ANNUAL REPORT OF THE COMMISSIONER OF PATENTS FOR 1852
Letter from the Commissioner of Patents
Transmitting His Annual Report
March 2, 1853 -- Laid upon the table, and ordered to be printed.
March 3, 1853 -- Ordered that 110,000 extra copies of the Agricultural, and 60,000 extra of the Mechanical part be printed; 10,000 of each of which are for the use of the Patent Office.
United States Patent Office
February 28, 1853
Sir: I have the honor of transmitting to you, as required by law, that portion of the Report of this Office, for the year 1852, which relates to Arts and Manufactures. The delay which has occurred in presenting it, and some deficiencies which might otherwise have been supplied, must be attributed to the recent period at which I entered upon the duties of this post, and the very urgent nature of the business which has meanwhile devolved upon me.
I have the honor to be, very respectfully, your obedient servant.
Silas H. Hodges
Hon. Linn Boyd,
Speaker of the House of Representatives
Report of the Commissioner of Patents
United States Patent Office, January, 1853
The financial transactions of the Patent Office during the preceding year will be sufficiently exhibited by the following statements:
1. Statement of the moneys received at the Patent Office during
the year 1852.
Received on applications for patents, reissues,
additional improvements and extensions, and on
caveats, disclaimers and appeals $104,485.00
Received for copies and recording assignments 7,571.34
Total receipts 112,056.34
2. Statement of expenditures and payments from the Patent fund
during the year 1852
For salaries $36,674.23
For compensation of librarian 397.82
For temporary clerks 18,992.93
For books for the library 597.63
For contingent expenses 13,037.98
For agricultural statistics and purchase of seeds 4,831.33
Total expenditures 74,531.92
Refunded on withdrawals $21,159.99
Refunded money paid by mistake 225.00
Total payments 95,916.91
Leaving a balance of receipts over payments of $16,139.43
If this balance is added to the Patent fund on
hand January 1, 1852 24,152.95
The sum, which is 40,292.38
is the amount in the Patent Fund, January 1, 1853.
The payments to the temporary clerks have been unavoidably increased during the year in consequence of the increase of business, rendering the employment of additional force necessary in several departments. According to a practice which has been long sanctioned, this additional force has been compensated under the provision for temporary clerks. The contingent expenses have also been somewhat augmented from the same cause. The only other item which has been enlarged materially is that of salaries, and this is to be accounted for by the addition to the corps of examiners made during the preceding year. The additional examiners began to receive their pay, it is true, during that year, and this item appeared larger, for that reason, in the last Report than ever before; but it was not till the year 1852 that they drew their full annual salaries, and consequently the amount is larger still in the above statement.
It should be observed that, though the expenditures, $95,916.91, are greater than those of the preceding year, which were $86,916.93, the receipts have more than kept pace with them; those of 1851 being only $95,738.61; those of 1852, $112,056.34. The difference in the expenditure of the two years is $8,999.98; of the receipts, $16,317.73. Last year the surplus of expenditures over receipts, which was carried to the credit of the Patent fund, was $8,821.68; this year it is $16,139.43. These statements will, it is believed, evince to the satisfaction of every one that the increase of business fully justifies the increase which has taken place in the expenditures.
A more correct apprehension as the amount of receipts and expenditures for each year may be obtained by deducting the sums refunded on withdrawals, and for moneys paid by mistake. With this correction, they would stand thus:
Receipts in 1851 $81,160.72
Receipts in 1852 $90,671.35
The moneys thus refunded were never really available to the Office; nor is the payment of them any part of its proper expenditures. As the largest portion of the withdrawals, however, is on account of fees paid during former years, the subject is not susceptible of being followed up so as to attain perfect accuracy.
Office labors -- The extent of the business transacted in examining applications, granting patents, and the like, may be gathered, in some measure, from the following:
3. Statement of applications received and under consideration during the year 1852.
Cases on the examiners' desks, January 1, 1852 155
Applications received during the year 2,639
Patents issued during the year 1,020
Applications on hand not acted upon 481
Rejections and suspensions 1,293
Included among these were --
Patents reissued 18
Additional improvements 4
There have also been filed --
The number of patents expired during the year is 525
None have been extended by Congress
These statements fall far short of exhibiting the amount of labor performed in this department. An application is rarely disposed of before it has received at least two thorough examinations. Most of them receive more, not a few as many as six. The 1,020 patents issued, and the rejections and suspensions, stated at 1,293 (both amounting to 2,313,) will probably cost not less than 7,000 examinations. These have not all taken place within the year, it is true; some of them were made previously, some are yet to be made. Against these may be reckoned the numerous examinations of cases entered during previous years, and not yet disposed of. The task is rendered more onerous in consequence of the investigations being extended over such a length of time; the cases of an early date being no longer familiar to the mind, but requiring something of the care and labor of so many new ones. Many of them are in fact new to the examiners, from the frequent changes which have lately occurred in their corps.
Deducting the number of cases on hand at the beginning of the year (155) from those on hand at its close, (481,) the Office will be seen to have fallen in arrear to the number of 326. this does not equal the increase in the number of applications received during the year (2,639) over those received the year previous, (2,258,) which is 381. The caveats have also risen from 760 to 996. They do not, it is true, require to be investigated like an application. But no patent is ever issued until the caveats are thoroughly searched, lest it should conflict with some of them. Any marked addition to their numbers involves, therefore, an addition to the labors of the examiner.
That which has mainly contributed to augment the number of cases on hand, is the resignation of three of the examiners within the year. One of them has become incapable, through sickness, of discharging the duties of his post for several weeks before he relinquished it, and several more elapsed before his place was supplied. Applications were multiplied at his desk during this period, so as to enhance the labors of his successor beyond what would have been otherwise required to dispose of the same amount of business. More than half of the accumulation of the year has taken place at this desk, in spite of the strenuous efforts of its present occupant.
In connection with this subject it is proper to remark that, immediately after the close of the year, the oldest remaining examiner sent in his resignation. It cannot be necessary to demonstrate the high value to be attached to experience in this service, or the disastrous consequence of these frequent changes. It seems plain that stronger inducements must be held out to these officers to retain their posts; and the facility with which they abandon them, after having become conversant with their duties, gives force to the inquiry whether these situations should not be rendered more desirable and more permanent. The liability to removal is one great inducement to engage in other pursuits. It is known to have been the chief cause of several resignations, and has probably had more or less effect in producing others. The most eminent skill and science are demanded for these positions, and can in no way be so readily secured as by relieving their occupants from the apprehension of being dismissed to find employment anew.
The next table is the same that was published in the last Report, adding the transactions of another year. It will serve, in some degree, to show with what a steady progress the business of the Office has advanced for the period embraced, and how strong is the presumption that it will be constantly enlarged hereafter.
It must not be inferred, from the comparatively brief space occupied by these statements and tables, that the information conveyed is less than usual. All the statistics of any consequence, which it is customary to furnish in this form, will be found in them. Some tables showing the transactions of the Office for each month, and one exhibiting the number of patents issued to the citizens of each State, are all that are omitted. The latter can be readily supplied from the Classified List of Patents issued.
Table exhibiting the business of the Office for twelve years,
ending December 31, 1852.
Years Applications Caveats Patents Cash Cash
Filed Filed Issued Received Expended
1841 847 312 495 40,413.01 23,065.87
1842 761 391 517 36,505.68 31,241.48
1843 819 315 531 35,315.81 30,766.96
1844 1,045 380 502 42,509.26 36,244.73
1845 1,246 452 502 51,076.14 39,395.65
1846 1,272 448 619 50,264.16 46,158.71
1847 1,531 553 572 63,111.19 41,878.35
1848 1,628 607 660 67,576.69 58,905.84
1849 1,955 595 1,070 80,752.78 77,716.44
1850 2,193 602 995 86,927.05 80,100.95
1851 2,258 760 869 95,738.61 86,916.93
1852 2,639 996 1,020 112,656.34 95,916.91
It is gratifying to perceive from this table that there is no faltering among us in the march of improvement. Looking at what has already been accomplished, some find it difficult to conceive that this flood of discoveries and improvements is still to maintain its progress, and even exhibit a swelling tide. As each annual Report appears, they look for a falling off in the list of applications and patents, and doubt whether there is room for the continued exercise of inventive genius. These apprehensions, it is plain, are not to be fulfilled in our day. At no time have there been more decisive indications that every step that is taken in this field, instead of bringing us nearer to the close of our career, does but open new scenes to explore, and prepares the way for new triumphs. The number of patents issued during the past year has been exceeded only in 1849; while the applications exhibit a marked advance in numbers over those of any former period. From the reports of the examiners, the public will learn that, in utility and ingenuity, the achievements here recorded rival those that have preceded them. And scarcely had the year been closed, when a new motive force was brought to the test of experiment; and if we might trust to accounts entitled to some confidence, it bids fair, from its superior economy, safety, and usefulness, to banish the power that has hitherto been our boast and wonder, and has exercised our skill and ingenuity to improve.
The language in which the Secretary of the Interior speaks of this office in his late annual report is so just, and the measures repeatedly urged by the late Commissioner, which are advocated by him, are so essential to the efficiency of its operations, that it cannot be deemed amiss to record the entire passage in these pages.
Extract from the Report of the Secretary of the Interior
"The eastern wing of the noble structure, erected and ultimately to be used for purposes connected with the industrial pursuits of our country, will soon be completed and ready for occupation. Some progress has also been made upon the basement of the western wing, and a large quantity of material has been collected with a view to the vigorous prosecution of the work next spring. The basement of the principal building has been greatly improved by dressing the rough stone of which it was built, so as to make it conform, in its general appearance, to similar portions of the newly erected building.
"There is probably no bureau connected with the government in whose operations the public at large feel a deeper interest than those of the Patent Office. It is inseparably associated with every interest of our country. The mechanic, the merchant, the manufacturer, and the farmer, are all concerned in everything which diminishes the labor of production in any of the departments of industry. Our people are eminently practical and ingenious. They are constantly employed in the discovery of new means of accomplishing important results at a diminished cost of time, labor, and money. The steam-engine, the cotton-gin, and the magnetic telegraph, are striking and imperishable memorials of the success which has attended their efforts. In the early period of our history, when population was sparse, and the prices of agricultural productions high, the labor of the country was directed mainly to the cultivation of the soil. But, as population progressively increases, more attention is devoted to mechanical pursuits and the invention of machinery by which the work of many may be accomplished by a few. Not a day passes without furnishing some evidence of this fact, in the form of applications for patents for important inventions and discoveries. The mechanical interest has therefore become one of great magnitude, and it is justly entitled to all the protection and assistance which can be bestowed by Congress consistently with he provisions of the Constitution.
"The general principles of our patent system seem to have meet with universal approbation, and to have been attended with beneficent results in practice. Since the organization of the Office in 1836, it has advanced with rapid strides. At that date, one 'examining clerk' was enabled to make all the preliminary investigations which were required to ascertain whether the applicant was entitled to a patent; but such has been the increase of the business, that six principal examiners and as many assistants are not now able to keep pace with it. The number of models in the Office on the 1st day of January, 1836, was 1,069; in the beginning of the year 1851 they had increased to 17,257; and at the close of the present year they will fall but little short of 23,000. If they should continue to increase in this proportion, making no allowance for the augmentation consequent on the increase of population, by the close of the present century they will amount to 150,000, and the whole of the present Patent Office edifice will not be sufficient for their convenient display. To provide against this contingency, as well as to accomplish other important results, I respectfully propose that the Commissioner of Patents be required to have prepared for publication a careful analytical and descriptive Index of all discoveries and inventions which have been patented, accompanied by accurate descriptions and drawings which will fully explain the principles and practical operation of the subject of the patent. The advantage of such a publication would be almost incalculable. It would not only perpetuate the invention or discovery by avoiding the casualties by fire and other causes, but it would multiply and diffuse among the people at large the specifications and descriptions, and substantially bring home to every neighborhood to which a copy of the work might be sent the benefits of the Patent Office. In much the larger number of cases the necessity for preserving and displaying the models would be obviated.
"The pages of the published Report would be a safer and more convenient depository for them than the cabinets of the Patent Office, and they would be accessible to everybody. Inventors in remote parts of the country would be placed on an equal footing with those residing near the seat of government. When their thoughts were turned to a particular class of machinery, instead of being compelled to make a journey to Washington to see what had already been done in that department of the arts, they could at once turn to the analytical index, and ascertain what progress had been made by others.
"Under the present system it not unfrequently happens that ingenious persons, having conceived what they believe to be a new idea, which, when carried into practice, will be of great value, employ much of their time, labor, and money in perfecting their invention, and when it is finished they come to Washington filled with the hope of those rewards which crown the labors of the successful inventor. Their application for a patent is presented and submitted to an experienced and skillful examiner, who promptly refers the anxious applicant to a drawing or a model, which shows him that his ideas have been anticipated by another, and reduced to practice many years before. None but those who have taken pains to inquire into the subject can form an adequate idea of the amount of time, money, and labor which is uselessly expended under circumstances like these, to say nothing of the anxiety of mind and heart-sickening disappointment, all of which might be saved if such a descriptive index as I propose were readily accessible to the public. The publication of it would also tend to stimulate the inventive genius of the country, and lead not only to the development of new agents and processes, but to valuable improvements upon those which have already been brought into practical operation. It is hardly necessary to add that such a work would be of great value in the investigation by courts of justice of legal controversies involving the rights of patentees.
"When the index is completed up to the close of the present year, it will be easy, by an annual publication of an appendix to the ordinary Report from the Patent Office, to furnish a complete record of the inventions and discoveries of each successive year.
"To be of value, such an index should be prepared by a person fully competent to the task, and illustrated and printed, and bound in a style worthy of the subject and the nation. It would doubtless be attended with a large expense, but it could readily be paid out of the Patent fund, without encroaching on the national treasury, and I can conceive of no purpose to which that fund could be applied which would be more acceptable to inventors, and in all respects so appropriate, as in perpetuating and diffusing the knowledge of their labors, and presenting to the public a full description of the existing condition of the mechanic arts, and the kindred branches of science in our country."
Occupation of the east wing -- The information concerning the extension of the Patent Office building contained in the above extract, will be welcome to all who take an interest in the progress and encouragement of inventive skill. If the east wing, of which the Secretary of the Interior speaks, could be at once placed at the service of this Office, there would be no occasion, it is hoped, for many years to reiterate the complaint of want of space that it has so often and so justly made. Before that structure, and the one now occupied, can become insufficient, the other portions of the edifice will no doubt be ready for use. Unfortunately, it has been deemed necessary to reserve for the Department of the Interior the principal floor of the wing in question, containing apartments of which the Office stands in pressing need for the transaction of its current business, those now occupied for that purpose being wholly inadequate. Those who are conversant with the crowded state of the one in which the disbursing and the assignment clerks, with their assistant, are located, will not soon forget the perplexity and delay which arise from their being restricted to such narrow limits, and the confusion from which it is consequently impossible to entirely preserve the documents in their custody. The cases in the draughtsman's room are incapable of holding the portfolios of drawings continually resorted to for inspection, which are therefore piled upon them, and no little embarrassment in consulting them is thus created. Nor is it easy to maintain a proper secrecy respecting the caveat files which are in his care. The library will not contain over two-thirds of the books now belonging to it, to say nothing of the additions it requires and is constantly receiving. The remainder are kept in the common hall, or scattered through the various offices. It has, besides, been found necessary to station in this apartment a desk for the clerk for recording letters, and another for a copying clerk, to the exclusion of tables and other furniture, such as are deemed indispensable in other libraries for the convenient use of the books. The messenger has no place for performing his duties but in the same open hall to which every stranger has unrestrained access. Even the letters, many of them containing money, are there enclosed, and the mail made up with a degree of exposure not to be tolerated. Matters which should have been kept strictly private, have, in fact, gained publicity through the want of suitable accommodations for this official, causing inconvenience and annoyance both to the Office and to the parties concerned. In the several examiners' rooms it has become impracticable to screen entirely from the visitor's gaze the models in pending applications. The secrets which inventors have guarded with jealous care, and have confided to our trust, are often exposed, in spite of every precaution that can now be taken, to agents, to rivals, or the more dangerous scrutiny of competitors. Complaint has been made, and it was feared on good grounds, that applications which were under examination had been discovered by strangers, who had taken advantage of it. Keenly as this must be felt, there is no help for it in the present situation of affairs. The Office has not been wanting in representing the evil to those who had it in their power to repair it and "did it not." So long as the public have a right to the necessary facilities for transacting business in this building, it is impossible to secure proper seclusion under such disadvantages. Should the design of excluding the Office from the apartments in question be persisted in, the evil must become more aggravated every day. A new examiner is urgently needed, and there is a fair prospect that Congress will grant one at its present session, as well as other important functionaries. There is not, however, a place at all suitable for them at our disposal.
In addition to what has been said above, and in former reports, on this subject, there is a grave objection to the plan of allowing any other department to occupy any portion of the Patent Office building. It is a matter of no small difficulty and nicety to give the public suitable facilities for transacting business, and for examining the buildings and the collections in it, on the one hand; and, on the other, to secure the privacy which applicants demand for their discoveries. It can only be effected while the Office has entire command of the building, and can exercise perfect control over its inmates. Admit within it a body of men, over whom the Office has no power, who may come and go as they please without being amenable to it, and the task will become impracticable.
With the utmost respect for those who advocate the project in question, the legality of it must also be denied. If we look only to the several statutes under which these buildings have been erected, there is no room for doubting that they were erected for the sole use of the Patent Office, and are dedicated to its service. The only provision which can be supposed to countenance a different view is the fifth section of the act approved August 31, 1852, making appropriations for the expenses of the government. By this section certain former appropriations for "compensation of the superintendent and four watchmen of the building occupied by the Secretary of the Interior" are "made applicable to the compensation of superintendent and four watchmen for that portion of the Patent Office building which will be occupied by the Secretary of the Interior." This, it is claimed, recognizes and renders legal the contemplated movement. It is true that incidental expressions like the one above have been held to recognize proceedings which have actually taken place -- measures which are in existence. If unlawful, Congress could not with propriety take notice of them, except by way of censure; and in making provision for them, it would acknowledge them as valid. Their nature and extent would be also well defined, and readily sanctioned. These reasons do not exist when a statute takes notice of a mere proposition still under deliberation. Not having been reduced to practice, there is no impropriety in making provision for it, in case it should be otherwise authorized. It would be dangerous, moreover, to legislate as it were haphazard, and give the sanction of a statute to a scheme, the circumstances, and character, and bearings of which were yet uncertain. The section adverted to can only be regarded as a contingent provision for a contemplated measure, to take effect when that measure should be otherwise made lawful; not an authority for it by itself. That is not its import, nor its design; it was framed for no such purpose.
Admitting the construction thus contended for to be well grounded, it would at most only justify the Secretary of the Interior in occupying such rooms as he actually selects for his own use. The remainder of the building must remain at the control of the Patent Office; so, also, must the whole structure, in virtue of the several acts for its erection, until the option has been exercised and the rooms designated for the other department. There is no warrant for the attempt to sequester an entire floor for an indefinite period, until it becomes convenient to make the choice. The terms of the act would equally sustain the exclusion of this Office from every part of the Patent buildings. The attempt is especially to be deprecated in view of the embarrassment it occasions.
The work has been commenced of removing the models belonging to rejected applications, usually termed "rejected models," to the rooms in the basement of the new wing. Those rooms will be required, if the business continues to increase at its present rate, for such clerks and other attendants as the public have no occasion to consult, and who can be located without inconvenience at a distance from that part where intercourse with strangers is conducted. For the present, they might be accommodated on the principal floor. It has become necessary, meanwhile, that the rejected models should be removed from the place where they have been kept, for the purpose of making repairs upon it. The plight to which they have been reduced for want of space is such as to elicit loud complaints from those who deposited them and feel an interest in their being preserved and suitably exhibited, as well as from others. They have been heaped upon one another, and upon the floor, lost from search, and exposed to injury. Many of them have been broken, their component parts scattered, and not a few entirely destroyed. It has been necessary that they should be thoroughly examined, and, as far as practicable, restored to their proper condition, and put in order. As soon, therefore, as the Office was notified that the new basement was about to be placed at its disposal, it was decided to remove to it the models in question until the apartments which are to be appropriated to them in the portions of the building yet to be erected shall be ready. Temporary cases were therefore ordered, and, as was remarked, the removal of the models has been commenced. As far as practicable, they are at the same time restored to order, and are labelled and arranged anew. An index is also prepared, showing the place where every one is to be found, and enabling the Office hereafter to ascertain satisfactorily whether any of them are missing. This work will be vigorously prosecuted until it is complete, unless an alteration in our plan becomes necessary in consequence of being excluded from some portion of the wing.
Steps have also been taken to provide cases of a more permanent construction and suitable character to be placed in the hall of the new wing, for the reception of the patented models. These cases cannot, however, be prepared at once; indeed, several months must elapse before they will be ready for use. A similar course will be pursued in removing and arranging the patented models in them, as in case of the rejected models, only the work will be more thoroughly done, as it is supposed they will not have to be displaced.
The attention of Congress has been added in former reports to several measures of legislation for the relief and convenience of this Office, and the benefit of inventors. It is proposed not so much to reiterate the observations already published as to suggest considerations respecting some of these measures, and to mention others that have not yet received their due share of notice.
Relation of the Patent Office to the Department of the Interior -- The attitude of entire dependence upon the Department of the Interior to which this Office has been reduced is followed by the serious evils, and constitutes a prominent topic for consideration. The most important correspondence in which the Patent Office is engaged arises out of the investigation of inventions and discoveries presented for patents, and is employed in communicating the views entertained respecting them. These are the result of scientific and laborious investigation in each case, prosecuted by a corps of twelve able examiners and assistants. It is beyond the power of any one man, much less the Commissioner, with his numerous other responsibilities, to become conversant with them, so as to satisfy himself of their correctness. He must necessarily adopt the conclusions formed by the examiners in the great majority of the cases, and act in reliance on their fidelity and judgment. He cannot feel safe unless he can repose implicit confidence in them, and he clearly ought to have the exclusive privilege of selecting them. These remarks will apply also to other officials. Yet the approval now required from the Secretary of the Interior may be so exercised as to deprive him of an independent choice in this matter.
Another result of the intimate relation into which the two offices are brought, is to subject them to the same political fluctuations. Few will deny this to be contrary to sound policy. Many considerations require that the post of Commissioner of Patents should be a permanent one. It seems plain that the mischief resulting from the present position of the Office which have been brought to notice above, and on former occasions, demand a change, and the elevation of this into an independent bureau.
Reorganization of the Patent Office -- The necessity of thoroughly reorganizing the office seems to have been hitherto overlooked. Its present arrangement is to a great extent the mere result of expedients, resorted to, from time to time, as the pressure of business required. No well-digested system can reasonably be looked for under such circumstances. Several of the officials, to whom are confided important trusts -- pecuniary, as well as others -- are recognized only through an incidental mention of them in some statute; their duties are nowhere defined. There are a number, besides, who are charged with responsible services, and are designated by courtesy accordingly, but who are known in law only as temporary clerks, and whose compensation depends upon a discretion, which may become caprice. There is not even any written code in the Office regulating the employments of these gentlemen; and the mode in which they are parcelled out betrays want of method. As it is a subject more properly within the province of Congress to correct, it is hoped that it will meet with early and effectual attention from that body. The department of the machinist especially requires remodeling and enlargement. Besides the rapid increase of the models, the removal which has been commenced of the entire number, their rearrangement and repairs, the disposition of new ones, the exhibition of them to visitors and inquirers, and the care of the whole, will require an addition to the force under his charge, which should be duly organized by law.
Need of a registry law -- It is not easy to perceive why two classes so analogous to each other as those protected under the law of copyright and those which are patented as designs, should not be embraced under one statute. An engraving upon paper, or in any publication, needs only to be registered with the clerk of a district court, at a fee of fifty cents, and, upon depositing a copy with the Secretary of State, it is secured against infringement for twenty-five years. If the same design is printed on silk and sold as a handkerchief, or upon paper-hangings or a fire-screen, a formal application must be made to this Office, a patent prayed out, costing $15, besides the expenses attendant on procuring papers, drawings and model; and, after all, an exclusive privilege in them inures but seven years. These incongruities indicate such a want of systematic legislation as to warrant the hope that they may be wiped from the statute-book by the enactment of a registry law covering all these subjects. The registry should be in the district court as now; to make it in this Office gives it too much the prestige of a patent.
The law now requires that a patent should be extended, if at all, before it expires; and previous to that time whatever controversy arises in such a case must be considered and determined. On the other hand, in order to decide the question, it is necessary to ascertain whether the applicant has not already been remunerated sufficiently for his invention, and for this purpose he is bound to exhibit a sworn statement of his receipts and disbursements on account of it. It is obvious that this statement should be made not long before the patent expires, as it might be materially varied by intervening transactions. Accordingly, applications presented a year before the patent expired have been rejected for that reason, and they are usually presented not more than three or four months previous. The opportunity for considering and determining the question is thus restricted to very narrow limits. In one late instance, the Commissioner had but twenty-four days, in a hurried period, to hear arguments, examine several thousand pages of testimony, and satisfy himself on a number of difficult questions of law, before making a decision which involved, it was claimed, a million of dollars. The ends of the statute will be attained by requiring the proceedings to be closed before the Commissioner by the day now fixed for the decision, and allowing him such further time as he needs for forming his opinion.
Patent law amendments -- Emendations of the law, intended to give better security to inventors in the enjoyment of their rights, have been brought forward, from various sources, by associations interested in the subject, or individuals. Others have been proposed by this Office; and some have been introduced into the halls of Congress, and have been received with favor. The remedies proposed have not always been in unison with each other, and show the need of caution in adopting them. The attention they have met with justifies the devoting a few pages to them, not for the purpose of fulling discussing them all, but in order to secure consideration to some other suggestions which might otherwise be overlooked.
One of these emendations provides that, when a patent has been denied by the Commissioner, the applicant, if he still insists upon it, may have one upon his own responsibility. Before this becomes a law, it should be radically amended upon two points. It should be enacted that a patent thus issued should not, like those granted from this Office, be entitled to any presumptions in its favor, nor be regarded as prima facie evidence of the patentee's exclusive title. It should also be required that a marked and obvious distinction should be observed between the instruments obtained in these two methods, and they should be so framed as to remove all apprehension of the one being mistaken for the other. The machinery and manufactures protected by such a proceeding should bear a stamp disclosing to every one the true extent of the patentee's rights. Effectual precaution should be taken, in short, against the instrument being made use of as an official recognition of the claim, and against any person being imposed upon by the articles, as though they were protected from infringement under the existing law. The best mode of effecting this would be to give the applicant a mere right to register his invention in some distinct office, or with copyrights.
It is by no means certain that, with these precautions, such an addition to the present system might not be found advantageous. To carry out the principle, the right of appealing from the decision of the Office should be taken away. The party aggrieved might have his remedy by taking out a patent or registering his invention as thus provided, upon his own responsibility, and look to the courts for sustaining it. Other regulations might appear desirable on discussion, for which this is no place. This arrangement would obviate the difficulty now so commonly felt in finding a suitable tribunal for revising the action of this Office. It would also help to silence the complaints made against the system now in force, and give those who desire it all the benefits of the one formerly in vogue.
To secure the aid of experts upon the trial of patent causes is also a favorite project. That some measure is desirable is admitted on all hands, but it should not stop short, if undertaken, of a permanent appointment of a suitable board, instead of relying upon an occasional resort to the class. The man who is called to serve upon a single cause will find it more difficult to preserve strict impartiality between the parties, and to maintain the appearance of it, than one to whom the duty has become familiar. The judge, too, finds the resentment he awakens on one occasion counteracted by the better impressions he makes upon another, and those who have both won and lost in repeated instances, lose the prejudice they would have entertained had they appeared but once before him and met defeat. An arbitrator, forced upon a party for a single occasion, can never give satisfaction to the loser. After a few repetitions of the clamor that would be raised on every trial, the community will, it is apprehended, cease to endure such a substitute for their favorite trial by jury.
There seems little ground for another innovation that has been proposed, that of restricting the right of defense in a suit for infringing a patent, on the ground that it was not novel, to those who knew before the patent was granted of the invention having been in use; while those who acquire the knowledge afterwards are required to institute distinct proceedings to vacate the patent. When any one has satisfied himself that a patent is void, why should he be held to respect it, or engage in expensive litigation to avoid it, while his neighbor may infringe it with impunity, because he gained the knowledge a little earlier? If any distinction is to be made like this, it should be between him who knew the patent was void before he committed the supposed infringements, and who must be supposed to have acted in view of his rights, and him who had no such knowledge, and trespassed with no such excuse. Even he is presumed to know the existence of the patent; and why should he not be presumed to know its invalidity, and permitted to show it in his defense?
The expedient of declaring forfeit the machinery employed and the articles manufactured in violation of a patent, should be carefully framed, so as to give the owner notice of the claim and enable him to meet it. The device does not, moreover, seem well calculated to punish the wary and designing speculator, who will be on his guard and leave nothing worth taking exposed. It will fall with severity upon those who are comparatively thoughtless and innocent, and who have never taken any precautions. A jury is liable to mistakes, and might find even such a man guilty of willful wrongdoing.
In connection with the last, it has been proposed to require of the defendant securities for the payment, in all cases where extra damages and costs might be recovered before he is permitted to make a defense. It may be true that irresponsible persons have been put forward to do the ostensible work of infringing, and that for them a judgment has no terrors. On the other hand, it is equally possible that innocent persons may be sued, and suffer by the obnoxious provision. Justice does not, however, permit any one, before he is found guilty, to be treated as such. His property may , in some States, be sequestered; or he may be held to bail; and this may embarrass him, but does not shut his mouth. Under the proposed plan the plaintiff might entirely debar him from showing his innocence, and even demanding the proof of his guilt.
Another measure was brought forward from the same quarter, by which it was provided that, after one trial establishing the validity of a patent, the patentee may recover treble damages and treble costs if it is ever contested again; quadruple on a third trial; quintuple on every subsequent trial, with "liberal counsel fees" in every instance. It is not necessary that the defendant should have been a party to the previous suits in order to make him liable to the severe operation of this statute. He may have lived at the other end of the Union, and have never heard of them; he may have supposed himself to have a bona fide defense, founded upon his having anticipated the plaintiff in his discovery. It will avail him nothing. In addition to this, it is well known that the speculators in patents have obtained judgments upon them by collusion for the sake of effect. How easy to use them to enhance the costs under this proceeding. The statute as proposed, it is true, provides that the previous judgments must be in good faith. But how is their character to be shown? To impeach a fraudulent judgment is, at all times, a costly and hazardous undertaking. And when it is attempted at the risk of such aggravated recoveries, the odds are too great to be risked by any man of prudence, who can avoid it. It is true, also, that the plaintiff is liable to treble costs upon a third verdict against his patent; quadruple upon a fourth; and quintuple on all subsequent ones; not treble upon a second trial, and so on as when he succeeds. But it is also provided that, where judgments have been recovered both ways, they shall be adjusted and balanced against each other. Not to ask who shall keep the account for the defendants and make the necessary proof, it is obvious that the facility with which the plaintiff can obtain amicable verdicts, and the difficulty of exposing them, makes this precaution useless. It has been the subject of loud complaints throughout the country that patentees and their agents have gone about levying contributions upon those who used their supposed inventions, and have met with great facilities from the dread commonly entertained of engaging in litigation with them. If these complaints have any foundation, what might not be expected from one who wielded such a formidable weapon as this provision places in his grasp? Very few men could be found who would not make large sacrifices rather than expose themselves to a judgment for five-fold damages and five-fold costs, with liberal counsel fees, besides being compelled to find security to the amount, before being allowed to so much as contest their guilt.
Severe and aggravated as are the wrongs and depredations endured by inventors, they do not warrant measures for protection so liable to be abused, and made to operate with indiscriminate hardship upon the innocent as well as the guilty. They savor of what Bacon has called the last infirmity of a good man -- indiscreet indignation against vice. The remedy for the evils complained of is not to be found by listening to the dictates of resentment, however just. There are serious difficulties in the way of devising an effectual one -- so serious as to render it less surprising that measures such as have been discussed should have met with favor. It is respectfully suggested, however, that, if those who infringe upon these rights with so much recklessness and impunity are ever to be checked, it is by a careful inquiry into the circumstances to which they owe their success. Two things contribute to it. One is that every valuable invention becomes an object of importance to a large circle, sometimes embracing the entire community, who are therefore strongly tempted to resist a patent for it, and are at once tacitly leagued, if not expressly combined, against it. Another is the facility of manufacturing proof of like discoveries previous to that of the inventor, and dating them so far back as to render it difficult, if not impossible, to detect the fraud. Until these are counteracted, there is little to hope from legislation, however stringent. The object may possibly be secured by providing for a final and conclusive determination upon the validity of the patent at a date so early that people would not have generally become aware of its value, or interested in opposing it and concocting schemes against it; and, also, while any alleged previous use may be readily inquired into, and its true claims thoroughly scrutinized. A law may be framed, for instance, under which public notice shall be extensively given of the nature and object (so far as necessary) of every invention upon which a patent shall be granted, and all competitors shall be required to show cause against its validity by a specified day. If any party comes forward within the time and files objections, an investigation shall be made into the claims of the invention, and the adverse parties shall be heard in opposition to it. And when a patent has survived this ordeal, the validity of it shall never afterwards be contested. If such a statute could be drawn up, giving ample notice to all concerned, and otherwise free from objection, it is obvious that it would forestall the combinations and practices which have rendered the value of patents precarious almost in proportion to their usefulness. Whether such an act can be made effectual and practicable, yet do no injustice, is a question that seems worthy of serious consideration. It will be time to discuss its form and mature its provisions when it promises to become the subject of legislative deliberation.
It may not seem consonant with the observations recorded a few pages back to venture an opinion in favor of making the willful infringement of a patent a crime, and punishable as such. The measure is, notwithstanding, free from the objections urged against the stringent projects there commented upon. In criminal prosecutions there is a strong presumption raised in favor of the respondent's innocence, and the danger is slight of his being convicted unless he is truly guilty. He is secure where the defendant in one of those suits would be exposed to serious peril. Neither would it be safe to use a threat of such proceedings as a weapon of extortion. On the other hand, it would deter many a man from the offense. Hundreds who have made up their minds to risk pecuniary loss, would hesitate to subject themselves to the imputation of crime. It would serve, also, to correct the public sentiment, which is far from being just on this subject. Who shrinks from the temptation to infringe a patent as he does from the thought of breaking the law? It is from a defect of this kind that tribunals of justice, and especially juries, are found reluctant to give due protection to the rights in question. Correct this state of feeling, attach to the secret trespasser upon his neighbor's patent the stigma of transgressing the laws, and the offense might possibly become as rare as others which are committed not from want, but from the mere love of money.
Importance of the Arts -- It may be thought that these subjects have been urged upon the attention of Congress beyond what their merits warrant; that they have no title to the amount of consideration which would be necessary to secure a judicious, thorough, and advantageous action upon them. It is respectfully submitted, however, that they justly challenge comparison, in point of intrinsic importance and of their bearing upon the prosperity of our country, with any upon which the national legislature have been usually employed. Not that ingenious discoveries and improvements in the arts are before all other sources of benefits to our fellow-citizens. I cannot concur in the terms of disparagement which the enthusiastic admirers of inventive genius have sometimes used towards the great masters of belles-lettres and the fine arts. He who said, "Let me furnish a nation its ballads, and I care not who makes its laws," had a far more just and comprehensive view of the influences that mould the structure of society, give a people their character, and secure their true advancement.
The progress of invention has not been without its influence, meanwhile, upon the destiny of man. In the great work of elevating the masses, of giving the entire body of mankind something like an equal opportunity in the race for happiness, and even power, it has co-operated with mighty effect. It has so reduced the cost of the comforts of life, and of the means of knowledge, as to bring them within the reach of every one. An immense amount of work, which could be performed by the hand alone a few years since, is now accomplished by machinery. Intelligent labor has come into demand, and receives an increased emolument; so that men can at once earn more than formerly, and their wages command subsistence, luxuries, and the means of cultivation to an extent that previously had never been realized. Where these advantages are shared, experience tells us the entire mass of society is elevated in the tone of its morality, as well as the character of its enjoyments. It is true, as it never was before, that men are the architects of their own fortunes; that it depends upon themselves what they shall be. To render this complete, demand other aids, it is true. Religion and education must co-operate. Political institutions of the right stamp are also needed, as England may well teach us by the multitudes she possesses destitute of the thousand comforts produced in their midst, at the lowest cost, by her wonder-working machinery. But inventive skill must bear a part, and contribute to the final result. To the people as individuals, and to our State governments, it belongs to sustain the institutions of religion and education, and to provide salutary municipal regulations. It is the province of Congress, meanwhile, to foster the genius of discovery, and, by its wise legislation in this behalf, lend its aid to advance the interests of humanity.
It was in another view, however, that a comparison in point of importance was challenged between the inventive interests of the country and those which usually engross attention in the halls of the Capitol. Our manufactures, to protect which has been the object of so much debate, owe their very existence to them. Without them our foreign commerce, another favorite, would lose freight as well as power. Where, for instance, would be her exports were it not for the cotton-gin? and where her speed and regularity were it not for the steam-engine? Even agriculture feels the influence, and under the touch of the genius of invention promises to fulfill the much-sought desideratum, and make two blades of grass grow where one grew before. The great element of expense in the production of her fruits -- manual labor -- will be so supplanted by machinery as practically to effect the same purpose of cheapening them. Compare our means of inland intercourse with what they were a few years since, and another indication is afforded of the consideration due to inventors. The difference in our domestic traffic, as it was and as it is, we owe, in a great measure, to their ingenuity. They have done an immense work in building up the wealth of the country; they have given the nation standing and weight in the eyes of foreign States; they have entered into competition with their artisans in their appropriate fields, and have borne away a palm that reflects honor upon our land. At the great Exhibition it was freely admitted, by such as were never accused of partiality towards us, that Great Britain had gained more useful ideas from the United States than from all other sources. Those who have achieved so much for the nation are not to be deemed importunate, therefore, when they request such legislation at the hands of Congress as shall afford them effectual protection in their acknowledged rights, and shall enable them to prosecute their meritorious labors in peace.
List of Patents and Examiners' Reports -- Upon the succeeding pages will be found the usual lists of patents expired and patents issued, with the inventions and claims.
These will be followed by reports from the several examiners, describing some of the most important of the inventions which have been passed at their respective desks. This information has always been looked for with great interest, and conveys to the mass of readers a better conception of what is transpiring in the fields of discovery than they obtain from any other source. Should the bill be passed which is now before the Senate, authorizing the insertion of an intelligible account of the inventions patented, in lieu of the incomprehensible list of "Inventions and Claims" now published, these reports will become unnecessary. Meanwhile, they cannot well be dispensed with. Allowing their full force to the objections urged against them last year, they are not felt to be so serious as to require the omission of what constitutes so essential a part of "the information of the state and condition of the Patent Office" contemplated by the statute.
Guide to the practice of the Patent Office -- Upon reprinting the pamphlet issued from time to time by the Office, giving information to those having business to transact with it, so many errors were found to have crept into the work, in the course of repeated editions, that it was concluded to rewrite it. The new work will be found on the subsequent pages. The forms were collected in an appendix; but, as they have not been materially changed from those which appeared in the last Report, they are here omitted, with the exception of one or two new ones.
At the close will be found an opinion prepared by the Commissioner upon deciding the application for the extension of a patent before alluded to. [This decision was In the matter of the application of Charles Goodyear and Nathaniel Hayward for the extension to the said Goodyear, for the benefit of said Hayward, of a patent granted February 24, 1839 to said Goodyear for an improvement in the manufacture of India Rubber] It was not heard until the year we are contemplating had expired; yet having been determined before this Report could be rendered, it was deemed advisable that it should be inserted. The decisions of this Office constitute precedents, and have an essential bearing upon questions that are becoming every day more frequent and of greater consequence. It is highly proper that the more important of them should be published in the annual reports, which form a legitimate channel for communicating them. As the decision spoken of involved several novel and grave questions of law, and the case was argued at great length and with more than ordinary ability, it will be often referred to hereafter, and constitutes, therefore, a suitable precedent for the practice. For the same reason such decisions of the judge of the circuit court of the District of Columbia, upon appeals from this Office, as involve questions of law or practice, should find a place in the annual reports.
The only communication received during the year respecting early American inventions will be found on the pages following the Examiners' Reports.
Early American Inventions
The following communication is the only one which has been received during the year, on the subject of early American inventions:
Pawtucket, July 19, 1827
Sir: I herewith present to the Society the shears with which the first cold or cut nail was formed in this country, and probably the first ever cut in the world. They were obtained from Mr. Jeremiah Wilkinson, of Cumberland, whom I visited a few months since, in company with Mr. David Wilkinson, for the purpose of obtaining some information relative to the commencement of the cold or cut nail business in the country. Mr. Wilkinson is eighty-six years of age the present month, and is a very intelligent old gentleman. He informed me that he followed the business of making hand cards in the year 1776, at which time he experienced great difficulty in obtaining tacks for the purpose of nailing on his cards, owing to the hostilities between this country and Great Britain, the consequent high price of English tacks, and the tediousness of the process in making them in this country in the old mode by hammering. These considerations suggested to Mr. Wilkinson the idea of making them cold; and, for the purpose of trying the experiment, he, with these shears, cut from the plate of an old chest lock a number of tacks, which he headed in a smith's vice. Succeeding in this experiment, he, from that time, made all the tacks he required in his business in the same way from sheets of iron. Subsequently he made larger nails -- such as shingle and lath nails -- from old Spanish hoops, which were headed in a clamp, or tool, confined between the jaws of his vice. I obtained on of the heading tools, which I also present with the shears. The first improvements in the method of cutting and heading the nails were made by one Eleazer Smith, from whom I expect soon some further account of the business, when I will lay it before the Society. Mr. Wilkinson also made, during the revolutionary war, pins and darning needles from wire drawn by himself, samples of which I also present; and, although the gentleman's peaceful principles would not permit him to take up arms in the revolutionary struggles of his country, he certainly, by his ingenuity and industry, contributed largely towards its independence.
Wm. R. Staples, Esq.
Secretary of the R.I.H. Society
Providence, November 5, 1852
I hereby certify that the above is a true copy of the original letter in the possession of the Rhode Island Historical Society, and is the only one which they received upon the subject.
Secretary R.I. Historical Society
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