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

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posed he had arrived at an invention, could obtain temporary protection during
uie time that he was endeavoring to perfect it by experiments; and while making
the experiments, there was the danger of their publication, and thus pre-
venting the obtaining of any patent at all. In 1852 the legislature 'provided
that, upon an inventor lodging a description of his invention, he should have a
provisional protection for six months. The second change was in reference to
the publication of specifications. Up to 1852 the specifications were kept in
writing in certain very obscure offices in London, and were virtually inaccessible
to the manufacturers of the kinsdom. The act of 1852 provided that all spe-
cifications should be printed and sold at a moderate price. A mode of payment
entirely novel was originated in 1852. An inventor suing for a patent pays
d€5 on lodging the provisional specification, and he pays nothing more for six
months ; at the end of six months, if he wishes to obtain a grant, he pays a
sum of o£20, and he pays nothing more for three years ; during the three years
he is able to consider whether the patent is worth anv further outlay, and if so,
a payment of <£50 carries him on for seven years ; auring the seven years he
has the opportuni];y of considering again whether the patent is worth any further
outlay ; and if at the end of that time he wishes to be further protected for fou»*
teen years he has to make a final payment of nClOO ; the total payment is, there-
fore, eC175. And it is held that the payment being made by instalments, and
increasing only as the profits of the invention might be supposed to increase, it
is hardly irksome in any degree to the patentee — a view, I may remark, bv no
means supported by others in England who have discussed this feature of the

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present law. The honorable member inquires what had been the consequence of
the change of the law in the increase of the number of patents, and the results of
his mquiries remarkably illustrate the benefits of a liberal legislation. Twepty
years oefore the act was passed in 1833 the number of patents was 108. In
1851, the year before the alteration of the laws, the number of patents was
455. In 1852-'53, after the new act came into operation, the number of pro-
visional protections for inventions was 3,260» out of which 2,050 patents wese
aetoally sealed. ^

Th^e changes, although feur from realizing the demands of the inventors of
Great Britain, were vast improvements upon the laws existing previous to that
time. Under the old law the process of an application for a patent, as stated
in the London Quarterly Review, was required to pass through no less than
nine stages and seven mstinct offices situated in different places. Indeed, the
object of sending the application through one of these offices was openly stated
In the statute of Henry YIII, c. 11, ''mat the clerks should not by any man-
ner of means be defeated of any part or portion of their fees/' If the letters
patent were required to extend to Scotland and Ireland, as well as to Englaad,
all the proi^edings had to be gone through separately in each of the three cases.
Thus the same patent may be said to have run the gauntlet of twenty-one
offices. So heavy were the fees, applied not to the expenses of the patent
offices, but mainly to swell the emoluments of the lord chancellor, attorney
eeneral, and other high officers, that the cost of a patent for the United King-
dom could not be estimated at less than eC350, while the attendant expenses of
preparing the specification, &c., often doubled the amount. It cannot be won-
deied that Mr. Dickins's poor inventor was forced to complain : '* Is it reasonable
to make a man feel as if, in inventing an ingenious improvement meant to do
good, he has done something wrong 1 How else can a man feel when be is met
with such difficulties at every turn ? All inventors takmg out a patent^ must
fed #0. And look at the expense. How hard on me, and how hard on the
countnr, if there is any merit in me, (and my invention is took up now, I am
^umknil to say, and doing well,) to put me to all that expense before I can
move a finger I"

Under the present, as well as the old laws, the only investigation which
aSeged inventions undergo before patents are granted is conducted by the law
officers of the crown. They never inquire into the novelty of the invention.
All that th^ do is to see that the alleged inventor describes in a clear and
intelligibie maimer what he claims as his invention, so that he may not add to or
take firom it.

The system of granting patents in Qreat Britain without previous examinatibn
as to novelty has led to the granting of a great number of patents for the same
thkig — an evil which became so great as to lead to the publication of aU the
specifications, which only partially remedies the evil. Mr. Woodcroft says, "that
having found so great an abuse to exist, as to granting patents for the same
thing over and over again, he was led to prepare a list of those which related to
the origin and progress of steam navigation." " I found," he says, " that no step
in the art of steam navigation had been made which was not the subject of a
patent. Among 400 patents, I found that a verv few heads would comprise the
whole of the inventions; for instance, of vertical paddle-wheels there have been
a score of patents which are identically the same in mechanical action ; for
drawing water at the bow of a vessel and pumping it out at the stem, there
havebeien another score or two; then for making the float-boards of paddle-
wheds move in various directions on their axes, there have been also as many
patents; and for propellers in imitation of ducks* feet, there has been a large
nanber of patents." A striking instance of the evil resulting from this system
IB taken from Mr. Woodcroft's evidence. He says : "I have known of a patent
wttkbr the last year upon which a gentleman had spent about <£1 1,000. He

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came and consulted me, And wanted me to go and look at a boat be bad been
constructing. I said it is (^ no use; I have seen the drawing, and the invention
is aa old as the hills, and you will never drive the boat six miles an hour; in
ki addition to that, the invention is not yours^-it has been patented over and over
again." Mr. Hodge» an English patent ag^t, who had personally witnessed
the practical working of our system of examination, Mid heartily approved of it,
speaking of the English practice, says: "Many inventors have been ruined in
consequence of taking out patents under our (the English) system; whatever
amotmt the patent may have cost the inventor, it may be assailed the very next
hoar. I can refer to a case in which a patent was tried before a special jury^
upon their decision being given, the patentee went out of court i^tying he was a
rained man* And if he had not had a few friends to come and support him he
would have been ruined. If the government had appointed a board of exannner;
to examine his patent, and to show him that it was not quite original, and that
there was a little inMngement upon another patent, m would not have had
occasion to go to this great cost"

The evils of this svstem were many years since pointed out in an able article
on patents published in the Edinburgh Encyclopedia, and written by Mr.
Simpson, under the direction and sanction of the emkent philosopher, Sir
David Brewster, himself a patentee, whose beautiful optical toy, the kaleidb*
fibope, some years ago, used to delight so many thoissands of diildren, and even
wise men, with its wonderful changing polychromatic beauties. This writer,
after a severe reprobation of the then existing svstem of patents, observes, "the
causes of these aggravated mischiefs are botn before our readers, when we say
diat patents ought not to be granted of caterse, and 'at the hazard' of the pat*
entee, but causa cognita, by a sufficient and competent authority." He contin^
uea: '*Tho expression is common, that a patent may be got for anything, but
very few are found good when they come to the ordeal of a jury. Is not thiA
sajring, in so many words, that many that have, ought not to have been granted,
and that it is unworthy of this great country to pervert a valuable privilege,
and confound the trash of every pretender, whose end is answered by a mere
patent mark, with those inventions which illustrate the genius and exalt the
character of the people t"

More than thirty years afterwards Sir DaVid Brewster declared that his opin-
ions were clearly expressed in the article above quoted, that the protection of
patents ought only to be extended to new ideas, and that he would ascertain the
novelty of such ideas by means of a board of commissmners composed of 6d«
entific persons. It is duo to the pervading knowledge that a patent in Great
Britahi is not ereaprma facie evidence of the origfaiality of an invention, and
that it is of little value, except to give the patmtee a status in the courts until
it has passed a judicial ordeal, that such severe litigation exists in that country
in relation to titles to inventions. The costs of such liti^tion are sometimes
(rightful. Two startling instances are related by Sir Hugh Gairnes in the speech
in the House of Oommons, before referred to. A patent had been taken out by
an eminent manufacturer in Sheffield for an invention which effected a revolu-
tion in the manufacture of steel, by the introduction of a chemical substance,
and enabling steel to be produced at a reduction of thirty or forty per cent, on
the previous cost Mr. Heath, the alleged inventor, from the time he obtained
die patent, in 1842, till he died, in 1853, spent his life in litigation. The suit
was formally carried to the House of Lords, and he obtained a statement which
showed that the costs of the defendant were estimated at <£7,000, and those of
Mr. Heath at «£8»000, showing that the two sides had expended in litigation
connected with a single patent the sum of <^1 5,000. It appears by the state-
ment of a writer in the London Quarterly Review that this patent was extended
in 1853 for the benefit of Mrs. Heath. In August, 1853, Mrs. Heath brought
an action against an infringer^ and thevh fot ike firet time, oredible evidence waa

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giren that tbe invention was not new at the date of the original patent. A
patent was taken out in 1850 or 1652 bj a Scotch gentleman named Menzi^
for capeoles and tops of bottles. The invention being a very valuable one, liti-
gation in connexion with it was carried on both in chancery and in the courts
of common law. After, according to Mr. Montagu Smith, a verdict in favor
of the patentee, the case was taken to the Queen's Bench, where the patent
was defeated on the ground that an old patent had been discovered in the office
by which the invention had been anticipated. Finally, the case was carried by
appeal to the House of Lords, where, in 1862, it was still pending. Sir Hugh
Gaimes stated that the solicitor to the plaintiff informed him that the costs of his
client amounted to o£14,487, and he estimated those of the defendant at <£10,370.
So that the total costs of legal proceedings, in connexion with the invention,
amounted to not less than <£24,857. The legal expenses connected with these
two patents, which might have been saved to the unhappy litigants by a system
of preliminary examination, was 0639,857, or about $199,285, about 610,000
more than the total expenses of this office for the last year, viz : $189,414 14,
which, during this period, has made examination of 6,014 applications. Of
these applications, 1,844 were refused, principally upon the ground of a want of
novelty, while 4,170 patents have been granted. It is not pretended that eiTors
£rom unsoundness of judgment or inBumcicncy of investigation may not have
occurred in these decisions. But I feel confident that, as the general result of
our system, its benefits have accrued no less to the unsuccessful than to the success-
ful applicants; that while the latter have secured patents to which an intrinsic
value nas been imparted by the scrutinv to which the inventions have been sub-
jected, and by the sanction of the office are comparatively protected from in-
fringement and litigation, the former have been saved from waste of time and
labor upon well-known machines, and from the cost and misery of defending in
courts of law rights to which they could maintain no title. This view of the
benefit of a system of examination in preventing infringement and litigation
is fully borne out by observation in JPrussia, where there is an admirable
plan of examination as to novelty by a board of patent commissioners, each one
of whom is selected for his proficiency in some special department of the arts^
Mr. Weddinge, a member of the board of trade of Prussia, as well as a member
of the patent commission, stated, before the committee of the House of Lords,
that in Prussia there are very few infringements of the patent rights of patentees,
and that manufacturers generally prefer to get permission of the inventor to use
bis right under the patent

It is true that litigation to no inconsiderable extent will always exist in this
country, where such vast capital is invested in patent property, and especially
in relation to questions of interference, or those where the question of priority
arises between two inventors, both of whom may have been original authors of
the discovery ; but the amount of present litigation is trifling compared with the
vast number of patents issued, and the value of ^operty based upon them. I
assume merely that litigatiolh is most materially prevented by our system of
examination. If even this is true, it is the highest commendation of our system,
for, as Lord Langdale, the late master of rolls in England, says, " It is the great
object of good legislation to cut off the causes or sources of litigation; that I
conceive to be the object of government."

It is the dutv of patent agents, who now form so important a class of prefer-
nonal men in this country, not too earnestly to press doubtful applications, and
not to demand of the office a liberality in granting patents, whicn, if carried too
far, would destroy the system which is the foundation of their business. It is the
duty of the office to conscientiously and rigorously scrutinize every application,
and to be sure that no patent is granted for anything which is not absolutely
aew, and at the same time to see that the applicant shall have the benefit of
lAatcver, whether claimed or not, which is shown by specification, model or

H. Ex. Doc. 60 2

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drawing, to be a new invention. That both these objects have been kept in view
by the office, at least under its more recent administration, is shown by the fact that
more than half of the applications upon which patents are granted are amended
by tiie applicant at the suggestion of the office, so that he may not claim any
more than has been found by the office examination to be actually new.

The reasons urged by Lord Stanley and Sir Hugh Caimes, in the important
debate so often referred to, that a patent should be granted after an inquiry
little more than nominal and formal, it being understood that it should confer
nothing more than a right to sue in a court of law, were, that it would be difficult
to find men who were competent to pronounce authoritatively upon the novelty
and utility of an invention, and that if scientific men were selected to compose
a tribunal to pass judgment upon the novelty and utility of an invention, those
inventions which were most original, and which, in the end, would be
likely to turn out most valuable, would be most unlikely to receive
scientific sanction. It was urged, for example, "Sir Humphrey Davy did
not believe in the possibility of lighting houses with gas, and had he been
acting as a judge, would have condemned that invention as useless.'' The
last objection applies only to the examination as to utility, upon which with us the
office does not pronounce judgment. The readiness with which persons acquainted
with any particular branch of invention, and provided with facilities for inves-
tigation, can determine questions of novelty, is admitted by Mr. Woodcroft,
although opposed to the system of examination. Being asked by the select
committee wnether, supposing he were professionally employed to determine
for parties upon the novelty of their inventions, he thought he could undertake
generally to determine that point with a moderate degree of time and expense,
he replies, " If I had the whole of the specifications before me, I could do it in
a moderate degree of time, and at a moderate expense.". The facilities for de-
termining the novelty of inventions demanded by Mr. Woodcroft are most amply
provided in this office. It possesses a technological library, unequalled by any
m this country.* It has opened relations with nearly all the governments in the

•Abont 14,000 volumes have already been collected. Few or no libraries in the
ooantry are bo complete io many of the departments of useful knowledge. The collectioii
of encyclopcedias and of Bcientific and technological journals cannot be surpassed. Of
journals it possesses not only the leading ones of this country and Great Britain, but those
of France and Germany, and also those in the separate departments of science and arts.
For example, in photography there are three American, four English, five French, and
three German, llie office subscribes to ninety-five periodicals, and receives seventy-five by
donation, in addition to the Transactions of learned societies. Of these periodicals sixty-
nine are in the English language, twenty-seven published in America, and forty-two in
Great Britain, thirty-five in the French language, fifty-seven in the German, two in the
Italian, and twa in the Dutch. Of these, eleven relate to geueral science, twenty- six to arts
and manufactures, fifteen to photography, seven to civil engineering, seven to horticulture,
four to niioing, six to chemistry ,jtwo to chemistry and physics, two to chemistry and phar-
macy, thlrty-fbur to agriculture, eleven to literature, thiee to bibliography, three to statis-
tics, three to mercantile affairs, two each to acclimitizatidn, manufacture of paper, railroad
engineering, entomology, gas lighting, patents, military affairs, and architecture, and one
each to fi|ie arts, microscopy, law, electricity, medicine, medicine and surgery, pharmacy,
veterinary surgery, horology, coal oil, coach-making, printing, bees, botany, and geology.

During the past eight years the office has sent its reports to all the principal libraries and
learned societies of the world, and received in return many valuable works, besides the
regular pH]i)lications of the societies. From the Great 6eal Patent Office of England, for
example, it has received a complete set of its publications, forming a library in themselves
consisting of the specifications of patents of the old law series, issued prior to October,
1852, to be boxmd in 408 volumes of 8vo letter press, and some 350 volumes of folio plates,
378 volumes of letter press, and 378 volumes of plates of the new law series, 35 volumes
of indexes, 10 volumes of the Commissioneis' Journal, 25 volumes of abridgments of specifi-
cations, 1 volume of appendix, and 1 volume of supplement.

To enumerate the more valuable works in this library would be a long: and tedious task,
iui it is weU supplied in all its various branches, embracing in the simple subject of photo-
graphy, the literature of which is of recent growth, 144 separate and independent works,

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worid for obtaining information, up to each current month, of the progress of
inventions abroad. Its portfolios of drawings, so numerous as to crowd two halls,
each nearly one hundred feet in length, and jet so systematically arranged that
the hand can at once be laid upon any drawing sought for, and its museum of
models, unrivalled by any similar collection in Uie world, exhibit as in an open
book all that has been done in American inventions. It is the fault of the ad-
ministration, and not of the system, if the plan and facilities for examination
are not as perfect as human ingenuity 'has devised.

Another favorable point of comparison of our own with the English policy
18 the cheapness with which patents are obtained in this country, the cost being
limited to the amount necessary to create a fund for reimbursing the expenses of
the Patent Office, while in Great Britain the cost of obtaining a patent ia X175
—over twenty-two times the cost in this country. From the fund accumulated
by these fees in five years there was deducted for stamp duties the enormous
tax of <£67,0G0. It was in relation to this great grievance that Lord Stanley
said, in a pamphlet published in 1856 : ** One discovery checked, or even
retarded, by exorbitant imposts, may cause a greater diminution of wealth, which
would otherwise accrue to the nation, than can be compensated by tenfold the
gain actually netted by the treasttry." The acknowledged object of subject-
ing patentees to these enbrmous charges is the prevention of the multiplication
of worthless or frivolous patents, and patents for small improvements on valua-
able inventions, or combinations thereon.

The objections to the frivolity and multiplicity of patents are so often though t-
leesly made, even in th!b country, as to be worthy of refutation. Those who
have carefully studied the progress of civilization must have observed that the
uplifting of society has not been effected by paroxysmal convulsions, such as
were supposed by geologists of former times to have upheaved the ancient con-
tinents at a single shock, but by causes which have operated as gradually and
imperceptibly as those which modem science has shown to have actually raised,
within historic periods, vast countries, with the whole burden of their cities and
unconscious people. The progress in mechanical improvements and in science
has been so gradual that it is difficult to trace it except by the great general
results. The fields of invention and practical knowledge have been extended by
accretions as insensible as those which have foi-med the delta of the Mississippi.
Every new fact in science, every new conception of ingenuity, no matter how
trivial, has added something to their area. The noblest inventions which now
astonish the world — the steam-engine, the cotton mill, the railroad — ^have been.
as truly built up block by block, layer by layer, as the pyramids. More than»
eight hundred distinct inventions were required to perfect the cotton-spinner.
To refer to more recent branches of mechanical industry, we find some of the
best harvesting machines protected by no less than twenty patents, each inven-
tion consisting of but a trivial improvement, yet the whole being necessary to

not includiog its periodicals. During the year 1863, 574 yolumes and 114 pamphleta have
been added to the librarj. Of these, 308 were by purchase and 380 bj donation.

Am the bnsiueFS of the office extends and the number of patents is increased, the librarjr
will become a moi^e and more important auxiliiiry. Its use is not confined to the examin-
ing corps, bat is extended, to the inventors of the cx)\mtryaDd to solicitors and attorneys
from the distant cities. To those engaged in the trial of patent cases before the courts it
is invaloable, as it is impossible to find so complete a history of the improvement la liti-
gation as upon its shelves.

A liberal spirit ought always to be exercised In the purchase of books, and every means
taken to render the library complete, that it may at all times show the condition of the
■rti. Unfortunately, during the past three years, owing to the decrease of the receipts, it
bat been necessary to limit the expenditures, but with returning peace large additions ought
to be made and improved accommodations be secured. The example of the Great i^al
l^jtBot Ofl^, which within a few years has accumulated a library of upwaris of 40,000
, may well be followed.

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the perfection of the machine. The art of sewing by machinery, which ori^-
nated no later than 1842, has attained its almost miracnlous development in this

Online LibraryUnited States. Patent OfficeReport of the Commissioner of Patents for the year .. → online text (page 13 of 164)