenty-five applications for position by women to one from men. This division is the largest in the Bureau, and is under excellent discipline, yet the superintendent of it, because a female, has with difficulty been able to secure the pay of a first-class clerk. I recommend that the pay of the female clerks be raised to at least $900 per annum; that they be paid at that rate from the beginning of the present fiscal year, and that permanent provision be made for a female superintendent, at a salary of at least $1,400 per annum.
Principal examiners are now paid $2,500 per annum, while first assistant examiners receive $1,800, and second assistants $1,600. The difference between assistants is but $200, while between the first assistants and principals it is $700. There is not a corresponding difference in duties, qualifications, or ability. I submit that if the salaries of first assistants were fixed at $2,000 the scale would be more equitable.
The character and necessary qualifications for the examiners and chiefs of divisions require adequate compensation to secure the best men. These positions ought to be filled by permanent incumbents, and a sufficient price should be paid to retain them in office. That this is not yet done appears from the fact that they voluntarily resign to accept other positions or to go into business as solicitors. Every second assistant examiner now in the Office, twelve of the twenty first assistants, and seven of the twenty-two principal examiners were appointed during the year 1869; of these twenty-five were appointed to fill places made vacant by voluntary resignations. In the other departments of the Office, while it is doubtless true that many young unmarried men are amply paid, it is also true that experienced clerks of mature years are poorly compensated. Under the last appropriations bill not a single fourth class clerk was assigned to the Patent Office.
If there should be any increase of salaries, I commend the employees of this Office to the attention of Congress, especially as the revenue which enables the Office to support itself is largely due to their faithfulness and industry.
It has been the practice, in former years, as the work of the Office increased, to detail clerks to perform the work of assistant examiners, and assistants to perform the work of examiners. From time to time acts of Congress have been passed authorizing the Commissioner to pay these persons at the rate annexed to the higher positions filled by them. A bill for this purpose was before the last Congress, and was favorably reported, but failed for want of time. I am constrained to say that I doubt the expediency, as a rule, of encouraging clerks to expect increase of pay with every change in their duties. It ought to be in the power of the Commissioner to assign his force to the best advantage, without incurring the obligation of increasing salaries.
The additional honor and experience ought to be some compensation for a temporary occupancy of a more advanced position. But the practice has hitherto been otherwise; my predecessors who made the assignments accompanied them with a distinct pledge to endeavor to secure the extra compensation, and the labor was performed upon the faith of that pledge.
I therefore recommend that the appropriation be made, with the distinct understanding that hereafter no such advances be promised or given.
The large amounts of money paid into the Office daily, in small sums, and the necessary pay-rolls and accounts, have rendered the services of a financial clerk absolutely necessary. This officer was also formerly the disbursing clerk of the Bureau, and in this capacity performed the full labor of a disbursing clerk in any other department. Nevertheless he has never received the $200 additional pay allowed by law to disbursing clerks. On the 14th of January last the Secretary of the Interior sent a communication to both houses of Congress, inclosing a claim for the payment of this sum, being the preceding year of service, and recommending the same to their favorable consideration. The letter was referred in the Senate to the Committee on Appropriations and in the House of Representatives to the Committee on Claims, where the matter now rests.
As no officer has been more faithful in the discharge of his duties, and as those duties and the experience of the incumbent fully warrant the expenditure, I recommend that the arrears of additional compensation be paid.
Since the expenditures of this Office are now provided for by special appropriation, and a financial clerk of some kind cannot be dispensed with, I can see no reason why the disbursements of the Office should not also be made by him. The present system involves double labor and affords no additional guarantee against abuse, since the accounts of any disbursing officer, either in the Department or Bureau, must still be audited by the Treasury Department.
The duties devolving upon the Commissioner of Patents cannot be performed by one person. He is not only the executive head of a large Bureau, but he is vested with the sole right to extend patents, and he is charged with the duty of hearing appeals from the board of examiners-in-chief. The extension cases amounted to 153 during the last year, and as more patents were granted in 1856 than in 1855, the number of applications must constantly increase. The appeal cases of all classes amount to about 200 per annum, some of them involving the consideration of vast amounts of testimony and voluminous arguments. When to this is added so much of the correspondence as he must attend to in person, applications for office, and the necessary time for interviews, it is obvious that the labors must be arduous and unremitting.
I therefore respectfully recommend that an assistant commissioner be provided for by law, to be appointed by the President, by and with the advice and consent of the Senate; such officer to perform the duties of Commissioner in the case of death, sickness, or absence; and such other duties as may be assigned to him by the Commissioner.
ROOM OVER SOUTH PORTICO
My attention was lately called to the existence of a room over the south portico of the Patent Office building, which, when explored, proved to be a hall 90 feet long by 30 feet in width and 20 in height. This has been hitherto practically inaccessible, as it was unfinished and useless. It has now been fitted up and rendered easy of access, at a moderate expenditure, thus affording very eligible quarters for the library of copyrights and for the copyists of drawings.
Smaller rooms exist over the other porticoes of the building, which may be profitably arranged for the reception of rejected models.
Congress omitted at its last session to make any appropriation for the care of the copyrighted books and records.
I am persuaded that the time has come when a radical change should be made in the system of registering copyrights. This is now done in the clerks' offices of the various district courts. It is so imperfectly done that copyrights are proverbially worthless. They are usually invalid from a failure to comply with essential formalities, because no officer is interested to see that these formalities are complied with. The clerks omit in many cases to send their records to this Office, and to transmit the books. Many of the latter are never received at all. Meanwhile Congress has been called upon from year to year to make appropriations from the funds of the Treasury for the care of these books and papers. It is submitted, since mail facilities are now so cheap and abundant, that the work of registration could be done much more thoroughly in the Patent Office, and that the fees for that service (about $3,500 per annum) would pay all the expenses of the necessary clerical force, and for the custody of the books. If it were the business of a division of this Office to do this work, correspondence could be maintained with authors and publishers, and copyrights could be perfected. I also ask that the Patent Office be permitted to display and use as books of reference, under proper restrictions, the books, especially those of a legal, mechanical, and scientific character, which are deposited by the authors and publishers under the law. These have been hitherto of no value whatever, except as vouchers.
By conventions between the United States and France and Russia, (U.S. Statutes at Large, vol. XV, p. --,) provision is made for the deposit of trade-marks by citizens of either country in the United States Patent Office, the Tribunal of Commerce of the Seine, at Paris, and the Department of Manufacturers and Inland Commerce, at St. Petersburg. No fee is provided for the reception and filing of these papers. As the office labor to be performed in relation to them is analogous to that attending the filing of caveats or disclaimers, the same fee ($10) would be a proper charge.
It would also, doubtless, be a proper provision if a law were enacted giving validity to trade-marks so filed, either for an indefinite or for a limited period of time.
In conclusion it is right that I should say that no class of our citizens has done more for the glory and substantial prosperity of the nation than the mechanics and inventors of the United States, and yet they have never been favored children.
They do not deem it too much to ask that the Patent Office, which is the only institution which they can specially call their own, and which they have built up with their money and established by their genius, shall be supplied upon a liberal scale with every needed appliance for the performance, in the best manner, of all its legitimate duties.
I transmit herewith an alphabetical list of the patentees to whom patents have been granted during the year 1869, together with their places of residence and the subjects of their inventions, and also a list of all patents which expired during the same period.
Samuel S. Fisher