History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 5 -- The First U.S. Patent Statute
THE FIRST U.S. PATENT STATUTE
John Fitch was not alone in petitioning Congress for a patent. The Constitution said that Congress had the power to grant patents and copyrights, and there were inventors and authors out there ready to ask. Numerous petitions were filed with the first session of the First Congress in 1789, requesting patents and copyrights. Apparently, none was granted. In the first session, a patent bill of some type was proposed in the House, but it was not passed, and almost all record of it was lost when the British burned some of the Congressional records in 1814.
On January 8, 1790, [footnote 1] President Washington, in his State of the Union message to the second session of the First Congress, meeting in New York City, recommended giving encouragement to the introduction of new and useful inventions from abroad, as well as to the exertion of skill and genius in producing them at home. Three days later, the Senate replied that the introduction of inventions from abroad and the exertions of skill and genius in producing them at home would receive early attention. The next day, the House replied that the promotion of science and literature would contribute to the security of a free government, and that it would not lose sight of such worthy objects.
[Page 21 illustration: Portrait of Aedanus Burke]
On January 25, 1790, the House appointed a committee to draft a patent statute. The committee consisted of Aedanus Burke of South Carolina, Benjamin Huntington of Connecticut, and Lambert Cadwalader of New Jersey. On February 17, Mr. Burke reported a bill to promote the progress of the useful arts, and it was given its first reading.
Meanwhile, Francis Bailey petitioned Congress for a patent for certain punches which were to prevent counterfeiting, and his petition was supported by Alexander Hamilton, Secretary of the Treasury. The House decided to delay consideration of Mr. Bailey's request until a general patent statute could be passed.
On March 4, the House appointed a Committee of the Whole House to consider the proposed patent law. The committee decided not to allow appeal to a jury from a decision of appointed referees on interference issues, as had been proposed. The House gave the bill its third reading and [Pg 22] passed it on March 10, and sent it to the Senate the next day. The Senate passed the bill with twelve amendments on March 30, and sent it back to the House on the same day. On April 3, the House agreed to all but one of the twelve amendments and notified the Senate on April 5. On April 5, the Senate agreed with the House version. On April 10, 1790, the first patent statute was signed into law by President Washington.
[Page 22 illustration: Portrait of Benjamin Huntington]
It has always been known by those associated with the Patent Office that it is an old-line agency, with origins dating back to the earliest days of the nation. We have not always realized how true this is. The first patent statute was passed on April 5, 1790, by the Congress of the twelve United States and signed into law on April 10 by the President. Rhode Island ratified the Constitution and joined the Union as the thirteenth state on May 29, 1790, 49 days after the first patent statute was in effect. We had our first patent law before we had our thirteenth state.
The first patent statute did not create a Patent Office. It directed applicants to file a petition for patent with the Secretary of State. Then the Secretary of State, the Secretary of War, and the Attorney General were to determine if they, or any two of them, thought "the invention or discovery sufficiently useful and important" to merit a patent. [footnote 2] The applicant for patent was required to provide a specification containing a written description of the invention, together with drafts (presumably technical drawings) and an exact model of the invention, if the nature of the invention would allow a model. The description and model had to be good enough to enable a skilled workman to make and use the invention, so that the public could have full benefit of the invention after the expiration of the patent.
When the designated committee had decided that a patent was appropriate and they had caused the legal instrument styled letters patent to be made out, the instrument was referred to the Attorney General for his review as to legal sufficiency. After his approval, the patent was sent to the President of the United States for his personal signature, and then back to the Secretary of State for his personal signature attesting that he had caused the Great Seal of the United States to be affixed. The patent was then delivered to the patentee, and it ran for 14 years. Early patents are much desired by latter-day autograph hunters for their collections of valuable signatures.
[Page 23 illustration: Portrait of Lambert Cadwalader]
The cost for all of this was surprisingly low. There was a charge of 50 cents for receiving and filing the petition, and a charge of 10 cents per 100 words for copying the specification to copy sheets. The cost of making out the patent was two dollars, with an additional cost of one dollar for affixing the Great Seal, and finally 20 cents for intermediate services leading to the endorsement of the patent with the date of delivery to the patentee. All of this money, usually amounting to between four and five dollars, was paid not to the government, but to the government employees who provided the services. In effect, this meant payment to the Chief Clerk of the Department of State.
The officers given the duty of determining if an invention was sufficiently useful and important to merit granting a patent were Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph. They called themselves collectively the "Commissioners for the Promotion of Useful Arts," or the "Board of Arts," although others called them the Patent Commission or Patent Board. [footnote 3]
We do not know how long it took for proper patent applications to be filed with the Patent Board. Many petitions had been filed with Congress, but there were additional requirements, such as models, and possibly a more complete description of the invention, beyond those of a mere petition to Congress. The first United States patent was issued on July 31, 1790, but it may not have been based on the first application which was filed. As will be noted many times between here and the chapter which covers it, the records in the Patent Office were completely destroyed in a fire on December 15, 1836. All that we know about this period comes from scattered records preserved in other locations.
Only three patents were granted in 1790. The slow beginning may have had more than one cause. Certainly, the Patent Board was severe in the application of the law to applications. Thomas Jefferson observed, [footnote 4] a few months after the 1790 law came into effect, that the law had given a spring to invention beyond his conception. Many of these inventions he found trifling, but some he found of great consequence. There could also be other reasons. The members of the Patent Board were busy men, with many other obligations. And there were no American rules as to what should be patentable and what should not. The Patent Board had to invent a patent system and a set of rules [Pg 24] of patent practice before they could truly begin investigating patent applications. The patent system they invented at the outset was not perfect, but it may have been the best ever seen at that time.
[Page 24 illustration: Commissioners for the Promotion of the Useful Arts; Edmund Randolph Henry Knox Thomas Jefferson]
In July 1790, the Patent Board approved a patent for Samuel Hopkins (1765-1840) of Pittsford, Vermont. On July 31, 1790, at the first national capital in New York City, the papers were signed by all the necessary parties and issued as a patent for a method of making potash and pearl ash by burning wood ashes a second time before dissolving them to extract potash. [footnote 5] Because the invention was in chemistry, probably no model was furnished. With no model required, it would have been possible to file the Hopkins application more quickly than was possible with applications for mechanical inventions.
Only a week later, on August 6, 1790, also in New York City, a second patent was issued, to Joseph S. Sampson, for manufacturing candles. Like many patents to be issued over the next two centuries, the first two patents disappeared into oblivion. If anyone other than the inventors operated under either of these patents, that fact is lost in the mists of time. But near the end of the year, from the new national capital in Philadelphia, the third and last patent of the year was issued on December 18, 1790, to Oliver Evans, an inventive genius of the first magnitude. There is more to be said about him in following chapters.
In a letter in later years, [footnote 6] Thomas Jefferson wrote that as a member of the Patent Board for several years, he had observed with what slow progress a system of general rules could be matured. However, the board did manage to establish some rules. One was that any known machine should remain [Pg 25] available for any use that it might be put to. Another was that a mere change of material of construction of a known device should not entitle one to a patent. A third was that a mere change in form of an old device should not entitle one to a patent. It is interesting to note that modern patent practice allows major exceptions to all three rules, too complex to consider here.
[Page 25 illustration: Portrait of Henry Remsen Jr]
Before the Constitution came into effect, John Jay was appointed Secretary of Foreign Affairs by the Congress, and the Under Secretary was Henry Remsen Jr. (1762-1843). [footnote 7] When the State Department was formed under the Constitution, Mr. Remsen soon became its Chief Clerk. Sometime between April 1790, when the first patent statute was passed, and March 1792, when Mr. Remsen left office, he wrote a memorandum on how to conduct patent business. It referred to "patent No. 21" (even though patents were not then officially numbered), and the twenty-first patent was issued in August 1791, making it probable that the memo was written after that date. [footnote 8]
He noted in his memorandum that the Patent Board met on the last Saturday of each month. Sampson Crosby, the State Department messenger, was charged with the duty of notifying each of the members about the meeting the day before. At each meeting, the board read each of the applications received since the last meeting, and then the members could consider them for a month. The board would never decide on an application at the end of that month unless all the necessary specifications, drawings and models had been submitted. No models were to be returned to patentees without orders from the Secretary of State. Instructions were provided for proper forms for specifications, and for the proper labeling of models. The method of making entries of dates of receipt, etc., into the minute book was explained.
It was also noted that the petitions received were to be filed in "the desk upstairs in one of the pigeon holes." Another pigeon hole was to be used for the petitions decided upon, and also the drafts of issued patents until they could be recorded. Some of the specifications were said to be in the desk and others were in the closet. Apparently, this desk was the personal property of Henry Remsen Jr., because it remained in his family and was on loan to the Patent Office for an exhibition in 1936. This may be the origin of the tradition that in the early days of the Patent Office, all of the records of the Patent Office were kept in a few pigeon holes of a desk. [footnote 9] While not [Pg 26] entirely true, it does appear that everything under active consideration would fit into the pigeon holes of Henry Remsen's desk.
[Page 26 illustration: State Department Office, 1791, Market & 7th St., Philadelphia, Headquarters of Patent Board]
In July 1791, Thomas Jefferson wrote to General Henry Knox, [footnote 10] noting that the members of the Patent Board had agreed that the descriptions for patents should be provided to the members separately at their lodgings, to be examined at their leisure. Thus, reviewing patent applications became an after-hours occupation to be carried out at home. On this occasion, Thomas Jefferson sent General Knox some papers which had already been reviewed by both Jefferson and Randolph. He noted that this was the first set of papers sent around in the fashion agreed to in their meeting, so that a detailed letter of explanation was considered appropriate. Afterwards, no such explanation would have to be provided. The criticisms and amendments made by the members of the Patent Board would be consolidated by Mr. Remsen before the next meeting of the board.
Minutes were kept of the meetings of the Patent Board, but these have disappeared, perhaps burned in 1836. The best notion we have of the total business of the board comes from a memorandum dated March 31, 1792, written by Henry Remsen on his last day in office, [footnote 11] in which he gives a detailed account of the business on hand. Although only 47 patents were issued through the end of 1792, at least 114 applications had been filed by the date of the memorandum. This list is incomplete, because it lists only those applications still under consideration, and omits entirely those which had been refused prior to the date of the inventory. A few other interesting facts can be gleaned from this report. John Fitch's patent cost him $4.39, while James Rumsey got six patents at a total cost of $32.18. Samuel Mulliken got four patents at a cost of $16.07. The fees were divided between Henry Remsen Jr., and another clerk, George Taylor Jr., as part of their salaries. George Rogers Clark applied for a patent for propelling boats, but no patent was ever issued. An apparently common fault among applicants noted in the report was the failure to provide proper specifications, drawings, and models.
[Page 27 illustration: Portrait of John Stevens]
In November 1790, the Patent Board moved, with the rest of the Government, from New York City to Philadelphia. John Fitch, who spent much of his time in Philadelphia, was there waiting for them, and on November 22, 1790, he presented a patent application (or petition) to them. This was not his first patent application. Indeed, he had explained his invention to the Congress under the Articles of Confederation in August 1785, and he petitioned them for an exclusive right to his invention in March 1786. Mr. Rumsey had filed an application for patent with the Patent Board earlier than November 22, 1790.
[Page 28 illustration: Portrait of Nathan Read]
The Patent Board issued an order on November 23, 1790, [footnote 12] that all of the parties who had requested patents founded upon the discovery of applications of steam to useful purposes be given a hearing on the first Monday in February 1791, and ordered notice of the order to be given to John Fitch, James Rumsey, Nathan Read, Isaac Biggs, and John Stevens. The board was not satisfied with the precision with which the inventions were described in the applications, and each of the inventors was to transmit in writing to the board a precise statement of his several inventions and the extent thereof. Isaac Biggs alone does not appear in the later list of steam patentees and is apparently otherwise unknown to history.
On April 21, 1791, John Fitch and some of his supporters met the Patent Board at the Office of the Secretary of State at Market and Seventh Streets, Philadelphia, possibly in response to this order. He presented his petition to the board members, and it was read and laid on the table without a single observation on it. [footnote 13] Mr. Fitch had learned that the Patent Board had decided to issue patents to all rival applicants, and he asked that the earliest patent might be granted to him, as he could prove that Mr. Rumsey came to his invention 12 months after him. Mr. Randolph said that the earliest applicant must have the earliest patent, thinking, as Mr. Fitch supposed, that Mr. Rumsey had the earliest application since he filed first with the Patent Board. All seemed to Mr. Fitch to assent to Mr. Randolph's assessment. Mr. Fitch believed that the Patent Board was showing partiality toward Mr. Rumsey, and pointed out that he had petitioned to the Congress for an exclusive right in March 1786, long before the Patent Board was even founded. Upon this statement, the members were silent for a time, then Mr. Jefferson said that they could make no distinction in the patents nor give one preference [Pg 28] over another. Mr. Fitch argued against this position, but the Patent Board decided that all patents should be issued on the same day. Fitch noted that he did not like to remind the board that Mr. Randolph had just said that there should be a preference for the earliest application.
Mr. Fitch noted that the judgment of the Patent Board changed as quickly as the weather, and for no other reason than that he showed that he was the first applicant. That, it appeared to him, was a sufficient reason in their judgment why the earliest patent should not go to the earliest applicant. Patents issued on all of the steamboat inventions on August 26, 1791.
After receiving the decision from the Patent Board, Mr. Fitch resolved to leave Philadelphia in late April and to spend no more time or effort to complete his scheme. If several parties had the right to use steamboats, nobody could attract investors to develop them exclusively. By granting patents without determining priority, the Patent Board destroyed the aspirations of all of the inventors, and delayed the potential of American steamboats for years to come.
Mr. Fitch spent some time writing his autobiography and considerably more time drinking and raging at the government. He had an intense mistrust of Thomas Jefferson, and when he donated his manuscript autobiography to a Philadelphia library he insisted that it remain sealed for thirty years, partly to prevent interference with it by Mr. Jefferson's friends.
John Fitch said that it would be possible for 100-ton steamboats to travel the Mississippi under the control of only four men, making the Western Territory much more valuable. Perhaps steamboats would not be developed to this point in his lifetime, but it would be done, and would have been effected by "little Johnny Fitch and Harry Voigt . . . even if my country are pleased to see me in rags, penury, and distress."
John Fitch was a tired, disillusioned, bitter, and physically ill man when he went to his land in Kentucky to drink. But even a tired and disillusioned John Fitch could not stifle his inventive mind, and he quietly and privately built a three-foot steam engine, designed to run on tracks -- a lost forerunner of the locomotive. Finally, he went to a physician about his physical illness, and was given a dozen opium pills which he could take when needed to relieve his pain. He achieved quick and permanent relief by taking them all at once, [footnote 14] probably with a liberal dose of alcohol. He died at Bardstown, Kentucky, [Pg 29] in the summer of 1798, before the first steamboat passed the place, but he expressed a wish to be buried there on the banks of the Ohio, so he would repose where the song of the boatman would enliven the stillness of his resting place, and the music of the steam engine would soothe his spirit. [footnote 15]
James Rumsey was in England to try to exploit his invention there after being given part of the undistinguished lump of patents awarded by the Patent Board. He was on the point of demonstrating his steamboat, when he was invited to speak on December 18, 1792, to a public gathering at Liverpool. The hall was filled to capacity, and he lectured on hydrostatics. Shortly after finishing, while still at the meeting, he suffered a stroke. He died the next day. His steamboat, the Columbia Maid, was set in motion on the Thames soon after his death. Without his support, and with his financial affairs thrown into chaos by his sudden death, nothing came of the invention. [footnote 16]
Nathan Read, the third of the steamboat patentees, [footnote 17] did not suffer from being an inventor. He went on, instead, to other things, becoming a congressman and a judge.
[Page 29 illustration: 1830 American Locomotive]
John Stevens Jr. of Hoboken, New Jersey, the fourth steamboat patentee, perhaps more of a steam engine inventor than a steamboat inventor in his earlier days, went on to practice engineering for the rest of his life, and left sons who were also engineers. He is said to have put the first steam-driven locomotive on tracks in this country in 1826. This was done on tracks on his own estate just to prove it could be done. One of his sons founded the Stevens Institute of Technology, in Hoboken.
It was not until years later, after the expiration of all of the 1791 patents, which occurred in 1805, that Robert Fulton obtained the financial backing to make the steamboat a practical proposition.
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