Scientific American, v 53 (ns), no 7, p 97, 15 August 1885
The Beginning of the Patent Office
In the second volume of McMaster's "History of the People of the United States," recently reviewed in the Scientific American, we find the following interesting historical particulars concerning the American Patent Office:
"While one part of the community was expanding its ingenuity in adding new words and phrases to our tongue, the ingenuity of another part was rapidly adding to that splendid series of inventions and discoveries which no American should contemplate without feelings of peculiar pride. The United States patent system had begun.
"The glory of it belongs to Jefferson. He inspired it, and long took so deep an interest in its working that he may well be called the founder of the American Patent Office. The growth of it is marvelous. To one who wanders through the corridors of that magnificent building, and beholds the army of clerks and draughtsmen, and the hundreds of thousands of models there displayed, it seems scarcely to be believed that when 1800 came one man did all the clerical labor, and a dozen pigeon-holes held all the records of the office. For each of the patents which then existed a thousand have since been issued; nor does it seem too much to say that before 1900 shall have been reached this ratio will have been increased two-fold.
"The law of April 10, 1790, established the office, made the Secretary of State, the Secretary of War, and the Attorney- General a board of commissioners, and bade them examine the claims of inventors and grant patents to the deserving.
"So rigorously did the board construe the law that, in 1790, but three were issued. In 1791 the number rose to thirty-three. The next year it fell to eleven.
"In 1793, when Jefferson went out of office, twenty were sealed. The moment a claim came into the Department of State, Jefferson would summon Knox and Randolph. The three would meet, go over the application most critically, and scrutinize each point of the specification with utmost care.
"If they threw out the claim, the decision was final.
"The inventor had no appeal.
"If they determined that a patent should issue, the paper was signed by the President and the Attorney-General, and the inventor paid down a small fee.
"For receiving and filing the petition, fifty cents; for filing specifications, ten cents the hundred words; for making out the patent, two dollars; for affixing the great seal, one dollar; for indorsing the day of delivery, twenty cents.
"It was a long document, for which the patentee was charged four dollars and a half.
"But the men whose clumsy machines and crude devices had been thrown out raised a great clamor.
"The power of the board was too great.
"It was outrageous that their decision should be final. There ought to be an appeal. Jefferson combated this, but the cry was heard. The law of 1790 was revised in 1793 and revised for the worse. The duty of granting patents was lodged in the Secretary of State alone. He was forbidden to reject any application not likely to be hurtful to the interests of the people, and the cost of patents was greatly increased. For forty-three years this law continued in force. Then the evils which grew up under it became so rank that Congress was again forced to interfere. Five months later, December 15, 1836, the Post Office building was burned to the ground.
"With it went the seven thousand models of the Patent Office, by far the noblest collection the world could then show. When the next fire occurred, forty-one years after, the Patent Office had obtained a building of its own, and the seven thousand models of 1836 had become two hundred thousand in 1877. It is deeply to be lamented that, of the many thousands destroyed in 1836, so few have ever been replaced. Not even a complete list of them can now be had. Yet, most happily, it is not impossible to form from the fragments of information gathered elsewhere some conception of the ingenuity of our countrymen.
"One had invented a grain cutter, a dock cleaner and a threshing machine. No precise account of his work has come down to us. But we are told that with his reaper one man could cut five acres of wheat a day, and that his thresher could easily beat out as much grain in twelve hours as forty men. Another had devised and put up a water mill for roping and spinning combed wool and flax. A third had invented a candle machine, had made candles from the lees of the right whale, and had seen his work displayed and warmly praised in a long memoir by the President of the Agricultural Society of New York. A forth had discovered a way of turning iron into steel. A fifth had encased himself in a strange apparatus, had surprised the fishermen of New London by going down in four fathoms of water, had walked upon the bottom, and had come up after being three minutes in the sea. A sixth took out a patent for a machine which has made him name famous ever since.
"The inventor was Whitney, and the machine he called a cotton gin.
A Japanese Patent Law
Determined upon progress, the Japanese have at length passed a patent law. The new law appears to be compiled from similar laws of other countries -- a clause from England here, from France there, from Germany, in another place, as seemed advisable in the circumstances. The term of protection is 15 years; "articles that tend to disturb social tranquility, or demoralize customs and fashions, or are injurious to health," and medicines cannot be patented; the inventions must be publicly applied within two years, and patents will become void when the patented articles have been imported from abroad and sold; the fees are low, and there are no annuities or annual payments required for keeping the protection in force, as in many European countries.
Government Investigation of the Bell Patents
The Bell telephone patents seem to be peculiarly favored by fortune. After adverse action by the circuit courts, their opponents sought the aid of the government, endeavoring to make it assume the role of public prosecutor, so as to decide the validity of the patents finally on their merits. The Attorney-General's department was manifestly the proper one to prosecute the case. But on reference to him, it was found that he owned some outside telephone stock, was therefore interested in the defeat of the Bell patents, and so could not properly act as a prosecuting officer. Hence a suit that had been gun by his subordinates, and which was started on such a basis as would, if anything has that power, insure the full trial of the case, had to be discontinued. Their fortune did not desert the Bell Company. The most menacing suit ever instituted against them was stopped.
It is of imperative necessity to the public that these patents be impartially investigated by a competent tribunal. The suit just discontinued was a public need. What the Attorney-General's duty is in the matter is hard to say. It would seem asking too much to suggest his resignation. If, while owning stock in an adverse company, he was to prosecute the suit, public opinion would be clamorous against him, would make him waver in his action, and would unquestionably bias the mind of the court strongly against him. He might sell his stock, but even if he did so, he would still appear to be working for the cause of his friends. The ownership by the public prosecutor of a few shares of telephone stock has become lifted into the dignity of a national misfortune.
The rejection of Morse's claims to the transmission of signals by electricity is historic. He was trying to patent a natural force. The patentee of the telephone has in effect done this very thing. His claim as construed by the circuit courts covers the transmission of articulate speech by electricity. His lawyers, with wonderful ingenuity, have captured the minds of the judges. They have evolved a theory of an undulatory current, and of corresponding movements of the two telephone diaphragms, that they can stretch to cover any electric telephone. A point of such abstract theory as this is made one of the central features of their defense. The probability that there is no such thing as an electric current, the incapacity of an induction coil for generating a continuous current in any sense, the probable inoperativeness of an undulatory feature that may be accidentally present in telephone currents, are all lost sight of, or cleverly evaded, and the fiction of an undulatory current is kept up. A number of suits have been decided on final hearing by the circuit courts, and always with the same result, a victory for the patents. But just as inevitable as the result was an incompleteness in the issue as presented. The defendants always made admission of some of the points of attack. Infringement was admitted in one case, claims of other inventors were left out in others. The question of validity never yet came to trial upon its merits. At last, in the western district of Pennsylvania, such a case came up on motion for preliminary injunction. Every effort was made to meet the motion by a full defense. All the points that could be raised against the Bell patents were to be used. Even a series of Reis and other telephones were prepared for exhibition, and personal auricular trial by the court to prove anticipation.
The case was opened by patentee's counsel, in an elaborate address, lasting several days. After the opening had been only commenced by the defendants, the judge announced that he should in any case be guided in his decision by what his brethren of the circuit courts had already done, and should grant the injunction. This action was taken in the face of the fact that a new set of issues, because a complete set, were open for the judge's consideration. Of course in the normal course of things the suit will come eventually to a final hearing, but the treatment of the elaborate and full resistance to a preliminary injunction is a good illustration of the remarkable prestige held by the owners of the Bell patents. From the character of the counsel and capitalists engaged and interested in the suit, much may yet be hoped for from it.
Distinct allegations of fraud in the granting of the Bell patents bring them within the province of action of the Attorney-General. He could have tried the case in the circuit and eventually in the Supreme Courts, as no one else could. The action would come from such a new quarter that the circuit court judges would be to a greater or less extent free from the influence of former decisions. A way seemed to have been found in which to try the case de novo, upon its merits, unaffected by decisions in other cases. Unfortunately, it had to be abandoned.
The natural tendency would be to look to the Supreme Court for the remedy. The Bell patents have never appeared before that tribunal. When they do, in the natural order of the different suits, the first decisions will be rendered upon incomplete issues. Before a full presentation of the case is made, the Bell Company in every probability will have secured several Supreme Court decisions. Each of such decisions will make the ground of attack doubly hard for the next suitor. Thus it appears that there is little chance for a decision that will be satisfactory, because a complete one, for many months; and when the time for such action arrives, the court will quite probably have behind it and be guided by a series of decisions in the patent's favor. All this shows how well the case has been engineered by the eminent counsel retained by the Bell Company. The patent, in itself, is far from being the basis of the prosperity of its owners. It has not merit enough in it to give it that position. But a combination of great business with great legal talent has made it the cornerstone for an unprecedented structure. One hundred millions of dollars at the time of the hearing of the Drawbaugh suit was commonly assigned as the value of the interest. Since that period it has certainly increased in value and in apparent stability. This immense monopoly rests on and is based on the theory that in all telephone systems speech is reproduced by "an undulatory current of electricity." A more slender basis, owing to the absence of a rational theory of electricity, could not be imagined.
The Department of the Interior has at last taken cognizance of the state of affairs. Secretary Lamar and Commissioner Montgomery are to have the counsel and representatives of several telephone companies appear before them for the consideration of the following questions: 1. Has the government a right to institute proceedings to set aside the Bell patents? and 2. If so, are the facts such as would warrant the bringing of such an action? If the questions are decided in the affirmative, and the Attorney-General is requested to prosecute, he will do it more gracefully than before, but still will be overshadowed by his ownership of telephone stock. The courts will be influenced in favor of the Bell patents by it, just as was feared in the discontinued suits.