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United States. Patent Office.

Report of the Commissioner of Patents for the year .. online

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ber 31, 1863.



Tttan.


Applications
filed.


Caveats
filed.




Cosh received.


Cash expended.


M38!~imirriiiiii!!iii!m!






435

530

425

473

495

517

531

502

502

619

572

660

1,070

995

869

1,020

958

1.903

3.024

2,508

2,910

3.710

4,538

4.819

3.340

3.521

4,170


$39,389 08

42,123 54

37,260 00

38.056 51

40,413 01

36.505 68

35, 315 81

42.509 26

51, 076 14

50,364 16

63, 111 19

67,576 69

80,752 78

86,927 05

95,738 61

113,066 34

121, 527 45

163, 789 84

216,450 35

192,588 03

196. 132 01

203,716 16

245, 94-3 15

256,352 59

137,354 44

215,754 99

195,593 29


•33,506 98
37, 402 10


'ip» .. ,..,,






34. 543 51


IMO


765
847
761
819
1,045
1,246
1,272
1,531
1,628
1.955
2.193
2,258
2,639
2,673
3,324
4.435
4.960
4,771
6,364
6,225
7,653
4.643
5,038
6,014


228
312
291
315
380
432
448
553
607
595
602
760
996
901
868
906
1,024
1,010
943
1,097
1,064
700
854
787


39.090 67


IHl


52.666 87


IMS


31.241 48


I80


30,766 96


IBM


36,344 73


ne


39.395 65




46,158 71


18S7 ^


41.878 35


»0


58.905 84




77.716 44


ttSO


80.100 93


VS1 .


86,916 93


MS9 . .


95, 916 91


WM| . .


132,869 83


1B4


167. 146 3d


IflS


179, 540 33


USA


199,931 02


ma


211,582 09


MSB


193, 193 74




210. 278 41


I8tt


232.830 60


vm


221, 491 91




182, 810 39


MB ..


189,414 14







The law requiring the Commissioner of Patents to communicate to Oongresa
an nmiial report, contemplates that in addition to statistical statements and
tables, such as have been above given, he should present his reflections
vpoa the working of the laws he is called upon to administer, and exhibit a
view of the progress of the arts of the counti^, which it is his peculiar privilege
to obsuT'e. In discharging this duty,^ shall take the liberty of departing from
die fbnnality of a mere official communication, and address myself through
Concr^s, by whose munificence the reports of this office are so widely dissemi-
nated, to the public, for whose benefit tney are mainly intended.

The subjects to which I shall call attention are, the policy of any system of
protection by patents ; the advantages of our own system as compared with those
of odier leading industrial nations, and particularly Great Britain ; the state of
tfe industrial arts in this country as exhibited by the inventions examined in
dni office within the last one or two years ; and the modifications of patent laws
wUcb, in my judgment, would give greater efficiency to oar present system.

POLICY OF PROTECTION BY PATENTS.

I am aware that to most inventors in this country it would seem not less
preposterous to question the right of property, or the fundamental laws of mo-
tility, than to inquire into the right and policy of granting patents for inventions ;
but we cannot shut our eyes to the fact that within the last few years the policy
of patent laws has been &e subject of grave discussion in Europe. No later
ftm 1862, a distinguished member of the House of Commons in England gave
■otice of a motion to consider, not the working, but the policy, of the patent law
itieif ; and in a debate which arose in May, 1862, upon a motion of Sir Hugh
CainMW for an address to the crown, praying for the appointment of a commis-
m to inquire into the working of the law relating to patents for inventions,
Bcmbers m Parliament stated that year by year the oninion had grown more
gCMial that, practically, patents did more harm than good to inventors. In 1852
t sckct committee of the House of Lords was appointed to consider a bill pro-



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4 REPOET OF THE COMMISSIOKEB OP PATENTS*

posed to amend the then existing law of patents. The volnminoas ovideneo
taken before this committee has been published, and is fnll of instraction as Co
the working of the patent laws in Great Britain, and the questions which aro«^
as to the policy of tnose laws. The character of the questions which were raised
as to the policy of any patent system, is exhibited by some of the interrogato-
ries proposed by the committee :

** Do you not think that the fact of a patent being granted is a considerable
obstruction to anybody else inventing in that line V*

** You think that in no case where a useful improvement in the course of a
manufacture suggests itself to the mind of a man, he would be deterred from
making that improvement for fear of being dragged into litigation by reason of
his infringing some other patent?"

** Do not yon think that the stimulus which a patent gives to a man withdraws
a great many ingenious artisans from ^heir usual and more useful work in order
to invent things which, when invented, are of no use whatever V

A question put to Mr. Brunei, an engineer of acknowledged eminence, is,
"The result of your evidence is, that you are very decidemiy of opinion that
the whole patent system should be abolished V*

His answer is, ** Yes ; I think it would be an immense benefit to that m[ifortQ-
nate class of men whom we call inventors, who are at present ruined and their
families ruined, and who I believe are a great injury to society."

" And you think that those consequences, such as ruin to inventors, and evils
of that description, would subsist equally, though the patent laws were made
simple and effective V

•* Yes, I think they would be very much increased ; and if patents are con-
tinued, I hope the principle will bo carried out thoroughly, and then it will not
stand for two years."

** I can see every day that the poorer class of inventors ruin themselves by
the attempt to Work out some idea for the sake of getting a patent, while, in ail
probability, if the man had gone to his master and said, * Well, it strikes me^
that by such a means we should be able to get through more work and do some-
thing better; what do you think about it?* the chances are that most mas
ters would, if they saw it was a good idea, give the man <£! or a <£5 note ; and
the man the next day would be at work at eompthing else, and you would have
out of that man's brains an immensely greater portion of invention, and I
believe he would get much better paid for it. I believe he would really make
money ; whereas, now, everybody acquainted with these men knows that they lose
money by it, and that an inventor, a schemer, is a poor man, who is more likely
to go to the work-house than anything else."

Mr. J. L. Ricardo, a member of the House of Commons, in his answers toiho
questions of the committee, forced the free-trade doctrines of his eminent namesake
to the utmost verge. He says, ** the result of my experience and observation has
been a conviction that the whole system of granting patents at all is very injn*
rious to the community generally, and certainly not of any advantage whatevw to
the inventor. I consider that it is in a great measure a delusion upon the in*
venter to suppose that the patent privileges which are granted to him render his
invention more valuable than it would be, supposing there did not exist any
monopoly with regard to it." He regards a monopoly with respect to a particular
trade as being in exactly the same situation as a monopoly respecting any pia>
ticular invention. " The object of a patent is to monopolize a particiHar trade."
He quotes Mr. Say, who considers a patent as a recompense which the govern-
mcnt grants to the inventor at the expense of the consumer. He quotes tho
opinion of Lord Kenyon, in the case of Homblower against Bolton, in which ho
says : '* I confess I am not one of those who greatly favor patents ; for althoo^
in many instances', and particularly in this, the public are greatly favored by



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SBPCHkT OF THB C0IO1I8610NBB 07 PATENTS. 6

\
tbcm; yet, on striking the balance on tlietabjeet» I think that great oppression
18 piacdced on inferior mechanics by those who aro more opnlent" He does
not refer to the views of Lord Mansfield, the great founder of commercial law,
who held that *'in all work of the mind and of genius, the common law of
England ought to be held as giving an absolute property." He refers to Lord
Bacon, who, in his advice to Sir George Villiers, says : " Especial care must be
taken that monopolies, which are the canker of all trading, be hot admitted under
the specious pretext of public good.** But be makes no mention of the tribute to
inventive genius which Lord Bacon proposes in his Atlantis, where he says :
** Upon every invention of value we erect a statue to the inventort and give him a
Hbe«d and honorable reward.''

The ol^ectors to the policy of a system of protection by patents, as appears
by the questions propounded by the committee of the House of Lords, and the
answers above quoted, may be resolved into three classes:

1. Those who honestly doubt whether the system of patents affects the
assumed development of the industrial resources of the nation ; 2t those who
believe that the progress of a nation is to be secured only through the en-
eouragement and instrumentality of the favored classes ; and, 3, those who, carry-
iDg t^ abstract principles of fiee trade to too great a genaralization, deny tne
policy of any law which savors of a monopoly, or effects even a temporary pro-
tection of industry or genius. The objections of the first class I will hereafter
attempt to answer in detail. Those of the second class not openly &vored under
the present political condition of affairs in this country, have found sympathy^
with a class now, happily, perhaps, removed from us, who always regarded with
contempt the poor inventors of the north. It is this spirit which breathes in the
language of the eminent engineer, who conceives that the poor inventor would
be sufficiently rewarded by receiving a one-pound or five-pound note from his-
master. It is unnecessary to reply seriously to this class of objectors. Thev
can be found only in a country where the avowed objects of the laws whicL
regulate the descent of property are the concentration of wealth in the hands-
of the few, and the sunport of hereditary aristocracy ; where the husbandmen on^
small properties have oeen driven from the land, in order that 2,000 proprietors.
jDay possess among them one-third of the land and the total revenue of the three-
kingaoms ; where the doctrines of political economy prevail that laige farms,.
large machine shops, large cotton mills, and large iron works, can produce
cb^^er than smdl ones, and therefore may very properly supersede and
obliterate them ; and whore a theologian no less respected than Dr. Chalmers.
can be found to affirm of the blessings of a splendid aristocracy, "that from this.
higher galaxy of rank and fortune there are droppings, as it were, of a bland
and benignant influence on the general platform of numanity.'*

Thetf» is, unfortunately, in this country more sympathy with the last class of
•biectors, who regard, with Mr. Ricardo, a patent obnoxious as a remnant of the
old abuse of monopolies, by wblch an individual obtained from the Grown the
ezdnsive right to exercise some particular trade, and who consider the patent
laws as a product of the semi-barbarous age of Queen Elizabeth. During her
reign the solo right to buy and provide steel within her realm was granted to a
siniele nobleman. The sde of salt, starch, leather, paper, &c., was restricted
to mvored persons, who in some cases raised the prices 1,000 per cent, and up-
wards. It was this class of monopolies against which Lord Bacon inveifi^bed.
The evils of this policy increased to such an extent, that it was considered by
the Padiiament of James I altogether incompatible with the prosperity of the
timutry. This feeling produced, in the 21st of James I, the famous ** statute of
noQopolies" — famous not only for the abolition of the former unjust monopolies
of ttiie, but for establishing the rights of inventors, which date, according to
BladEstone and other English jurists, from that law. The statute suppresses
monopoliee by making vo.d the future grants of all suebas do not come under



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6 BBPOBT OF THE COBfMISSIONER OF PATENTS.

the following proviso : "Provided also, and be it enacted, that any declaractioxi
before mentioned shall not extend to any letters patent and grants of privileges
for the term of fourteen years or under, hereafter to be made, of the sole working^
and making of any manner of new manu£Gu;tnre within the realm, to the true
and first inventor or inventors of such manufacture, which others at the time of
making such letters patent shall not use, so as also they be not contrary to la^fF,
nor mischievous to the State, by raismg the prices of commodities at home*
or hurtful of trade, or generally inconvenient." Certain patents, more of the
character of die ancient monopolies of trading, which paid a yearly rent to tlie
exchequer, were exempted from the operation of the statute. The date of the
act was 1624. In 1639, great discontent having arisen in the public mind with
lespect to the monopolies and privileges which remained, there was issued a
proclamation abolishing a great many of the privileges which still existed,
and among others ''all patents for new inventions not put in practice from
the date of their respective grants." There was thus in the general statute
4ibolishing monopolies, and the subsequent proclamation clearing away such as
subsisted, a distinct recognition of the claims of useful inventions to exemption.

It is a curious fact in the general history of the origin of the patent policy,
that the original object in granting patent privileges in France, as stated by
31. Wolowski, professor of conmiercial legislation, in the evidence before the
(Committee of the House of Lords, was to break up the monopoly of the guilds
•of trade which formerly existed in France, as well as in a}most every city in
.'Europe. All the persons practicing any one art or trade in a particular city,
isuch as the tailors, the brewers, the tanners, the goldsmiths, &c., were united into
:a company, which received from the government the exclusive right to practice
their vocation. The competition of the art or trade was thus restricted to those
"who had been made free of the company ; and no person could be made free
imtil he had complied with regulations, often intentionally made numerous and
vexatious in order to prevent too many persons entering the business. No
member of the guild could work except in conformity with its rules. An in-
tventof of any improvement in the trades practiced by the guild, not a member
thereof, could not employ his own invention ; a patent gave the inventor the
Tight of working individually, in derogation of the chartered monopoly of the
^ild. According to M. Wolowski, patents are now granted in Austria for the
-same object. Thus the dawn of the rights of inventors has been actually coeval with
the destruction of monopolies, odious to the common justice of men. And the
•common sense of mankind has marked a distinction between such monopohes
and the exclusive rights conceded to inventors. Their rights under patents are
.called monopolies only, from the poverty of language, which has failed to express
in words a distinction which no less clearly exists.

The odious monopolies, or those properly so called, such as were given in the
time of Elizabeth for the sale of salt, starch, paper, steel, &a, were grants simply
>to aid individuals in amassing wealth, and favored the aggregation of property in
.a few hands without opening new sources of national wealth, and were thus in
(derogation of the rights of others without compensatory public benefit, and were
t therefore positively injurious. Prof. Bowen has shown, in opposition to dogmas
•of Adftm Smith, that individual and national wealth are not identical ; that indi-
'viduals grow rich by the acquisition of wealth previously existing; nations, by
rthe creation of wealth that did not previously exist. " Invention," says Mr. Ray,
^according to Prof. Bowen, "is the only power'on earth that can be said to create.
It enters as an essential element into the process of the increase of national
-wealth, because that process is a creation, and not an acquisition. It does not
necessarily enter into the process of the increase of individual* wealth, because
that may be simply an acquisition, not a creation." "Hence,** continues Mr.
Bowen, " the most frequent cause of the increase of national wealth is the in-
^crease of the skill, dexterity and judgment, and of the mechanical contrivances,
with which national labor is applied." In this view, how can a monopoly of a

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EXPORT OF THB COIOOSSIONES OF PATBHTS. 7

tnde be eompared with the exdomve right hi an hiventiont How can the
excluBiye privilege to sell salt in Elizabeth's time, which added not one
bnsheLio the production, bat which enriched the monopolist and robbed the
eommoniiy, as was the fact hj raising the price from sixteen pence a bushel
to fifteen shillings, and the exdnsive right of Whitney to his inrendon of the
cotton gin, whi^ has added hundreds of millions io the products and exports
of the countiy, be both branded, with equal justice, with the odious name of
monopoly?

The argument of the distinguished member of Parliament, Mr. Bicardo, against
patents, on the ^und of their being monopolies, may have less weight when the
immediate practical grounds of his objections are considered. It appears from
his evidence before the committee that he was chairman of the Electric Telegraph
Company — ^the great company which, imder Mr. Wheatstone's patents and a
charter from Parliament, exclusively controlled the system of tel^^phic com-
mnnication in England. This company paid for the patent rights under Mr.
Wheatstone the sum of ^140,000, and tbiat the company had paid nearly ^200,000
in buying patents and litigating them ; that the company had bqpght up a very
kffge number of patents which interfered with their exclusive rights, because
they had made it a rule, if a man ofiered reasonable terms, to buy an hivendout
however bad it might be, sooner than litigate it; and that they paid for one
patent — that of Mr. Bains — d€8.000 or <£9,000, which, although it did not quite
come up to the expectation of the company, they found useful in combination
with other patents. The obvious question occurs, how, but for the existence of
the patent laws which recc^ized the rights of the company to the exclusive
use of Mr. Wheatstone's and Mr. Bains's patents, for which they had paid the
inventor a full equivalent, could thev have had the means of reimbursing them-
selves for the vast expenditure for the original and competing patents i What
more instrucdve illustration could be found, except the whole free-trade policy
of Oreat Britain, of the follacv of political economy founded simply upon the
individual interests of men and nations 1

It is gratifying to observe that Mr. J. S. Mill, admitted to be the ablest living
writer upon political economy, and a strong advocate of fr^ee trade, thus frankly
admits the reasonableness of granting patent rights: ''The condemnation of
monojpolies," he says, "ought not to extend to patents, by which the originator of
a new process is permitted to enjoy, for a limited period, the exclusive privilege
of using his own improvement. This is not making the commodity dearer for
his benefit, but merely postponing a part of the increased cheapness which the
poblic owe to the inventor, in order to compensate and reward him for the service.
That he ought to be both compens^d and rewarded for it will not be denied ;
and also, tktt if all were at once allowed to avail themselves of his ingenuity,
without having shared the labors or the expenses ^vhich he had to incur in briog-
iog his idea into a practical shape, either such expenses and labors would be
undergone by nobody, except by very opulent and very public-spirited persons,
or the state must put a vidue on the service rendered by tne inventor, and make
him a public grant. This has been done in some instances, (as when Parlia-
ment offered a reward of <3e20,000 for a method of finding a ship's longitude at
sea,) and may be done without inconvenience, in cases of very conspicuous
public benefit; but, in general, an exclusive privilege of temporary duration is
pcefecable, because it leaves nothing to any one's discretion ; because the reward
OHiferred by it depends upon the invention's being found useful, and the greater
the usefulness the greater the reward ; and because it is paid by the very persons
to whom the service is rendered, the consumers of the commodity." — rolidcal
Economy, vol. II, page 497.

I now recur to the first and most important question, whether the patent
V^acy has actually increased the industrial resources of nations.



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8 BBF(ttT OF THE 0OiaCIB8I0N£B Or PATEZTTS.



It is grateftd to refSn* to the teitimoiiy upon this point, given before the oott
mittee before referred to, by intelligent practical men» thoronghlj familiar with
the (deration of the patent laws and the condition of the arts in Great Britain.
Mr. Carpmad, a patent a^t of great experience, in reply to the onestion, "Are
yon of opinion that the present patent law might be safely repeated altogethert
and inventions d^»rived of all privilege of protection f ' replies, ^ I can oiSy say
that I can see no indnoement to an inventor to come forward to benefit the man-
uBEkctorers of the conntry, unless yon give him some reward. Looking throngh
the history of the whole of the mannfactares of this country, yon will find that
all the steps have been fonnded upon patents, from the earliest date np to the
]^«sent time. Take any branch, whether it be the cotton manu&duie, the steam
engine, the mann&cture of flax or wool— in the case of every one, if we trace the
history of it thronj^, which I should be happy todo if it were necessary, it will
be seen that the whole svstem is baaed upon patents. Pi^ier-making is the same,
and so in every branch, tnat I remember." ]Being asked, <' Gan you, without diffi-
culty , point out a certain number of very important inventions^ which were pre-
ceded by such costly experiments that they could not have be^oi carried out with-
out the patent law ?" mr. Carpmael says : ** Watt, in the case of the steam
engine, was seven years before he got the first engine to work efficiently. In the
case of Arkwright's machine for spinning cotton, he was several years before he
got efficiently to wort;. In the case of Crompton, the same ; in the case of Har-
graves, the same* Then, in r^ard to combing wool by machinery, and the first
power-loom by Cartwright, he did not succeed in getting practically to work for
many years, imd he was rewarded by Parliament for what he had done, because
he had not been remunerafced in the working of his patent The paper machine
was woriced out bv a series of costly experiments, which nqver would have been
entered upon but mr the patent laws of the country. In this manner might I
go througn aU our manufactures ; indeed, in no instance has any manufacture
grown into importance in this country, except by a series of costly experiments,
and costly machinery, carried on for many years, in the hope of deriving benefit
through erant of letters pat^t."

Mr. Webster, the well-known writer on patent laws, stated before the com-
mittee : " I am quite sure of this, that if any person who may be disposed to
think that patents should be done away with, comes to examine the way in
which particular manufactures have been built up by reason of the large ainount
of capital which has been thrown into them, in reliance ujoon the acticm to be
obtained by means of the protection given for a short tune, he will be very
much surprised. In some of the most auccessfUL inventions of the present time,
it will be found that the first patent effected little; but, in attempting to work
this out, further improv^nents were made, and fresh patents obtained, so that
by the protection which has been given to different stages of the invention, and
the quantity of capital which has been laid out upon it, the invention has been
perfected and introduced, and made useful to the public in a time within which
it never could have been done but for the money which has been employed upon
it, in reliance upon the protection of the patent. The whole of our experience
of cases before the privy council is proof of that, and leads to the conclusion



Online LibraryUnited States. Patent OfficeReport of the Commissioner of Patents for the year .. → online text (page 11 of 164)