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CHAPTER V.

the fullest extent possible, consistently with the maintenance of the

first, is that patents shall be easily, 9 speedily, and cheaply attainable, so

as to be within reach of rich and

THE AMERICAN PATENT SYSTEM.

PREVIOUS OFFICIAL EXAMINA-
TION.

poor alike.

Here, too, the interests of the public and inventors are identical, for the more easily and cheaply valid patents can be obtained, the greater will be the number of new and useful inventions made and disclosed, and the more rapid in consequence the progress of the useful arts.

Naturally enough, inventors anxious to obtain their patents, and inclined to look upon the grant as matter of natural right, are apt to look upon this second object as the most important. But a little reflection will convince them that the matter of prime importance to them is the degree of confidence which they can place in the validity of their patents, and that a reasonable expense of time and money in necessary proceedings to ascertain, before a patent is granted, that it shall have the essentials to validity, is beneficial to themselves.

In this regard, too, the interests of inventors and the interests of the public are the same.

It is to the advantage of bothit is the right of both—that, while the issue of valid patents shall be as free as possible, the execution of the law shall yet be so regulated that the smallest possible number of invalid patents shall escape into existence.

WE now come to the consideration of the more immediate subject of this treatise,--the merits of the American patent system. And first, as to that examination into the novelty and utility of an invention before granting a patent, which is the main distinguishing feature of the system. This peculiarity is a recognition of the principle to which we have above referred, that the first point of importance, both to the public and to inventors, is to provide for ascertaining, before a patent is granted, that the invention is new, useful, and clearly described and claimed.

But perhaps the intent and effect of this previous examination can best be understood by comparison with foreign systems, of which it forms no part ; that of England, for example.

In England patents are, to all practical intents and purposes, granted for the asking, without inquiry as to whether the inventions sought to be patented are either new or useful, or sufficiently described.

The time and mode for determining these questions are after the grant of the patent, through the medium of court or jury.

It is plain, therefore, that an English patent carries with it no presumption of validity, unless, having

undergone thorough scrutiny in the

course of litigation, it has been indorsed by court or jury.

Of what satisfaction and value to the inventor, it may be asked, is a patent upon which he cannot place, nor expect others to place, any degree of confidence, unless it shall have successfully passed through the fire of litigation.

Such a system is a departure from the true principles of good legislation, whose highest office it is to cut off sources of litigation.

For this end are designed the numerous regulations which the laws provide, touching the acquisition, holding, and transmission of all kinds of property, with a view to ascertain, define, and publish the nature and extent of individual rights, that there may be the least possible occasion for those mistakes, and that confusion or conflict of claims from which litigation springs.

And certainly patent property should not be excepted from, but should rather receive an unusual degree of this solicitude of the law, for it is property which the law itself has created for the public benefit, and which, therefore, not only public policy but public good faith requires should be most carefully and tenderly guarded froin the mischiefs of litigation.

The English patent law, therefore, in making litigation necessary to raise any practical presumption of the validity of a patent, is certainly an anomalous law.

An English patent which has not yet been successfully litigated is naturally an object of doubt and suspicion—a state of affairs productive of two classes of evils: First, the very

inferior value of patents as negotiable property, an evil which that large class of inventors lacking capital will readily appreciate ; and, second, the constant and aggravated violation of patent rights which must ensue from the general disregard in which those rights, from their uncertainty, are held.

It is manifest that under such a system the field of patent property is a mere scrambling-ground, with all the odds in favor of the wealthy and the unscrupulous. A poor patentee will be fortunate indeed if he is able to make his patent a source of profit to himself; the chances are that he will be driven to his election whether quietly to submit to the wholesale piracy of his rights, or whether dearly to purchase the alliance of capital for the maintenance of those rights at the sacrifice of the lion's share in them.

In this way patents, while they may serve to enrich the rich, are a very doubtful blessing to the poor. The privilege which such a patent confers, is, substantially, the privilege of establishing a right, if one can, by a lawsuit, a species of investment in litigation in which none but a litigious man can find enjoyment, and none but a wealthy man can indulge.

It is true, that the inventor of a

really valuable improvement may find some protection in the enterprise of capitalists desirous of obtaining the benefit of it, but this is an accidental and not always desirable sort of protection.

It is, perhaps, one of the strongest possible arguments in favor of a patent system, that the English system, inefficient and unjust, as in many respects it is, and very expensive, has yet undoubtedly done much to foster the practical arts, and is resorted to by a large number of inventors.

Such evils as we have indicated, the system of previous examination adopted by our law is intended to obviate as far as possible. Absolutely to remove patent or any other property from the region of doubt and litigation is impossible, and however perfectly adapted to this end the theory of a law may be, its administration must, if only from unavoidable errors of judgment, fall short of attaining a practical realization of that theory. We say this because of the complaints and criticisms which have from time to time been directed against our law; undoubtedly the majority have arisen from particular instances of failure or shortcoming in the administration of the law.

It is not our purpose here to contend that the past or present administration of the examining system was or is perfect, or so nearly perfect as it might be. It is no

doubt the case that the capacity of the machinery of administration has not kept pace with the rapidly growing demand upon it, and time and experience have suggested, and will continue to suggest desirable additions and modifications in detail.

But from the complaints, just and unjust, made against the administration of the examining system, have been deduced arguments that the system itself is a failure, a positive disadvantage and should be abolished.

The very doubtful soundness of a conclusion thus arrived at is pretty apparent. It is not a fair conclusion, unless it be shown that the defects of administration are not the accidents liable to arise in any administration, but are defects originating and inherent in, and inseparable from the very nature of the particular system administered. When it is shown that the best attainable means of administration have been tried and have resulted in the same faults and defects as inferior means, then it is allowable to assume that the system cannot be administered, and should be abolished ; but in this case the complaints, so far as they are true, are such as indicate very possible improvements of administration.

Since, however, this subject of the advantage or disadvantage of an examining system is one of great importance and has attracted much discussion pro and con, it is worth

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while to look into the complaints soundly and justly by a competent which have been urged against our tribunal, from the evidence afforded system to see how far these com by the application for a patent. plaints are justifiable, and entitled But the value of an invention, to the great weight which has been which consists in its utility to the given to them.

public at large, or more immediIt is necessary, first, to strip the ately to those concerned in that question of a very common fallacy, branch of art to which it relates, arising from an utter misunder can evidently be determined only standing of the law, but which is by time and experience in actual often advanced as a proof that the i use ; the only just verdict must system of previous examination is be one rendered by the public from not effective. It is undoubtedly use; no law, nor man, nor set of the fact that an exceedingly large men, can justly undertake to preproportion of patents granted are determine the question, since such for trifling things, or for things a decision must necessarily be uttervalueless, because inferior to pre ly arbitrary, and mere matter of viously existing things, for the same opinion based upon insufficient evior a similar purpose. Now, it is

dence. asked, why does the government, This point we have already unwhich pretends to grant patents

dertaken to illustrate, in discussing for new and useful inventions only, the question of the proper mode of constantly issue patents in large paying inventors for their contribunumbers for useless and trifling no tions to the progress of the useful tions ? Such a question is simply arts; and we observed that patents an entire misapprehension of the were the fairest mode, because in intent of the law, and of the mean leaving the question of the value of ing of the word useful as employed each particular contribution open, in the statute. The word “useful” to be decided in the only proper is not there synonymous with the way, they give to the inventor the word “valuable,” nor does it indi opportunity, by the exercise of ordicate that an invention to be pat nary diligence and discretion, of entable must appear to be more deriving a remuneration proportionefficient than, or even equally effi ate to that value, as thus most cient with, prior inventions of the soundly tested and determined. same class; but it simply means

To be sure there are many cases that to be patentable, an invention in which ordinary perception and must be capable of use for some bene common sense, could without apficial purpose, and not inoperative, plying the tests of use and experivicious, or immoral.

These are

ence, soundly and justly determine questions which can be decided the worthlessness of an invention,

own senses.

they are valuable, without inquiry or even against the evidence of their

This of course is a voluntary error, for which the person in error is alone responsible.

And for the evil, so far as it arises from mere lack of discretion, or knowledge in individuals investing their time and money in patented inventions, to hold the patent system responsible, or to draw therefrom an argument against that system, is about as reasonable and logical as though a man, having stupidly wasted his money upon a poor piece of land, should cast the blame upon Nature for having placed the land in

ence.

his way.

but in all cases such mode of decision would be objectionable as arbitrary, and in very muny cases would be at fault and unjust.

It would not be just to inventors generally, and there must be one rule of justice for all, to attempt to make this question of value a subject for legal or official decision, nor would it be in any way beneficial to the public. It is equally to their interest and to that of inventors, that every new idea should be allowed the test of practical experi

There is no reason why inventors should not have the same opportunity, as other producers, of submitting their productions to public arbitrament. Nor can patents for valueless inventions be objected to as working any legal injury to the public, for patents cannot practically operate as a restraint or as a tax upon the public with reference to things which, being of no adyantage, they do not care to use.

There is no doubt that patents for valueless inventions have a mischievous effect in leading to lamentable wastes of valuable time and money; but this palpably is something for which the patent laws and their administration are in no way answerable. The evil in great measure arises from the very misapprehension of the law which we have been discussing, and which causes people to accept patents in the way of official evidence, which they are not, of the value of the things patented, and thus to conclude that

It is true that our Patent Act authorizes the Commissioner to issue patents where he shall find the inventions sufficiently useful and important, and this might seem to give the Commissioner a discretion capable of much latitude in its exercise, in adjudging as to the patentability of inventions. But this discretion is to be exercised in accordance with the known policy and principles of the law-as judicially settled—and the inquiry of the Commissioner is to proceed no further than to ascertain that the invention has that negative sort of utility which is necessary for the support of a patent if granted.

“By useful invention in the statute (said Judge Story) is meant such a one as may be applied to some use; beneficial to society in contradistinction to an invention which is

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