History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 28 -- Last of the Little Patent Office

[Pg 171]

David P. Holloway left office in mid-August 1865, and Thomas Clarke Theaker (1812-1883) was appointed Commissioner of Patents on August 15, 1865. Mr. Theaker had been a machinist and wheelwright, and was elected to Congress from Ohio, serving from 1859 to 1861. When he was not re-elected, he was appointed a member of the Board of Examiners-in-Chief (the Board of Appeals), and was in that office when appointed Commissioner.

The end of the war brought a surge of activity in the Patent Office. The number of applications filed in 1865 was 40 percent larger than in any preceding year. The number of patents granted was almost double that of 1861. The surplus money in the Patent Fund was increased during the year by more than 125 percent. It was a banner year for the Patent Office.

[Page 171 illustration: Portrait of Thomas C. Theaker]

Commissioner Theaker wrote to the Secretary of the Interior asking if citizens of the states recently in rebellion were entitled to take out patents as formerly. Secretary James Harlan consulted President Johnson, who instructed him to reply that each such resident must furnish an original or authenticated copy of the prescribed amnesty oath to the Patent Office before a patent could be issued, and if the applicant were in the "excluded classes," such as a former officer of the Confederate government, he also must provide evidence of a special pardon by the President. [footnote 1]

By 1866, the Commissioner was complaining in his Annual Report of a great shortage of room in the Patent Office Building for the Patent Office itself. More examiners were required to carry out the work assigned to the Patent Office, but the Commissioner thought there was no room for any more examiners in the available space. Every year from 1863 through 1867, the number of patents issued that year increased by between twenty and forty percent from the previous year.

Beginning in November 1866, the Patent Office began printing the specification of each patent as it issued. Previously, the Patent Office had to make two manuscript copies of each specification, one to affix to the issued patent and one for the record copy in the Patent Office. In 1861, when printing specifications was first tried and found to be too expensive, the printed copies were made in addition to the two manuscript copies. In 1866, [Pg 172] Commissioner Theaker calculated that if printed copies of the specification were used for the issued patent and for the record copy, the expense of making the manuscript copies could be eliminated. The Patent Office contracted with Philp and Solomons of Washington for 10 printed copies of each specification at a cost said to be slightly less than the cost of two manuscript copies. The actual cost was 27 cents per 100 words for composing and printing 10 copies of the specification, compared to the usual cost of 10 cents per 100 words for manuscript copies, which does not seem to equal the numbers provided by Mr. Theaker. The remaining copies could be sold to the public at a lower price than formerly charged for manuscript copies, while still adding to the net income of the Patent Office. There seems to have been some opinion in Congress that the Public Printing Office should have done the work instead of a private contractor. [footnote 2]

[Page 172 illustration: New Patent Office After Completion]

In 1867, the fourth and final wing of the then New Patent Office Building was completed. However, the Interior Department preferred to think of the building as the Interior Department Building, and the Patent Office was not allowed enough space to accomplish its mission.

In 1867, the Patent Office issued 13,015 patents. For the first time, the Patent Office issued more patents in one year than the 10,000 it issued in the first 46 years and lost in the fire of 1836. In 1867, the Patent Office issued 10,000 patents in less than 46 weeks.

In late December 1867, Commissioner Theaker resigned. [footnote 3] According to Charles Mason's December 10, 1867, diary entry, Commissioner Theaker had just been given notice to quit. However, he remained in office until he [Pg 173] submitted the Annual Report for 1867 on January 14, 1868, which was said to have been about his last official act. [footnote 4]

After Mr. Theaker's resignation, the Chief Clerk of the Patent Office, Gen. A.M. Stout, served as acting Commissioner from January 20 to July 24, 1868. Immediately upon his assumption of the office, Mr. Stout was asked why the three daughters of the late Chief Justice Roger Taney (1777-1864) were not receiving their fair share of the copying which the Patent Office had done. These copying jobs were much in demand by impoverished genteel ladies. Mr. Stout informed Secretary Browning that the name of one daughter had never been sent to the Patent Office to be given copying jobs, and thus she had never received any. The other two daughters each were being given about $50 per month in copying, which compared favorably with the other copyists, except those ladies having custody of assignment books. [footnote 5]

[Page 173 illustration: Examiners at Work]

On April 23, 1868, Munn & Co. wrote to Secretary Browning to tell him that Scientific American had published all claims of all patents weekly for many years. In the past, the copies for Munn & Co. were made by Patent Office copyists at the rate of ten cents per word. Recently, the Patent Office had been issuing printed copies of the claims each week. Munn & Co. asked [Pg 174] that the acting Commissioner be directed to give them copies free of charge, as they were furnished to foreign patent offices free. If they were to be charged, they wanted the charge to be no greater than the usual price for other printed matter which was sold by the Patent Office. Mr. Stout wrote to the Chief Clerk of the Interior Department, Gen. J. C. Cox, informing him that the only free copies were given to the examiners and to the British Patent Office. The British Patent Office, of course, gave the U.S. Patent Office copies of their entire issue of patents. The American Artisan paid the Patent Office $100 a week for a stereotype mat of the claims. No one else was given free copies. Mr. Stout wrote that the only possible question was whether printed copies of claims should be furnished at five cents per 100 words, as was done for printed patents, as opposed to 10 cents per 100 words, as was done for manuscript copies in general. The available record stops here. [footnote 6]

If it sounds like there were a lot of generals working for the Patent Office and throughout the Interior Department about this time, that is because there were. The war was over, and generals had to be recycled somehow. In late 1868, the examiners in charge of land conveyance were Gen. Albin F. Schoepf and Gen. William Henry Browne; Gen. -- later Commissioner -- Ellis Spear had been an examiner since 1865. For the next decade or two, Civil War generals occupied many of the high positions in the Patent Office.

[Page 174 illustration: Portrait of Elisha Foote]

On July 28, 1868, Elisha Foote (1809-1883) was appointed the eleventh Commissioner of Patents. He, like Theaker, had been a member of the Board of Examiners-in-Chief before his appointment as Commissioner. Mr. Foote had been a judge in western New York state and was later a patent attorney, inventor, and author of several books and papers on mathematics.

In his short term in office, Commissioner Foote accomplished several things. Until Foote changed the practice, it was common for application papers to be returned to the applicant for revision. The necessary changes would be written into the papers, or new papers would be provided, and there would be a new examination. Foote decided that papers once filed in the Patent Office must remain in the office files and could not be inspected by the applicant for any purpose whatever. For the first time, a patent would have a file history which could be examined after the patent issued. No changes could have been made in any papers filed in the Patent Office. [footnote 7]
[Pg 175]
Commissioner Foote refused to pay the bills from Dempsy and O'Toole under a contract for furnishing stationery for the Patent Office as awarded by Commissioner Theaker, because he felt that the contract had been awarded because of fraud. Under this contract, bond paper was being purchased at eight cents per sheet. It seems that in evaluating competing bids, the Patent Office purchasing agent did not weight the various items according to how much was being purchased. The result was that a bid for $8,000 was considered lower than a bid for $3,000. Other defects were also found in the contract. When the Commissioner refused to pay the bills, Secretary of the Interior O. H. Browning appointed a committee to examine the matter, including examiners B. F. James, Norris Peters, and E. W. Griffin. When the committee was unable to discover anything deserving censure, a special committee of the House of Representatives was appointed and directed that all papers and correspondence relating to the matter be forwarded to them. Apparently, the Secretary attempted to make a farce of the investigation by limiting what the committee could inquire into, and by assuring that they had no power to coerce witnesses to appear or to testify under oath. [footnote 8]

Mr. Foote appointed examiners W. B. Taylor, J. W. Jayne and examiner-in-chief B. F. James as a board to examine candidates for positions in the office. In addition all examiners currently in the Patent Office had to pass the same examination in order to keep their positions. Mr. Foote wrote that he intended to raise the standards of the principal examiners to that of the judges in the trial courts of the country, and to eliminate the practice of appointing persons as examiners just because they happened to be related to a congressman or to a senator. [footnote 9] There had been earlier employment exams in the Patent Office, [footnote 10] but this set of exams preceded the general Civil Service System examinations by about 15 years. [footnote 11]

[Page 175 illustration: Portrait of Samuel Sparks Fisher]

Mr. Foote left office about March 1869 and was replaced by Samuel Sparks Fisher (1832-1874) about the end of April 1869. Fisher had been a colonel in the Ohio National Guard during the Civil War, and was in practice as a patent attorney in Cincinnati before and after the war. He had been a precocious child, able to read a primer at age two. His father, a professor of chemistry, had encouraged his early learning.

Female copyists had been employed to work in their own homes for many years and were paid at 10 cents per 100 words copied. At the beginning [Pg 176] of 1869, about 65 women were employed to work at home. An act was passed on March 3, 1869, authorizing 53 female copyists to be employed to work within the confines of the Patent Office Building, at a salary of $700 per year. Six rooms were set aside for their work when they began on July 1, and it was soon found that their work was fully equivalent in quality and quantity to that of the male clerks doing the same work at $900 per year. The number of male clerks was reduced, and Commissioner Foote recommended equal pay for equal work. [footnote 12]

[Page 176 illustration: Portrait of Thomas Allen Jenckes]

Congressman Thomas Allen Jenckes of Rhode Island (1818-1875) had sponsored two bills to establish of a department of civil service in 1868, with competitive examinations and initial probation, but he did not succeed in getting them passed. [footnote 13] Mr. Jenckes was a patent attorney who was the chairman of the House Committee on Patents about this time and managed to introduce several useful bills to improve the patent system and to get some of them passed. He introduced a bill in 1866 to pay examiners the money withheld from them when their salaries were reduced in the hard times at the beginning of the Civil War. [footnote 14] He introduced another bill in 1869 to appropriate money to enable the Patent Office to lithograph the drawings of issued patents. However, Congressman Henry L. Dawes managed to stop this bill, arguing that the Patent Office, although rapidly growing in importance, had been seriously crippled already by the thieves who were issuing its contracts on the one hand and by inconsiderate legislation on the other hand. [footnote 15]

Mr. Jenckes made several proposals, in one or more bills, in the spring of 1870, to revise the patent system. He proposed to abandon publication of the Annual Report with its claims and drawings from all patents which had issued in the past year and to substitute the publication and weekly distribution of complete specifications and drawings from all patents issued that week. Photolithography had been developed at this time to the point where photographic copies of all patents could be printed at a very low cost. One estimate was that about 180 copies could be printed of 14,000 patents per year for about $100,000, or about four cents per copy. At the time, hand-drawn copies of the drawings from a patent, when required, cost from $10 to $100. A joint resolution supporting such publication and gratuitous distribution to each state was approved by Congress on January 11, 1871. [footnote 16]
[Pg 177]
Mr. Jenckes also presided over the committee which pushed a bill through Congress in 1870 to thoroughly amend and codify the patent laws. When Mr. Ruggles put through his bill in 1836, a good law resulted, but it was a law for a country which had issued 10,000 patents in the past 46 years. Times had changed, the country was much more prosperous, and the Patent Office had issued about 14,000 patents during the most recent year. Mr. Ruggles revolutionized the patent system of his day; Jenckes refined that of his time. He improved appeals procedures, proposed but withdrew a requirement for maintenance fees, defined the time when rejected applications became abandoned and not subject to further prosecution, allowed a party sued by a patentee to win the suit by having the patent declared invalid, and even introduced laws to allow registration of trademarks in the Patent Office. He gave an impassioned speech in Congress on the necessity for patents which may have later secured the passage of his patent codification bill, which became law on July 8, 1870. [footnote 17]

Who was this Thomas Allen Jenckes? Remember Joseph Jenks Sr. (back in Chapter Two), who got the first patent for an invention in British colonial America. Thomas Allen Jenckes was his great-great-great-great-great grandson. His father changed the spelling of Jenks, but it was the same family. [footnote 18]

[Page 177 illustration: Portrait of James A. Bland]

Allen M. Bland (ca. 1833-poss. ca 1882) may have been the first black clerical employee of the Patent Office. Many conflicting stories are told about Bland. He has been said to have been the first black examiner, but your guide can find no record that he was ever an examiner. He was from Charleston, S.C., and attended a preparatory school at Oberlin College. It is also said that he graduated from Wilberforce University, but no record of his attendance at that school has been found. In 1854, he was living in Flushing, New York, and by 1860 he was a school teacher in Rensselaer County, New York. He came to Washington as a tailor in 1865, and was a clerk in the Patent Office by about 1870. He held this job until about 1874 while attending law school at Howard University. He was afterwards a tailor located near Howard University through 1882. He is known primarily as the father of James A. Bland (1854-1911), a musician, minstrel and author of Carry Me Back to Old Virginny, In the Evening by the Moonlight, and Oh, Dem Golden Slippers. [footnote 19]

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