Land Office. As an independent institution, the needs of the Patent Office would be judged on their own merits and the appropriations determined accordingly. INCREASES IN FORCE AND SALARIES OF THE PATENT OFFICE. An enlargement of the force of the examining corps is absolutely essential to the proper performance of the prescribed duties of the Patent Office. This increase is needed not merely to take care of the rapidly growing examining and classification work of the office, but to keep up with the present requirements. By administrative order to-day an examiner is required to examine a certain number of applications in a given time in order that the work of the office may not fall hopelessly behind and that a creditable record, in appearance at least, may be made. The result is that patents are being granted on searches that are far from what the office would like them to be. Such patents are a menace to industry and they are costing the public many millions of dollars. When it is considered that an examiner is valuable only after acquiring an experience of at least two years, and that 25 per cent of the examining force has resigned within the past three years, it will at once be seen that substantial salary increases are imperative if the Patent Office is to survive. The salaries of the examiners have been increased only 10 per cent since 1848. Is it any wonder that they resign? Add to these the further fact that in order to qualify as an examiner one must have had the equivalent of a college education and must pass one of the most difficult and highly technical examinations of the civil service. Then consider that the Patent Office must compete for the services of these highly trained men with the private concerns that are employing so many of them now and with other scientific branches of the Government, both of which are offering much higher salaries and greater inducements for work requiring similar qualifications. Does the principal examiner's salary of $2,700 a year sound like much of an inducement to remain in the Patent Office? Can he give his son a similar education to fit him for a like position? The need for a larger force and large salaries to keep that force more stable is a crying one and one that is not and can not be denied. CONCLUSION. A single court of patent appeals, the Patent Office as a separate institution, and increases in the force and salaries of the Patent Office, substantially as recommended in the patent committee report of the National Research Council, are important and pressing items for legislation by Congress, and your committee asks your full approval of this report, as well as your instruction to cooperate with other associations and committees and with societies and chambers and boards of commerce and other scientific and industrial bodies with a view to getting concerted action back of Congress as well as presenting the matters to Congress direct. Respectfully submitted. MILTON TIBBETTS, Chairman. APPENDIX A. Committee. REPORT OF THE PATENT COMMITTEE TO THE NATIONAL RESEARCH COUNCIL. The Commissioner of Patents in 1917, with the approval of the Secretary of the Interior, requested the National Research Council to appoint a committee to investigate the Patent Office and patent system, with a view to increasing their effectiveness, and to consider what might be done to make the Patent Office more of a national institution and more vitally useful to the industrial life of the country. Mr. Thomas Ewing, who is a member of your patent committee, was the Commissioner of Patents who took that action. The National Research Council, complying with the request, appointed a patent committee, consisting of Dr. William F. Durand, chairman; Drs. Leo H. Baekeland and H. I. Pupin, scientists and inventors; Drs. R. A. Millikan and S. W. Stratton, scientists; Dr. Reid Hunt, physician, and Messrs. Frederick P. Fish, Thomas Ewing, and Edwin J. Prindle, patent lawers. On the departure of Dr. Durand for Europe, Dr. Baekeland was appointed acting chairman of the committee. Your committee has approached its work in the belief that the American patent system has been one of the most potent factors in the development of the prosperity of our country. Americans, being descendants of the European races, are not naturally more inventive than are Europeans, but under the incentive of the American patent system they have produced many more inventions and been able to pay higher wages and live on a better scale than Europeans. American inventions have played a vital part in the war. There is hardly any implement or explosive that our Army and Navy has used which is not more or less the result of American invention. The Patent Office is keeping secret and withholding from publication many inventions made since the beginning of the war and which are useful in war. After the war it will be imperative that American inventors continuously improve American products and the manufacture of them and make basically new inventions to meet and keep ahead of the strenuous efforts which Germany and other nations will make to attain supremacy by these methods. Your committee has therefore carefully investigated the Patent Office and the patent system, with a view to increasing their effectiveness, and, based on its investigation and the experience of its members, makes the following recommendations: The committee has concluded to propose a program consisting of but four features, because it believes those features are of such fundamental importance that their enactment into law would strengthen the entire system and directly and indirectly establish it upon a new and much more advantageous footing before Congress and the public; and because with a simple program, presenting comparatively little opportunity for difference of opinion as to the desirability of the changes proposed, there would be an unanimity of opinion in support of it which could not be obtained if the program were more extended. A SINGLE COURT OF PATENT APPEALS. The first proposal which your committee recommends is the establishment of a single court of patent appeals that will have jurisdiction of appeals in patent cases from all the United States district courts throughout the country in place of the nine independent circuit courts of appeal in which appellate jurisdiction is now vested. Until 1891 the Supreme Court of the United States was the appellate court in patent cases for all the lower courts. At that time the right of appeal to the Supreme Court in patent cases was taken away, and that court now hears patent cases only upon writs of certiorari, which are never granted unless certain very unusual conditions exist. The existence of nine appellate courts of concurrent jurisdiction in patent cases works serious hardships. While, theoretically, the law is the same in all these courts, there has been an irresistible tendency to drift apart in the application of the law. It has even happened in a substantial number of cases that two of the appellate courts have taken a different view of one and the same patent. It is, of course, very important thhat the questions which always exist as to the validity and scope of a patent should be settled once and for all at the earliest possible date in the life of the patent, for, as a practical matter, 17 years (the term of a patent) is a comparatively short time in which to reduce the invention to a thoroughly commercial form, to prepare for its manufacture, and to introduce it upon the market, and it is usually necessary to determine the validity and scope of the patent in order to determine the amount of money which it is safe to invest in exploiting the invention. As things are now, whichever party succeeds in the first suit that is tried on the patent, the other party is very likely to feel that in a second trial before another court he might have better luck. He, therefore, is inclined to insist upon a second litlgation. Meantime, he advertises that the questions involved were not settled in the first case. This means uncertainty on the part of the owners of the patent as to their rights and uncertainty on the part of the public as to its rights to use the invention or to determine what it must avoid in working in the same field-a really intolerable situation. Moreover, we shall never have a uniform and definite patent law, consistently applied, until we have a single court of patent appeals, independent of local sentiment, realizing a responsibility to fix the principles of the law and enforcing an harmonious application of these principles on the lower courts. It would be of the utmost value to those in the United States who are engaged in industry if the present confused condition could be corrected and a single tribunal devote itself to crystallizing the fundamentals of the patent law and to educating the courts throughout the land to uniformity in applying these principles in special cases. Attached hereto is a copy of a bill for the establishment of such a court, which has been advocated for many years by the American Bar Association, and is No. 5011 of the House of Representatives, Sixty-fifth Congress, first session. It provides for a court of seven members, which would sit in Washington, with a chief justice appointed for life by the President. The appointment of the chief justice for life is in order that there may be an element of continuity in the court. The other judges are to be selected by the Chief Justice of the United States Supreme Court from the various district and circuit judges throughout the land, and each is to sit on the court of patent appeals for a period of six years, or longer, if reappointed. There are many advantages in this plan. Among them are the following: The judges would not be men who were appointed as judges primarily to deal with patent matters. There could be no charge that special interests had a hand in their selection or that they were chosen to promote special views as to the patent law and its application. They would be men who had been prlmarily selected by the President as fit to be Federal judges in the localities where they live. Federal judges are men of a high type, and many of them are broad-minded men, which respected in the communities which they serve. They would take up the work of the court of patent appeals with a breadth coming from the performance of their general duties of judges in their own circuits or districts and would, therefore, escape the narrowing which so often comes from continuous work in a specialized field. The Chief Justice of United States Supreme Court would select from the district and circuit judges throughout the land men whom he thought most competent to serve for a term of the court of patent appeal. He would seldom, if ever, take more than one judge at a time from any one circuit. The court, therefore, would be made up of men who were primarily judges and who would be recognized as bringing to the court of patent appeals the instincts and feelings, on the subject of the interpretation of the patent law, of the courts and of the people in the communities in which they live. Undoubtedly many of them would only be on the appellate court for one term and after that they would go back to their circuits or districts with a training as patent judges such as could only be obtained by sitting for a period of years in such an appellant court. They would not only be qualified as patent judges, but they would reflect the atmosphere of the appellate court and cause that atmosphere to pervade their own neighborhood. They would thereafter undoubtedly be selected to hear patent cases in the lower courts in preference to judges who had not had training in the court of patent appeals. The courts throughout the country would, in time, become educated to the high and definite standards established by the court of patent appeals, not only by study of the decisions of that court, but by the presence in the lower courts of men who had had this special training in the upper court. It is of the utmost importance that these judges in the court of patent appeals should be well paid. Otherwise they might not be willing to break up their homes and move to Washington for a limited term. We think that their salaries should be higher than those of the judges of any court in the United States except the United States Supreme Court. The increased expense due to such court would be small. The aggregate amount of work to be done by the judges of the United States courts as a whole would not be changed to any substantial extent, because all appeals must now be heard by the present courts and judges, and if there were a single court of patent appeals, the courts of appeals in the nine circuits would be relieved of just as many appeals as were heard by it. The judges in some of the circuits are much overworked, but this is not true of many of the circuits. The Chief Justice of United States Supreme Court, in selecting these judges, could, if he chose, take into account the work of the different circuits and whether one circuit or another could bes' spare a judge. As the law now stands, judges from one circuit may be called upon, and not infrequently are called upon, to go into other circuits which are short handed. In this way any undue pressure upon the judges in any particular circuit, by reason of the loss of any single judge who went to the Court of Patent Appeals for six years, could be relieved. Moreover, it is no hardship to increase the number of judges where necessary. The whole judicial system of the United States is said not to cost as much as it does to run one first-class battleship, and the addition of a few judges would be a negligible burden upon the Treasury. A further advantage of a single Court of Patent Appeals would be that it would see clearly where there were defects in the statute and in the conditions and practice in the Patent Office, and could speak with authority on all matters which affect the theory and practical working of the patent system. THE PATENT OFFICE A SEPARATE INSTITUTION AND INDEPENDENT OF THE DEPARTMENT OF THE INTERIOR. The second proposal which your committee recommends is that the Patent Office be made a separate institution, independent of the Interior or any other department. The Patent Office was originally in the State Department, but on the formation of the Interior Department in 1849, it was made a bureau of that department, and has been so ever since. The only matters connected with the Patent Office with which the Secretary of the Interior has anything to do are the following: The Secretary of the Interior must submit to Congress all estimates for appropriations. All appointments excepting those of the commissioner, two assistant commissioners, and five examiners in chief are made by the Secretary, but only on the recommendation of the commissioner. The eight places named are presidential appointments, but the Secretary makes recommendations to the President. All matters of disbarment or reinstatement after disbarment of attorneys are passed upon finally by the Secretary. All matters of discipline are under the Secretary's jurisdiction. The Secretary of the Interior must approve all changes in the Rules of Practice of the Patent Office, but he can not compel the commissioner to make any change whatsoever. No appeal lies to the Secretary from any decision of the commissioner, either in matters of merit or practice. All such matters, as far as they are reviewable, rest with the courts of the District of Columbia. The Secretary of the Interior no longer signs the patents and has no jurisdiction to grant or refuse them. Thus it will be seen that the Secretary of the Interior is not required to know anything about patents or patent law. He is not selected because of any qualifications for the granting of patents or supervision over the Patent Office. The Secretary of the Interior has less influence over the Patent Office than over any other bureau of the Interior Department, because there are appeals to him from all the other bureaus. Nor is the Patent Office related to any other bureau of the Interior Department. The Secretary of the Interior has recently moved out of the Patent Office Building, thus severing physical contact with the Patent Office, which is but a type of the lack of mental contact between the office of the Secretary of the Interior and the Patent Office. The experience of many commissioners over a period of several generations has shown that no matter how pleasant the personal relations may be the Commissioner of Patents can not expect any real benefit to the Patent Office to flow from its connections with the Interior Department. There is nothing in common between the interests of the Interior Department and those of the Patent Office, and consequently nothing to produce any advantage from the amalgamation of the Patent Office into the Interior Department. Your committee believes that to make the Patent Office an independent bureau would greatly increase the respect of the public and Congress and the courts for it, and would make it easier to procure enlarged appropriations and better salaries than under present conditions. As to appropriations, under present conditions the demands of the Patent Office, for equipment, personnel, and salaries are necessarily subjected to comparison both by the Secretary of the Interior and by Congress with those of several other unrelated bureaus, each pressing its own demands and criticizing any apparent preference. In the opinion of your committee, this operates as a severe handicap. In estimating the needs of the Patent Office there should be no discussion of the demands, for example, of the Pension Office or the General Land Office. As an independent institution, the needs of the Patent Office would be judged on their necessity and the appropriations be determined by consideration of general policy. As to personnel, the enhanced dignity and independence of the Patent Office would render all positions of importance in it more attractive, and particularly would make it easier to secure and retain in office men of the necessary quali fications to fill the difficult office of commissioner. A copy of a proposed bill for making the Patent Office an independent bureau is annexed to this report, and its enactment is recommended by your committee. INCREASES IN FORCE AND SALARIES OF THE PATENT OFFICE. The third proposal which your committee recommends is a substantial increase in the force and salaries of the Patent Office. The patents granted by the United States Patent Office are of less average probable validity than formerly, because the number of applications for patent and the field of search are constantly increasing, while the examining force for many years has been insufficiently large and has not been increased proportionately. The inducements are so unattractive that 25 per cent of the examining force has resigned within the past three years. Your committee finds that the Patent Office is suffering both from lack of examiners and from inadequate compensation. The salaries of the Patent Office examiners have been increased only 10 per cent since they were fixed in 1848, when they were approximately the same as those of Members of Congress. At the time the salaries of the examiner in chief were fixed, they were the same as those of Federal district judges. During the past 70 years the compensation for technical service in almost all other directions has been increased very largely. Congress, in creating new positions, is willing to pay technical men salaries more nearly approximating the usual compensation of such men in private service, but, having started a position at a given salary, is very loath to increase the salary. A principal examiner, to pass the entrance examination for the Patent Office, must himself have an education equivalent to that of a college graduate, and yet his salary is so low ($2,700 a year) that it is practically impossible for him to give his own sons a college education. Your committee believes that salaries should be paid to the examiners proportionate to those paid for equally high technical work in other departments created recently; such, for example, as are paid in the Army and Navy and in the office of the Attorney General. The examiners are passing upon questions often involving millions of dollars, and they can not be at their best in this vitally important work unless their salaries are large enough for them to live comfortably and without strain. The chances of making mistakes in the granting of patents are great enough even under the most favorable circumstances, and they should not be increased by compelling the examiners to work for inadequate salaries. The inducements should be such as to present compensation and a career which would attract and hold men of the highest ability. The payment of adequate salaries and the creation of provisions tending to hold out attractive prospects to the examiners would also tend to raise the dignity of the Patent Office and to increase its standing in the estimation of the public and of Congress and the courts, and so would tend to enhance the value to the public of the patent system. The work of the Patent Office has grown so much more rapidly than has the examining force that the examination to determine whether or not the invention claimed in an application for patent is novel is imperatively restricted to the field of search where it is most likely that the invention would be found. Many patents are granted which would not be granted if the examiner had time to make a thorough search. One of the Assistant Commissioners of Patents is compelled to devote a large amount of his time to speeding the work of the examiners in order to prevent further falling behind in the number of unexamined cases. Money is often invested on the strength of patents, only to find later that the patent is upset in the courts because the Patent Office search did not go far enough to discover that the invention had already been disclosed in some earlier patent or publication. The granting of a patent with invalid claim or claims which are too broad or which are nebulous is a menace to the art to which it relates, and until such a patent has been adjudicated and its effect judicially determined it tends to prevent manufacturing and commerce in that art. Such a patent may in this way cost the public many millions of dollars, besides the cost of establishing its invalidity or its true breadth or |