ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1838


25th Congress, 3d Session, House of Representatives, Document No. 80
Patent Office
Report from the Commissioner of Patents
Transmitting Information in relation to the Duties of his Office for the year 1838
January 14, 1839
Read, and laid upon the table

Patent Office, January 1, 1839
Sir: In obedience to law, the Commissioner of Patents has the honor to submit his annual report.

During the year 1838, five hundred and twenty patents have been issued, of which classified and alphabetical lists are annexed; (marked A and B.)

During the same period, two hundred and twenty-four patents have expired; as by list (marked C.)

The receipts of office for 1838 amount to $42,123.54; from which may be deducted $3,700 paid on applications withdrawn; (marked D.)

For the restoration of models, records, and drawings, under the "act of 1837," $14,458.74 have been expended; a detailed statement of which is annexed, (marked F.)

The ordinary expenses of the Patent Office, the past year, were $19,180.18; leaving a surplus of $19,243.36 to be credited to the patent fund, (marked E.)

The number of patents issued in 1838 exceeds that of 1837; and the increasing confidence in the patent law will doubtless continue an increasing stimulus to genius and science in their application to practical and useful objects; advancing alike the interest of agriculture, of commerce, and the arts.

The provisions of the act of Congress by which the Patent Office has been reorganized, have been noticed, with high commendation, in many scientific publications in Europe; and, I am happy to say, have, in their practical operation, met with very great favor among those of our citizens whose rights and interests are directly or indirectly affected thereby. Wise and beneficial as the operation of the law is, generally, there are one or two particulars in which experience suggests the propriety, if not necessity, of some modification.

The board of examiners, occasionally appointed in cases of appeals, is attended with inconveniences, not foreseen, which ought, if possible, to be corrected.

This tribunal was provided, it is presumed, to relieve the apprehensions some might have entertained, from the power necessarily conferred, and the duty imposed upon the Commissioner, to withhold a patent in every case where the claim is destitute of merit or originality. Contrary, perhaps, to the intention of the framers of the law, it has been construed to open the whole matter, on appeal, to the reception of additional evidence, leading to much delay and expensive litigation before the board.

The compensation provided for this board of examiners appears to have been predicated upon the idea of a brief and summary duty, and is so small that few of requisite qualifications are found who will consent to undertake it.

Hence much delay arises in constituting a board, whenever an appeal is made; and different individuals being appointed in different cases, their rules and course of proceeding are various and unsettled. The examination into the originality of an invention, or supposed discovery, preliminary to the issuing of a patent, and the settling of interfering claims to patents, must necessarily be, in some measure, summary. But the decision between contesting parties is, in all cases, subject to judicial corrections; and a final adjudication is, by law, as it ought to be, referred to the courts.

It is submitted whether the Commissioner could not be authorized to prescribe, with advantage, the necessary rules for the taking of testimony to be used in the hearing before him; and to make suitable regulations for a full and fair hearing of all parties interested.

As a remedy for the evils alluded to, (of which parties complain,) I beg leave to suggest, as a substitute for the board of examiners, the expediency of allowing an appeal to the chief justice of this District, giving him power to examine and determine the matter summarily at chambers, or otherwise, on the evidence had before the Commissioner. From the experience had, thus far, it may be presumed that the judge would have but few cases to examine, and that those would not materially interfere with his other judicial duties. A reasonable compensation for such duty may be made from the patent fund. Parties from a distance could then have their cases settled, without the great delay or trouble to which they are now subjected.

Three dollars are, by law, chargeable for recording assignments of patents. As the transmission of such small amounts to the office is often attended with inconvenience, it is respectfully suggested that this duty of three dollars may be dispensed with, and the recording of assignments done free of charge; especially as the amount received annually for such records does not exceed $1,500, and the other duties paid into the office are amply sufficient to meet all the current expenses.

Much inconvenience is experienced for want of accommodations which the new Patent Office building is intended to afford. Many highly interesting and valuable models are necessarily exposed to injury for want of proper means of protection and preservation. Besides, the hall in which they are at present kept is becoming too crowded, and there is no other suitable place even for a temporary deposit of them. It is not among the least of the evils arising from the delay in the completion of the building that has been so long under construction, that it delays the reception of those beautiful specimens of the arts and manufactures, for which room is to be therein provided, and which promise to be of so much interest to citizens from all sections of our country. The present prospect affords abundant assurance that this national repository of the arts and manufactures of the genius and science of our country, will, in a short time, be found worthy of the republic, and be a just source of pride to every American.

It cannot fail to merit the fostering care of the Government in carrying out designs conceived in so much wisdom and patriotism.

To some who have contemplated the building only as a place for the reception of patented models, the plan has appeared too extensive; but when it is recollected that the numerous articles of American cutlery alone would fill one of the largest rooms, a fear arises that the Commissioner will soon have to limit the contributions offered.

It is by law made the duty of the Commissioner to cause every invention for which a patent is claimed, to be carefully examined, and grant patents only for those which are new. it could not well be foreseen what amount of labor would be employed in this service. The interest of the public generally, as well as that of the patentees and their assigns, is very much promoted by a prompt as well as just discharge of this duty.

It requires scientific qualifications, an acquaintance with foreign languages, and the attainment of an extensive knowledge of the whole range of inventions and discovery in Europe and America. These are possessed by but few. In addition to this, it is the duty of the office to furnish applicants for patents with information which may be necessary to enable them to shape their specifications and claims so as to avoid trespassing upon the rights of other inventors or of the public, and, as far as practicable, steer clear of those legal objections which have so often laid the foundation for expensive and ruinous law suits.

The proper discharge of these duties requires diligent and extensive research, and a knowledge of that branch of the law at least which pertains to the subject of patents, embracing the decisions of our own as well as of foreign courts, in patent cases. For the performance of the important duties referred to, the law provides for two "examining clerks" only, who, in addition to the ordinary services of the office, must have time to make themselves conversant with the current intelligence of the day relating to the progress of science and the arts. A great portion of the correspondence is of such a nature that it necessarily devolves on them, because the information and explanations sought are within their peculiar province. These essential and laborious duties cannot all be performed by two clerks; and I respectfully renew my recommendation that the appointment of two assistant examiners be authorized by law. The time of the two examiners appointed under the existing law has been most laboriously occupied in these duties; yet the state of the business in that department has left me to choose between leaving much of it undone, with great prejudice, delay, and dissatisfaction to numerous applicants for patents, or to employ, without authority, such additional aid as could be had. I felt constrained to adopt the last alternative; and with such additional aid I have been unable to keep up the business in the examiner's department.

There are at the present time over one hundred applications for patents that have not yet been reached by the examiners; besides about two hundred which are in various stages, many of them returned for alterations, and which have to be again examined and considered. Without more force, the cases on hand cannot all be disposed of for several months. The duties devolving on this department will employ the constant and laborious services of four clerks. The applicants come from distant parts of the country, and ought to have their business attended to and completed in three or four days. They often wait weeks, and even months in some instances, on expense, before their turn arrives. The expenses of the department are wholly defrayed by them. They, and not the public, which derives much the greatest benefit from their inventions and discoveries, are taxed for its support. They therefore complain, and it will be considered whether justly or not, of being subjected to much delay and expense, arising only from a want of sufficient clerical force in the office.

Sudden and pressing applications for office copies have frequently compelled the Commissioner to employ extra aid; and since it may not be deemed expedient to appoint permanent clerks to perform contingent duties, I would respectfully recommend that the Commissioner be authorized to procure such transcribing of records or copies as may be necessary, allowing for the same not exceeding the sum fixed by the patent law for office copies.

With such additional assistance, it is believed that the business of the office could be performed with despatch.

I deem it a duty to mention again, that the only appropriation for the library of the Patent Office was made in 1836; and instead of purchasing, as was then contemplated, the more rare books in foreign countries, relating to patents and the arts, the funds were necessarily taken to replace duplicates in daily use before the late destructive fire.

If the law requires the Commissioner to take notice of domestic and foreign inventions, he must surely have the books requisite to give this information; among the most indispensable are the periodical publications. I would therefore recommend an annual appropriation from the patent fund for this object.

The calamitous fire which destroyed every article contained in the Patent Office, has compelled the Commissioner to prepare a digest of all the patents issued by the Federal Government. This has been done from authentic documents, and the same will be published under a new, and it is believed, highly improved classification.

The models and drawings, also, now amounting to several thousands, will be arranged in corresponding classes. This digest is so indispensable to each clerk, that I find it necessary to cause a small edition to be printed, as the most economical method of procuring the requisite number of copies; and as the publication of a larger edition than the wants of the office require would be attended with but little additional expense, the opportunity is presented of providing each State with several copies, affording, as it will, very useful information to the public generally.

I cannot omit to notice the failure of Congress to make any appropriation for the use of rooms so kindly offered to the Patent Office by the city authorities, and who have only required a remuneration for the actual expense incurred, in consequence of the accommodation.

I will only add, that the increasing wants of this office can all be supplied from the annual revenue credited to the patent fund, without any requisition on the general Treasury.

Very respectfully, your obedient servant.

H.L. Ellsworth

Hon. James K. Polk
Speaker of the House of Representatives

----------------

                           D



Statement of receipts for patents, caveats, disclaimers, 

improvements, and certified copies, in the year 1838

Amount received for patents and caveats  $40,510.00

Amount received for office fees            1,613.54

                                         __________

                                                     $42,123.54

Deduct paid on withdrawals                             3,700.00

                                                     ___________

                                                       38,423.54



                     -----------------



                           E



For salaries                             $13,890.19

For contingent expenses                    5,289.99

                                        ____________

                                                       19,180.18

                                                       __________

Leaving a net balance to the credit of

      the patent fund                                  19,243.36



                       -----------------



                              F



Statement of expenditures on the restoration of the Patent 

Office, under the act of Congress passed 3d March, 1837



For restoring records of patents         $1,868.69

For draughtsman                           7,448.39 1/3

For examiners and registers               2,491.76 2/3

For drawing instruments and furniture       250.87 1/2

For printing                                 30.00

For stationary                              194.98 1/2

For restored models                       1,261.80

For restored models                         496.25

For freight of models                       415.98

                                        _______________

                                        $14,458.74

Henry L. Ellsworth
Commissioner of Patents
Patent Office, January 1, 1839

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Letter from the Commissioner of Patents to the chairman of the Committee on Patents, in relation to the collection and distribution of seeds and plants

Patent Office, January 22, 1839

Sir: I have the honor to acknowledge the receipt, this morning, of a letter of the 21st instant, from the honorable chairman of the Committee on Patents, requesting the communication of any information relative to the collection and distribution of seeds and plants; also, the practicability of obtaining agricultural statistics, with the addition of any suggestions deemed important in relation to these subjects; and hasten to reply: That, in the discharge of official duties, I could not fail to notice facts deeply connected with the subject of agriculture, and so far as I was able, without the neglect of primary obligations, to give all the adventitious aid in my power to this important branch of national industry.

The beneficial effects attending the selection of a few seeds are attested by many members of Congress, through whose kindness the Commissioner has been able to distribute them.

Numerous letters give assurance of the improvement of the corn crop in the Southern and Western States, by introducing a prolific variety. The successful application of the principles by which this prolific quality was attained, has awakened the attention of agriculturists to this important subject, and inspired them with the hope of improving other seeds and plants by the same method. The sexuality of plants, and the practicability of crossing the same, are no longer matters of doubt; and great improvements may be anticipated from new experiments.

Planters in the rich valley of the Mississippi are confident that the "Baden corn" will increase their crop of maize fifty per cent; some estimate it much higher; and all agree that the introduction of this seed will increase their agricultural products several millions of dollars annually, in that valley alone.

The distribution of early varieties of maize has not been less beneficial to the Northern sections of the Union. Good crops of maize have been raised the past year on the confines of Canada. The wheat distributed from the Patent Office has been successfully tested; and many large fields will be planted the ensuing season, for the first time, with the Italian or Siberian spring wheat.

Not being authorized to incur expense, the Commissioner has ventured to invite the transmission of seeds, gratuitously, from distant parts, trusting that Congress will at least, authorize their distribution.

Arrangements could be made for the exhibition of different kinds of grain, exotic and indigenous, in the new Patent Office. Can it be doubted that samples of fifty varieties of Indian corn and one hundred and fifty varieties of wheat, with numerous other grains, showing the plant itself, the weight of seed, the usual product, and the latitude where produced, will be both interesting and useful, and afford much valuable information?

From the exploring expedition large contributions are expected; and the cheerfulness with which the commanders of our national vessels, and also the diplomatic corps, have offered to aid in the matter, justifies the expectation of great advantage from the proposed effort.

The export of agricultural products from the United States is officially estimated by the honorable Secretary of the Treasury at eighty millions of dollars annually. The home consumption must be far greater.

An increase, by a better selection of seeds, only ten per cent, must secure a gain of upward of twenty millions of dollars each year.

I rejoice that agricultural statistics have been deemed worthy of an inquiry by the honorable committee.

Other enlightened nations have ranked such information amongst the most important, in providing for the public wants, guarding against speculation, and as a means of estimating the probable state of exchange, so far as it is affected by a surplus or scarcity of crops.

The benefit of national statistics, as well as the practicability of obtaining the same, may be estimated from the success attending the efforts of individual States, and particular of Massachusetts. The wise and liberal policy of the Legislature, in collecting similar statistics, has met the cordial approbation of all her citizens.

It cannot have escaped notice how many fears were entertained in the Middle and Southern States on the failure of the crop of maize the last season. The timorous and cautious made forced sales of their stock, which they feared would otherwise perish during the winter. Monopolists commenced their speculations; corn rose to $1.50 and $2 per bushel; at the same time, beyond the mountains, the crop of maize, in many places, was seldom better. Such has been the abundance on the waters of the Missouri river, that the Government has been able to make large contracts for corn at 12 1/2 and 15 cents per bushel.

The Commissioner of Patents would cheerfully, if desired, collect, as far as possible, agricultural statistics from different sections of the United States, and present the same to Congress, with his annual report. Such statistics might be useful to the Government in their financial estimates, and certainly would be to the citizens generally.

From the Patent Office, allow me to say, much encouragement, it is believed, can be given to agriculture without a neglect of present duties.

A new era seems, indeed, to dawn upon this long-neglected branch of national industry. The introduction of new labor-saving machinery; the preparation of flax for spinning on common cotton machinery, without rotting; the extraction of sugar from the beet, in a method recently discovered, so simple and expeditious as to enable every family to supply itself with one of the necessities of life; the culture and manufacture of silk, thereby saving in imports twenty millions of dollars annually; all conspire to make this epoch one of the brightest in the history of our republic.

It must be mortifying to an American to reflect that the importation of flax seed, from the Indies, has been among the most lucrative commerce the present season. With land admirably adapted to the culture of this vegetable, which once constituted so great a portion of domestic manufacture, and afforded a considerable staple of export, it must astonish, at least the citizens of the old world, that we now depend upon cultivators of the soil beyond the Cape of Good Hope for supplies of linseed!

I cannot omit to notice that the efforts of Government to obtain, through her navy, foreign seeds and plants, have failed, from the inability of collectors in the different ports to distribute the objects transmitted. Nor will the patriotic designs of the nation be accomplished, until some depot shall be established to receive, classify, and disseminate the generous contributions daily offered. The new Patent Office building will afford room for the reception and exhibition of seeds, and a small requisition on the patent fund (expressly constituted to promote the arts, and which cannot be diverted without special legislation) will enable the Commissioner to find a remuneration from expenses already becoming onerous to himself individually.

With the highest respect, I am yours, obediently,
Henry L. Ellsworth
Commissioner of Patents

Hon. Isaac Fletcher
Chairman Committee on Patents, H.R.


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