Scientific American, v 22 (ns) no 1, p 3, 1 January 1870
One hundred thousand -- at the rate old subscribers are renewing, and new ones coming in, there is a prospect that our ambition to increase the circulation of this paper to one hundred thousand will be gratified.
Who Get the Patent Office Reports
Messrs. Editors: -- The 25th number, last volume of the Scientific American failed to come to hand, the first failure in the present year; will you please send me one? I would as soon do without a new coat as my Scientific. Can you tell me why so many of the Patent Office reports are sent to men who do not care anything for them, and so few to inventors, the very men who need them?
My lock is finished, and no man has been able to open it with the key in his hand. I have just sold the New England States for my patent heel cutter for twenty thousand dollars. My motto is "Never despair."
J. H. Bean
[The reason why so many get the Patent Office reports who do not value them, and that so many inventors, and persons who would prize and be benefited by having them, can not obtain them, is that a proper distribution is not made by Congress. The members vote themselves too large a number for distribution among their constituents, and not half enough for the use of the Patent Office. The Commissioner should have the distribution of the bulk of each year's issue, that every patentee and applicant for a patent might be supplied from the Patent Office. Inventors are the persons most interested in these reports; it is their money that is appropriated for the payment of them, and they should be the first served with them. The Commissioner has the names and addresses of many thousands of persons who would be glad of his annual report, and he has the facilities for the proper distribution of all that are published.
We hope Congress, in their next appropriation, will largely increase the number for the Patent Office, if the members are somewhat curtailed in the distribution. We are glad to know your good success in disposing of your patent. We like your motto.
Proposed Modification of the Patent Laws -- An Attempt to Break Down the Right of Appeal
The Report of the Commissioner of Patents, published in full in our last number, is a document of unusual interest and importance. It contains many useful recommendations, and displays a lively interest in the welfare of inventors, though it is probable that the zeal shown in that direction may not command their full appropriation.
After supplying the usual statistical tables showing the gradual progress of invention in our country, the Commissioner calls attention to the rapid increase of documents, drawings, models, etc. He seems to have applied the measuring line to all the contents of the office, ascertaining, for example, that five thousand square feet of models, seventy two cubic feet of drawings, four hundred cubic feet of printed drawings, four hundred and twenty-five cubic feet of printed specifications, four hundred cubic feet of files, and two hundred and sixty lineal feet of books, are annually added to the records of the Office. To mitigate the cost of this increasing accumulation, the Commissioner advises that all models be dispensed with, except when, in the discretion of the Office, such mode of illustration is absolutely necessary to a clear understanding of the invention. This measure would certainly relieve inventors from considerable delay and expense completing their applications, and at the same time the Patent Office would be relieved of much useless lumber.
The Patent Office building, one of the most extensive structures in the country, is now nearly filled with models accumulated during the past twenty five years, and if this system is to continue much longer the present building will not be large enough. We should be glad to see this recommendation carried into effect.
The report calls attention to the present practice of using rejected applications as references to defeat new applications, and recommends its abolishment. Many cases have been rejected because the devices claimed were either useless, frivolous, or wanting in novelty, and certainly they add nothing of value to the public records. Still, the Examiners are required to make careful search among all this useless material before they can pass upon a new application for issue.
In an able review and defense of our patent system, the Commissioner calls attention to the thorough manner in which the business of the Office is transacted, and to the care with which the claims of inventors are considered and modified, so that the public may not be deceived as to the scope and bearing of a patent granted. He admits, however, that many useless inventions are patented, and attaches the chief blame therefor to unscrupulous solicitors, who are naturally more solicitous about the number than the quality of the patents which they obtain. This tendency, he goes on to say, is aggravated by those who solicit upon contingent fees, or who, without special training or qualifications, adopt this business as an appendage to a pension or claim agency, and press for patents as they press for back pay and pensions. The Commissioner knows well enough that the majority of patents, sought and obtained for the purpose of recovering a contingent fee, are not worth the vellum upon which they are engrossed. The Commissioner being himself an able expert in patent law and practice, is so much impressed by this new species of "no cure, no pay" that he courageously deals with it in his annual report, hoping thereby to modify it before it works out the final ruin of our patent system.
Commissioner Fisher takes a very decided stand against the continuance of the present system of appeal from his decision to justices of the Supreme Court of the District of Columbia.
The report treats this matter at considerable length, and sets forth that the appeal from the Commissioner is unnecessary, not only because that officer is less likely to err than the justice who is not supposed to possess mechanical knowledge, but also because the law provides for an appeal by filing a bill in equity in any circuit court of the United States. We share, to some extent, the conviction of the Commissioner that the present provision for appeals from his decision is not altogether satisfactory; but on the whole we regard this privilege as one of the most precious now conferred upon applicants, and to allow it to be repealed, without providing something better, appears to us to be fraught with great mischief to the rights of applicants.
The appeal from the Commissioner by filing a bill in equity in the Circuit Court is a process much more complicated and tedious than the direct appeal as at present provided. Such appeal implies a completed act of the Commissioner -- and an alleged injury wrought by his decision; whereas heretofore his decision was not final in itself so long as notice of intention to appeal was filed. In cases where the possession of a limited number of machines is almost equivalent to the possession of the patent itself, the injury wrought by the unjust by final decision is irrevocable. Not only in the annual report but also in the proposed simplification of the patent law, now pending before the patent committee of the Senate, the proposition of the Commissioner to abolish the appeal to the supreme court of the district is ingrafted; also a clause giving the Commissioner a right to make rules for regulating proceedings before the Office, without any qualification or limitation whatever.
This provision, as well as that abolishing the right of appeal might receive our approbation if we could be assured that the office of Commissioner of Patents was to be kept, as now, in the hands of an able man, but the office at the present moment is a political one, and liable whenever a vacancy exists to be filled by a politician wholly incompetent to grapple with the nice and intricate questions that arise in the daily practice of the duties of the Commissionership.
Hence, we content that the right of appeal from the Commissioner's decision should be sacredly preserved, and with such additional safeguards thrown around it as will assure inventors that they have an impartial, inexpensive tribunal outside the Patent Office to which they can apply for redress.
The mischief that might be wrought by such uncontrollable power in the hands of one incompetent Commissioner would far outweigh all the annoyances to which the Patent Office is now subjected by the adverse decisions of district judges.
The further recommendation of the Commissioner as to the printing of drawings and specifications, limitation of time within which action may be brought for the infringement of letters patents, are valuable and worthy of careful consideration.
The proposition to have copyrights registered in the Patent Office agrees exactly with our views on this subject. In the bill now pending before the Senate no mention is made of design patents. We presume, however, that this matter must have been included in a similar modification of the copyright law. We do not suppose that the Commissioner or Congress proposes to do away with patents for designs, but we cannot comprehend why a completed bill to revise the patent laws should be silent on this important subject.
Concerning Patent Office Matters
A correspondent of Work and Play gives his experience in regard to Patent Office matters, in the following practical observations, which we commend to the attention of our readers:
"The Patent Office is near the Post Office, and both about a mile from the Capitol. On the lower floors of the huge building designated as the Patent Office, are the numerous rooms occupied by the various officials, and above are immense halls filled with glass cases, in which are deposited models of inventions for which applications for patent have been made. Every person, without regard to age or sex, is equally entitled to a patent. In order to procure a patent, it is not necessary for the inventor to go to Washington; in fact, it is much better that he should not; because, not being conversant with the rules and practices of the Patent Office, he will probably make some blunders, and fail to comply with some of the red-tape requirements, and thereby make himself unnecessary trouble. There are, in the larger cities, many patent solicitors or agents, whose business it is to transact business with the Patent Office; and if they are honorable men, they can do it much better than the inventor. A man having invented a machine or piece of mechanism which he wishes to patent, first makes a miniature edition of it, which is called a model. A model for the Patent Office must not be more than one foot long or high, so that some large machines must be very much reduced. This model is taken to some patent agent or solicitor, to whom is explained its whole operation, and all the points wherein it differs from other similar machines. The agent must then make complete drawings of the model, such as to fully illustrate every part and its operation. The law requires two sets of these drawings, and, therefore, one set having been made on paper, a copy is made on tracing muslin, and, by means of letters of reference on these drawings, a very full and complete description of all the several points of the invention is written. This description is called the specification, and at the end of the specification the whole is summed up in a nutshell, and this is called the claim. When the agent has all these prepared, the inventor is obliged to make oath that he is the original and first inventor of the machine or device described, and then the model, drawings, specifications, and fifteen dollars are sent to the Commissioner of patents at Washington; but the Commissioner sees very few of the applications, for, although directed to him, they go into the hands of men called examiners.
"The applications for patents are divided into classes, thus: all inventions relating to guns, pistols, cannon, etc., are in one class; everything connected with farming in another, and so on. For each class there is a special set of examiners in a room by themselves. When an application for a patent saw-horse comes in, the models, drawings, and specifications are given to the proper examiners, and in turn the case is taken up by them and investigated. They refer to all the patents that have been granted on saw-horses, examiner, if necessary, the models in those huge class cases in the hall above, examine the reports of English and French patents, and if, after all possible search, they cannot find anything similar, the patent is allowed, and the inventor is notified that if he will send twenty dollars more, his patent will be granted. But if something is found that an examiner thinks looks like the saw-horse in question, then the application is rejected, and all the fond hopes of the inventor are dashed to pieces; and that is just my condition at the present time. Ordinarily, there is so much business on hand, that cases must wait several weeks and even months before they are examined; but when in Washington, Mr. F. saw the examiner having charge of the class into which my case would come, and he said he was so nearly up with his work, that my turn would come very soon; and a few days ago I received notice through Mr. F. that the application was rejected, because something similar had been found in some old English book. I don't think that is fair; I didn't know anything about it, and I do not believe there was ever one in this country; but the law says that I must not only be the original inventor, but also the first inventor, and of course, if some one in England has invented it before, I am not the first; but it is a bad law, and if I ever get to Congress I will have it changed.
Proposed Plan for Publishing Patent Office Specifications and Drawings
The speech of Mr. Jenckes, of Rhode Island, in the House of Representatives, on the 9th inst., in support of the House joint resolution, providing for the publication of the specifications and drawings of the Patent Office, and the subsequent debate upon the subject, has placed the salient features of the plan in such a light that the public generally may comprehend its advantages.
It is proposed to abandon the publication and distribution of the annual report as they are now published, and instead to place in the capital of every State, and in every city where a circuit Court of the United States is held, if it be not held in the capital, a complete record of the transactions of the Patent Office; the specifications in full and the drawings in full. Then the inventor has simply to take rail or boat, and visit the capital of his State, and he will have the same means of investigating what are the inventions of the country as if he came to Washington in person.
It is also proposed to furnish an equally perfect record to each public library in any part of the United States, which shall pay for its uniform binding and its transportation to the locality where the library is situated.
It is further intended to make this distribution weekly, so that the latest information relative to patents may be accessible to the entire country.
The disadvantages of the present system are great. It is confessedly expensive, incomplete, inaccurate, and inadequate to meet the needs of inventors.
The advantages of the new system are as obvious as the disadvantages of the old. The distribution being not a matter of favor, as now, the filed drawings and specifications will form a complete as well as an accurate and reliable record. Under the present system the distribution is very imperfect, so much that complete sets of the reports since their publication in 1844, are rare outside the Government Departments, though not so much so as to justify Mr. Bank's statement in the debate referred to. Mr. Banks said that "Of all the million volumes that have been distributed, I do not believe that there is within the United States in the hands of any private citizen, unless he have some special Government advantages, a complete set of this encyclopedia of inventions. The chairman of the Committee on Printing tells me that there is not in the Patent Office itself, nor in the Library of Congress even, a complete set; and I do not believe that such a set exists in any one of the one hundred and four principal public libraries of the United States, which contain ten thousand volumes and upwards. Now what a senseless practice is the distribution of this work, at a cost of $225,000 a year, when the value of it is greatly impaired by the manner in which it is distributed."
We have a complete set of these reports, and they are of great service to us. They are constantly sought by large numbers of persons interested, who daily visit our office to consult them. It is true, however, that only complete sets are of much assistance, and that the drawings are often so defective in their lettering as to mislead; and they are altogether too meager to give such information as will form a basis for accurate judgment.
It is claimed that the new system will decrease the expenses of the Patent Office for printing $100,000 per annum, and it will also reduce the expenses of those who now have to go to Washington to pursue their investigations by requiring them only to journey a short distance to obtain the necessary information.
It is thought this plan would increase the confidence of capitalists and make them more ready to invest in really new and useful inventions, as they would easily be able to verify the value of an invention, so far as novelty is an element of value.
By means of the art of photo-lithography the drawings can be reproduced of half the present regulation size at an estimated cost of one dollar and fifty cents per hundred, and although the bill, in its present form, provides only for the publication of specifications and drawings after the publication of the report of 1868, it is estimated that all the drawings and specifications issued prior to 1870 might be reproduced in 300 volumes at a cost of $200,000.
Mr. Jenckes performed an act of injustice in his speech toward honest and honorable patent solicitors, in making no distinction between them and such as do not identify themselves with the interests of their clients. No one knows better than Mr. Jenckes that this is unjust, and it is probable that his zeal in the support of his measure, betrayed him into an unguarded expression.
We heartily advocate the passage of this resolution; but we would have the plan extended to the publication of the specifications and drawings of all the patents which have been issued up to the present date; and it ought also to be amended so as to admit of the purchase at cost by such parties as are willing to pay for it in advance of publication. Many copies could thus be sold without increasing the cost to the Government, and a much wider circulation given to them.
Congress Extending Patents
In the House of Representatives on Friday, March 11, the following measures concerning patents were enacted:
Reports were made from the Committee on Patents by Mr. Jenckes adversely on the following applications:
For extension of patents of J. Carhart, of New York, and of Charles A. Pitcher, for the manufacture of brooms.
Bills were reported from the same committee allowing applications for extension of patents as follows:
By Mr. Jenckes -- Patent of Walter Hunt for the manufacture of paper collars Passed.
By Mr. Calkin -- Patent of Timothy D. Jackson for improved annunciator or bell telegraph for hotels, etc. Passed.
By Mr. Myers -- Patent of Thomas Thompson for improved machine for folding paper. Passed.
Also, patents of William Montstown for improvement in revolving firearms. Passed.
Also, patent of John Edgar for self-regulating wind wheels. Passed.
By Mr. Calkin -- Patent of John Young for improved washing and wringing machine. Passed.
By Mr. Johnson -- Patent of Jonathan Haines, for harvester or header.
After discussion by Messrs. Johnson and Cullom in support of the bill, and Mr. Tanner in opposition to it, the bill was passed.
By Mr. Jenckes -- Patent of Augustus R. Moen for improvement in the construction of basement, cellar, conduit, and other like walls, so as to render them impervious to water. Passed.
Also, patent of Robert Burns Goodyear for improvement in power looms.
Pending its consideration the morning hour expired, and the bill went over to the morning hour next Friday.
If this kind of special legislation by Congress is to continue, the statutes relating to extension of patents might as well be repealed. Of what use is it to absorb the time of the Commissioner, who knows what he is about, in the examination of applications for extension, when a successful appeal from his decision can be made to Congress through the aid of expert lobbymen, thus practically taking the power of granting or refusing extensions out of the Commissioner's hands? We have always opposed this sort of legislation.
Bill to Amend the Patent Laws Now Pending Before Congress
We have now before us the completed bill pending before Congress to amend the patent laws, to which reference was made in No. 8 of the current volume. It amounts substantially to a codification of our entire present patent system, and we feel bound to confess that, in many respects the bill is a great improvement upon the old law, reflecting credit upon the Committee, of which Hon. T.A. Jenckes is chairman.
The bill came up for discussion in the House on the 15th inst., but went over under the rules, and before the discussion was concluded. The provisions of the bill embrace patents, designs, trade-marks, and copyrights, and are too voluminous to print in our columns.
In explaining the various features of the bill, Mr. Jenckes says:
"In the law with regard to patents, which appears as chapter two of the bill, there are four principal propositions of amendment. One is the requirement of a fee to be paid at the expiration of seven years from the date of the patent, and another at the end of the twelfth year as a condition of keeping the patent alive. Such a provision is found in the patent laws of almost all other countries. The proposition had met the commendation of the Commissioner and of persons doing business at the Office. Its adoption will increase the revenues of the Office, and will weed out those worthless patents which are sometimes taken hold of by speculators near the expiration of their terms for the purpose of harassing the public with ingenious reissues. One great annoyance and evil will be removed and positive good obtained in its place.
"Another source of difficulty, and which was becoming a great one, arose from the fact that there is a large number of what are called rejected applications in the Patent Office. During the past year there were over five thousand of final rejections, and the year before nearly as many, and since the constitution of the Office there are perhaps twenty thousand remaining in the Office; most of these rejections have been acquiesced in and the claims abandoned. But some of these have been rejected improperly, and contain descriptions of valuable inventions. In course of time it has been discovered in many cases the rejection was wrong and that the examiner had made a mistake, and the applicant has again made application for his patent, and pressed it, and it has sometimes been allowed and sometimes rejected. If allowed, he would go and try its validity in the courts. If refused, the further difficulty arose on the provision of the existing law for the revision of the decisions of the Commissioner.
As the law now stands an appeal may be taken to one of the judges of the Supreme Court of the District of Columbia, or remedy be had in a suit in equity in that or any other circuit court. This led to a conflict in the jurisdiction exercised by the Commissioner and that exercised by a single judge in the District court, and exposed behind it a further and greater cause of difficulty. That is, the law as it now stands, contains no provision absolutely in itself, clearly and distinctly defining what should constitute the abandonment of an invention to the public. We heard the solicitors at great length on the question, and the conclusion of the committee arrived at is expressed in two short provisions of the proposed bill. The substance of them I will state. Each and every party whose application has been refused is allowed two years to renew that application before the Commissioner, but this provision is not allowed to revive any application for an invention which has been, as a matter of fact, abandoned to the public. In other words, it says a mere lapse of time in the prosecution of an application for patent shall not be conclusive evidence of abandonment; that the right to a patent for a first and original invention is a vested right, and can only be lost by the inventor in not proceeding in accordance with the provisions of law, or in his forfeiting that right in accordance with those provisions; and to those in this condition, not cut off by any positive existing statute of limitation a new statute of limitation is proposed, defining the time within which such new application shall be made. Thus all the rights are preserved and the mode of prosecuting them is pointed out. The field of controversy concerning these old applications, whether abandoned or not, is fully and satisfactorily provided for."
The right of appeal from the Commissioner's decision is maintained in the bill, and every facility is afforded the applicant for the patent to secure himself against an unjust decision.
"The Committee also propose to amend and enlarge the provisions as to relief between interference patents, and to provide relief in cases where a patent has been improperly obtained or improperly reissued, or where the validity of a patent is contested by persons using the things patented.
"There is now no means provided by which a person thus injured or threatened to be injured by a suit can turn around on his prosecutor and test his right to the patent. We propose to give that remedy, so that a single suit can determine the question and avoid the extended litigation and expense now attending controversies upon patents. Heretofore it has sometimes happened that persons have obtained reissues of old patents, and then gone around the country threatening suits against persons; sometimes commencing a suit in a court, and if not liking the temper of the judge, or from some untoward circumstance connected with the trial, abandoning it and commencing another somewhere else, with the hope of obtaining a decision in their favor. And when they have succeeded in obtaining a single decision they will go around again and levy a tax upon all who do not feel able to go to the expense of contesting the validity of the patent.
"That has been a great burden and a great wrong, which has many times been sought to be amended. But the difficulty has been to do it without injuriously affecting rights conferred and established. The committee propose to do it by recommending that where any party has been sued for the infringement of a patent, and he thinks the patent is invalid for any reason or should not be enforced against him for any cause, he may commence a suit against the owners of the patent who have sued him, in order to test the validity of that patent, and the final decision in that case shall be conclusive upon the right of all parties claiming the right to use the thing claimed to be patented.
"I know of one case where after a defendant had succeeded in a suit upon a patent, the patentee turned around and brought upwards of a hundred suits all over the United States upon that very patent, subjecting each of the parties sued to as much expense as the one who had defeated him, in the hope of obtaining a reversal of the former decision. That is an evil to be prevented; and we think we have provided a remedy which will reach the case, so that the expense of one suit shall be all that is required to test the validity of any patent or the right of any party under it.
"The committee have recommended also certain provisions which are entirely new concerning trade-marks. These have not heretofore been the subject of any national law. It is a subject embraced within the common law jurisdiction of all the courts of the country, and also within the general equity jurisdiction of all the State courts. This bill does not propose to interfere at all with the local and State jurisdiction. A person, standing upon his common law rights, may still go into the State courts and defend a trade mark, exactly as he may do now; but if he chooses to register his claim at the Patent Office, pay his fee, and take his certificate of registration, it will protect him throughout the United States, in the same way as a patent for a design or a copyright is protected.
"Concerning trade-marks, we are at present in an anomalous condition, which perhaps is not understood by the House generally. By certain treaties or conventions with Belgium, France, and Russia, we have agreed to recognize the validity of the trade marks of those countries upon their being registered in the Patent Office of the United States, and to give them the same effect throughout the United States that they have in the country where they originated; and trade marks recognized by the law of this country have the same effect throughout those European countries as the trade marks secured by the citizens or subjects of those countries.
"A facsimile of the trademark is to be sent to the Patent Office. The kind of business, as well as the kind of goods, to be protected, is to be described briefly and correctly. A fee of $25 is to be paid into the Treasury of the United States. A certificate of such registration, with a facsimile of what is filed in the office, is to be delivered, under the seal of the Patent Office, to the person causing such registration. It is to be in effect for thirty years from the date of registration, and if it be copied by a person not having a right to do it, or if it be copied by a person in such a manner that the imitation is calculated to deceive the public, then the party may have his remedy in any court of the United States for the injury done him."
The Amended Patent Laws
The bill to amend the patent laws, to which reference is made in another column, passed the House on the 21st inst. As the seventieth section caused much comment in the House, on motion of Mr. Cleveland of New Jersey, it was stricken out. The section is as follows:
On all patents hereafter granted there shall be paid the following additional fees, namely: At or before the expiration of the term of seven years from the date of the patent the sum of $25, and at or before the expiration of the term of twelve years from the date of the patent the further sum of $50, and in default of the payment of either of the sums aforesaid, within the periods aforesaid, the said patent shall be forfeited, and the invention so patented becomes public property.
In the course of Mr. Cleveland's remarks, and as a reason for his moving to strike out the section, he said it proposed by section seventy to increase the revenues of the department at the present rate of patent issues, after seven years, nearly $400,000, and after twelve years of more than $500,000 as a tax upon the inventors of the country because they are inventors.
Speech of Hon. Thomas A. Jenckes, in Defense of the Patent System
(Delivered in the House, April 22, 1870)
Mr. Speaker -- There are some general considerations upon the subject of the patent laws which I wish to present to the House before asking a vote upon the passage of this bill.
Patent laws are based upon the belief that the field of the useful arts may be extended, and that many things which may add to the comfort, the well-being, and prosperity of mankind, yet remain to be discovered. These laws give to every one who thus by his inventive genius adds to the sum of human knowledge in either of the ways indicated, a protection for a few years to the exclusive use of his invention or discovery. They offer a premium upon the exercise of this talent for the benefit of mankind. They recognize a man's right to the fruit of his own mind, upon the condition that he shall teach the public how to use his invention without price forever after the termination of the period for which his use is exclusive. Property in ideas, and protection to that property for a limited period, is the vital principle of these laws. If he who can teach us how to make two blades of grass grow where but one grew before, is a public benefactor, how much more so is he who constructs for us a machine or explains to us a chemical process by the use of which one man can bring about a greater and more perfect result than a hundred men could do before? This is the domain of invention, and so far as it is genuine, the law follows it with its protection for seventeen years.
But why protect it at all, say many. If an invention had not been perfected by this patentee today, it would have been at some subsequent time by some other inventor. Why not wait and let it be produced in course of time, according to the necessities of the art in which it is developed, and without any expense to the public? This objection touches precisely the point of the whole matter, and affords the best argument to the patent laws. It admits that invention is a question of time, and that the results of invention are desirable and valuable. The patent laws offer a premium upon the earliest time. If it be known that any art or manufacture could be improved by invention in any particular, the question is, is it likely that such improvement will be made sooner by protection of the inventor, or will it be delayed indefinitely without such protection? The solution of this question does not rest in speculation. The history of inventions determines it. The loom is as old as civilization, but the power loom was perfected under the stimulus and protection of the patent laws. So was the machinery for spinning. The philosophy of steam may have been ancient, but the steam-engine is a creature of the patent laws.
These are but individual instances. They might be increased till the mind and memory would be burdened by the catalogue. The assurance that thought, skill,and inventive talent may gain fame, honor, and fortune, by an early solution of the problems in science and art that are pressing upon us, brings into the enjoyments of this age, improvements and discoveries that might not have been known for centuries later. The theologians will not admit that any new developments or discoveries can be made in religion; the politicians have not advanced much in their arts beyond those we read about in ancient history; in the fine arts the greatest genius of the present day can hardly hoe to excel "the old masters;" in architecture nothing has been produced within the last five hundred years to surpass that which has been known, admired, and reproduced for twenty five hundred.
The sphere, therefore, in which original genius and inventive talent can best obtain recognition, honor, and reward is that of science and the useful arts. Therein, under the protection and fostering care of laws like that which we now reproduce, has been the greatest progress of the world within the last century, and in many branches of those arts the progress has been greater within the memory of living men than in the entire previous historic period. As the desires and necessities of mankind are the same in all generations there must be some reason why this advancement is found in the nineteen century than in the ninths or the tenth, or in any of those centuries which are mere barren wastes to the history of civilization. Certainly one reason is because there is some incentive in this era for the development of improvements in this sphere. It cannot be found in the necessities and desires of the race alone, for those have been always the same; and those who have ministered to their wants and necessities, with the means known to previous generations, have been the most strenuous opponents of the introduction of these new inventions.
It is not true, as argued by one of the most illustrious of the opponents of the patent laws in our time, that manufacturers will welcome and adopt an invention which seems to be called for by the necessities of their particular manufactures. This has never been the case where the profits of capital and labor have been disturbed by a new invention which created a revolution in a particular art of manufacture. "It may seem a paradox," says a distinguished author discussing "the rights and wrongs of inventors," but it is no less true, that inventors' patrons are among their most inveterate opponents." The inventor of the machine for making paper, Fourdrinier, was driven out of France, and it took him ten years to introduce his machine into England in opposition to the methods of paper making by hand. The inventor of the loom for weaving variegated patterns in fabric, Jacquard, was in danger of his life from his co-laborers in Lyons, and the capitalists and artisans, whose money and labor were dependent upon the use of the old looms for their profits, fought for years against the introduction of the revolutionary invention. The conflict is still recognized in our tariff laws. In our own country we know of the opposition to the steam boats, the locomotives, the mowing and reaping machines, the sewing machines, the revolutionary inventions in the manufacture of carpets, paper, iron, and steel. In no case does the capitalist welcome an invention which requires him to reconstruct or lay aside the machinery used in the manufacture from which he derives a profit; nor is it looked upon with favor by the laborers, nine out of ten of whom it threatens to throw out of employ.
The necessities of any art or manufacture do not prompt invention. The conservative tendencies both of capital and labor array themselves against it. The inventor is more frequently than otherwise disconnected with the trade or manufacture to which his invention applies and from which he seeks his reward. But the necessities of the public, the consumers of the product of the art and manufacture, all the time demand improvement and increased cheapness. The premium to inventors by the limited protection of the patent laws, is thus directly in the interest of the public. When it is said that an invention would have been made at some time if not at the time it was made, without the stimulus of the patent laws, who can tell at what time? When would any modern invention that might be named, the sewing machine for instance, have been produced if the inventors had not expected a profit upon it?
What invention can be named which this generation would willingly have parted with and consented to have postponed till the next century, by reason of the extravagant price we have paid for it under the patent laws, whose stimulus and protection have caused it to be made in our time? Would we then, part with the cotton gin, the locomotive, the steam boat, the electric telegraph, the sewing machine, the cast iron plow, the reaper, the machines for gathering the hay crop, the planing machine, the improved steam engine, the rotary printing press? I have mentioned only those inventions which are embodied in wood and metal. But for the small consideration which the inventors or those working the inventions have received, would we have parted in our time with vulcanized rubber and its thousand uses; with illuminating gas; with all the arts of dyeing and printing, which have extracted from waste weeds and the refuse of the gas factories, the colors which view with the Tyrian purple, with the wonders of the lithographic and photographic arts; and with all those wonderful substances, with almost magic properties which are the products of chemistry as applied to the arts? I challenge a reply from the most bigoted opponent of the patent law.
These inventors have been questioning nature, and her kind responses have been a benefit to themselves as well as benefactions to mankind. But while the law has encouraged them, capital, from its conservative instincts, has always been opposed to them. Those who have invested their means in the machinery and apparatus which is well known, and in common use, in any particular branch of manufacture, do not like to be confronted with an inventor who can demonstrate that he can produce the articles manufactured in a better and cheaper manner, by a method which requires new investments of capital and makes the old apparatus comparatively worth less. The manufacturers of the old musket did not welcome the inventors who brought them the breech-loader and the magazine rifle, requiring new tools for their construction and consigning the old to the scrap heap.
Invested capital would never encourage or adopt new and revolutionary inventions. It would be a benefit to all now engaged in manufactures if no new improvement was made in their machinery for twenty years, or until it was worn out. They would be saved the cost of making the changes required by the new invention. There is an historical anecdote which illustrates perfectly the relative position of the capitalist who believes that he has assured possession of the art in which his capital is invested, and the inventor whose invention would render those investments of little value. It is a remarkable incident in the history of the lost arts, preserved in the curious gossip of Petronius.
"A certain skillful workman used to make crystal vases as strong as vases of gold and silver. He produced an incomparable masterpiece. It was a chalice of astounding beauty, which he thought worthy of Caesar only, and which he felt a pride in offering to him. Tiberius highly praised the skill and the rich present of the artist. This man, wishing to increase still more the admiration of the prince, and secure his favors to a greater degree, begged of him to give back the vase. He then threw it with all his might on the marble pavement of the apartment; the hardest metal could never have resisted this terrible shock. Caesar appeared moved, and was silent. The artist, with a triumphant smile, picked up the vase, which had only a slight dent, and which by striking it with the hammer was soon brought to its original state. This being done, no doubt remained in his mind that he had conquered the good graces of the Emperor and the esteem of an astonished court. Tiberius asked him if he was the only one who knew how to work crystal in so remarkable a manner. The workman immediately answered that no one possessed the secret. 'Very well,' said Caesar, 'let his head be struck off without loss of time; for if this strange invention were known, gold and silver would very soon have not the least value."
"Thus did the Emperor Tiberius encourage artists and the arts."
And the same way do our manufacturing capitalists encourage inventions and inventors. They unconsciously imitate Tiberius, and although they cannot, like Caesar, strike off the impertinent inventor's head, they too often have turned him off to starve. But under our patent laws, as they were established in 1836, the inventor, if he be prudent and thrifty, is assured of a certain compensation. Under the existing constitution of the Patent Office, its seal is evidence that its possessor is entitled prima facie to a new and useful invention. The number of persons skilled in the useful arts and the business to which they appertain, has largely increased. There are many skilled persons who can estimate with approximate correctness the value of every new invention. Under this American system of patents, in itself as great an invention as any that are protected by it, inventions have become commodities of marketable value. No inventor now needs to sacrifice his invention for subsistence. Some, perhaps, have anticipated the period of their greatest usefulness, but every genuine invention now has its value, a great portion of which can with ordinary care and prudence, be realized by the inventor.
Without this protection, we should return to the era of "secrets," when every valuable discovery was carefully guarded by its possessor, or parted with only upon terms which required the purchaser to be equally silent and uncommunicative. The public obtained no useful knowledge of the art, and but a limited advantage from the working of the discovery. The evil consequences of that system were two-fold. The knowledge of many valuable inventions and discoveries died with their possessors, and are now among the lost arts, on the other hand, empirical processes of fictitious value were imposed upon manufacturers under the guise of "secrets" in the arts, and the whole subject of invention and the character of inventors became discredited and debased. The injury to the progress of the useful arts by these pretended secrets has been greater a thousandfold than any that has arisen from the abuse of even the most imperfect system of patent laws.
Now every invention published through the Patent Office adds something to our knowledge, and, if useful, increases the material wealth of the world. And I do not hesitate to say that the sum of these values, the aggregative increase to the wealth of this country, from the inventive genius of the people fostered and protected by the patent laws, has been greater than that derived from all the protective tariffs passed since the Government was organized under the Constitution. A protective tariff deals only with the known elements of labor and skill; as with cottons produced in this country with the same machinery, labor, and skill as they are produced in England and France, and with iron as produced in Scotland or Wales. But invention takes a stride forward of the known mechanism and processes, and calls for a higher degree of skill. Who can estimate the effects of the invention of the cotton gin upon this country? Not its value in money merely, but its effects socially, morally, and politically? Consider the results from the leading inventions I have named, and see how small are the results from the manufacture of coarse cottons and pig iron when compared with the great interests these inventions have created in the country.
The most distinguished of the opponents of the patent laws has argued in favor "of putting an end to the notion that every person who invented anything had a right to a patent," and that "the giving of patents was a matter of grace and favor in well selected and discriminated cases, in the exercise of a discretion, by an authority entrusted with that discretion;" and in his superlative wisdom he expressed the opinion that "at the period of progress in the history of the arts and trade at which they had arrived, they could do much better without those props. He called them props because they were meant to be so, but he believed that at present they were nothing but obstructions and hindrances to trade and the arts." This was said of the patent laws of Great Britain, where there is no preliminary examination and investigation into the rightfulness of the inventor's claim, but where any one can take a patent by paying the fees, if he claims to be either an inventor or the person who first introduced an invention into that country.
Our American system of patent law defies such narrow, carping, illiberal, and unjust criticism. It acknowledges and declares that the first and original inventor of anything new and useful has a vested right to its protection by a patent for a limited term, upon the compliance by the inventor with certain mild and prudent conditions. It provides for a discrimination which shall determine what the invention is, not as a matter of grace and favor, or in the exercise of an uncontrolled discretion, but as a matter of right as between the inventor and the public. It is not based upon the idea that invention has reached its highest flood, and must soon be subject to a returning ebb; or if the results of invention be likened to a structure, it does not consider that it is now complete and perfect, finished and furnished, and that the "props," which the patent laws were, may now be knocked away; nor does it consider that these laws are obstructions and hindrances to trade and the arts.
Under the beneficent provisions of these laws the results of the inventive genius of our people have developed, and are now being developed, in almost geometrical progression. Never at any time in the history of the world have so many and so valuable inventions been made known through the Patent Office. The inventors of all nations seek this country for the protection of its laws. Every invention thus acquired, as well as any now produced at home, is the planting of a new industry which needs no other protection from legislation, to grow and prosper, than that which is afforded by these laws. The rise of this inventive genius is not like that of the tide which must reach its limit and recede, but like the increase and swelling of a river, which will not diminish while its course, which is that of time itself, shall continue.
There is nothing of which this nation may be more justly proud than its progress in the industrial and useful arts. No greater and more beneficial results to mankind have been attained in the whole history of the race than have been accomplished within the last three quarters of a century and in this country. If we look back over the whole history of invention we are surprised to see how meager and barren it is, compared with what has been achieved almost within our time. The country acknowledges always this great glory which its citizens have acquired. The nation takes pride in the record of the results of that inventive genius which is preserved in one of the grandest temples ever dedicated to art and science by any nation or in any age; and it knows that great as is its renown in arms, in the spread of liberty, and in the success of free government, there is no brighter coronal that adorns the Republic than that which is enwreathed from the contributions of its inventors to science and the useful arts.