« ZurückWeiter »
injustice of another kind to the public and inventors; but the alleged injustice with which we are now dealing is that of expense and delay.
As to abandonment of applications, it is to be said, that in most cases it is voluntary, arising either from the applicant's ignorance of his rights, or from indifference or want of energy, in either of which cases the fault is his own.
It may be admitted that the mistakes of examiners have on rare occasions led to the involuntary abandonment of just claims. Such cases must be exceedingly few, since the fees for appeals are so small as to be within the command of almost every one.
As to difficulties being cast in the way of obtaining patents by the mistakes of officers, there is vastly more substance in this branch of the complaint than in the other. At the same time it is an evil which has been greatly exaggerated by the natural prejudices of inventors.
An inventor looking at patents in the fallacious light which we have been endeavoring to expose and controvert, and regarding himself as the only party interested in the patent laws, satisfied, too, in his own mind, with or without inquiry, that his invention is new and useful, and that a patent is his right, chafes at what he considers, in his particular case at least, to be a useless delay. The same man, having real estate to sell, would hardly expect any one to purchase without
taking the time to satisfy himself upon the question of title. Let him reflect then that the public, in granting him a patent for his invention, does so by way of purchase, and that, unless his invention be new and useful, he has nothing to sell, the public, in providing that its officers shall take necessary time and proceedings to determine these questions before consummating the bargain, is doing simply what any business man would do in like case.
It is an important fact to be remembered too, that of the delays and expenses incurred through rejections of applications, a very large percentage is due to the informal, imperfect, and unskilful preparation and presentation of such applications by inventors or their representatives. This is a fruitful cause of difficulty of which little is heard for very obvious reasons; it is a cause likely to be overlooked, or at least not openly acknowledged by the parties to whom it is due.
It is the prevalent error in these complaints of expense and delay, that they are directed against the Patent Office indiscriminately, without perception of, or reference to, their true causes. Occurring in the Office, they are charged to the Office; and to this not only the natural impatience of inventors leads, but the conceit or the lack of candor of many of a large body of professional men.
This is not to be wondered at while there is among so large a proto be infinitely fewer than may be commonly supposed, are yet more numerous than need be, and while they do not serve to point the extravagant arguments which have been based upon them, they do serve to indicate very possible improvements of administration.
ACTUAL DEFECTS OF THE PRESENT
ORGANIZATION OF THE PATENT
OFFICE AND THE REMEDY.
portion of inventors, a one-sided and partial understanding of the nature and object of the patent laws.
This leads them to measure the justice and efficiency of the administration of the laws solely by the ease and readiness with which patents are allowed, a test so obviously wrong, that nothing more need be said about it.
That this should be the case with inventors is not perhaps to be wondered at, but it is a somewhat astonishing and discreditable fact, that this false sentiment is echoed and encouraged by some of those whose profession it is to make and prosecute the applications of inventors.
That an inventor should find in every unexpected lapse of time or dollar of expense incurred in the attainment of his wishes an instance of personal injury and a cause of complaint is not unnatural, but for a man, whose profession should bespeak a fair understanding of the law, and a cool judgment, to adopt or to counterfeit the like hot-headed, misjudging impatience, speaks little for his capacity or his candor.
While thus contending that the class of complaints with which we have been dealing, have received a degree of weight and credit, to which they are by no means entitled, we would not be understood as denying that there have been some just grounds for such complaints.
Such legitimate causes, though on examination they will be found
HAVING seen how strongly the ordinary criticism of the administration of the examining system is from the very nature of things tinctured by interest and mistaken prejudice, and how much of it is based upon opinion, not always the most competent or impartial, let us next see what evils the most impartial inquiry will be disposed to allow, either as existing or as threatening, and inquire whether they are of such a nature, and so mischievous that their existence or probability presents a fair argument against the wisdom of the system.
The object of the system, as we have seen, is to ascertain at a time most advantageous to the public and to the inventor, that is, before a patent is granted, whether the subject sought to be patented is legally patentable.
The questions to be looked into may be stated generally as
novelty and utility of the invention, but these embrace a variety of questions, requiring for their proper solution, experienced and sound judgment.
The most obvious labor which the system involves is that of research ; for the thorough and impartial performance of this duty, it will not be denied, an organization like that of the Patent Office is most admirably adapted.
It is in the assumption of this duty by the public through its designated officers, that the real benevolence of the examining system is most strikingly apparent; for inventors individually to make the researches necessary to determine with any degree of satisfaction whether their inventions are new or old, would in most cases be utterly impracticable, and could not be attempted save at enormous cost of time and money. In applying the moderate fees asked of applicants for patents to the collection and compact and systematic arrangement of the means for readily making these researches, and to the payment of a sufficient number of officers to make them, when it is most to the advantage of inventors that they should be made, the law proceeds upon principles of true liberality and justice.
But the proper application of these researches involves judgment upon matters of diverse natures, requiring for their consideration different kinds of knowledge and experience.
The question of novelty is not one merely of the apparent similarity or diversity of things in matter of form or constituent parts or operation, it is not a question addressed merely to the eye or ear.
The questions of novelty and utility are naturally blended thus far, that inventions are really new inventions, entitling their inventors to be treated as producers to the public stock, only when useful in the sense of availability to some beneficial end.
It therefore often becomes a matter for nice discrimination and judgment to determine whether the points of apparent difference between one device and another involve this utility, and so go to constitute patentable novelty, or whether they are mere barren changes of no effect.
And apart from its bearing upon the question of novelty, that of utility is in itself, one for the intelligent consideration of which a high degree of knowledge and discretion is often required.
Then as the law has specified different classes of patentable subjectmatter, it frequently becomes necessary to decide under which of them, a particular invention is properly to be classed, and whether therefore it is or is not patentable as described and claimed by the applicant.
And as the first inventor only of a new and useful device is entitled to a patent, the questions to be de
cided in the Patent Office are not without due regard to the capacities only those which in every case exist required for its proper performance ; between claimants and the public, the intrusting of that to many which but those also which frequently arise could be more satisfactorily perbetween different claimants of the formed by a few; the improper consame invention. These are judicial junction of opposite duties, some questions requiring for their proper executory, others discretionary and determination a knowledge of gen- judicial, some requiring chiefly time eral and of patent law.
and diligence, others requiring speThe various questions then, which cial knowledge and capacity, and necessarily arise in the administra- the too general dispersal of importion of an examining system, require tant powers. the union within the Office of differ- Such mischiefs as these are likely, ent capacities and accomplishments; if not carefully provided against, to there must be diligent research, creep into any such organization, there must be capacity to judge upon and to cause conflicts, confusion, questions of fact touching matter in and lack of uniformity, exposing the the various practical arts, and there whole structure to the charge of must be capacity correctly to apply cumbrousness and inefficiency. the law to the various states of fact. Into such mischiefs and its con
Applications for letters-patent are sequent accusation has the Patent very numerous, they relate to many Office in fact, to some extent, justly different branches of art, and in fallen. their consideration, as we have seen, In looking for the cause of this many questions of diverse kinds we may proceed upon the principle, arise.
heretofore indicated, that the labor For the administration therefore of the Patent Office is of two kinds, of the examining system, an exten- one calling for intelligent research, sive organization is required em
the other for judgment. bracing many officials.
The chief requisites for the proper Now the evils likely to arise in performance of the first class are such a state of affairs will readily time, diligence, and division of labor; suggest themselves; they are the for the second, the wants are learndangers incident to any organiza- ing and capacity, and so far as postion embracing various classes of sible, concentration of authority. duties, the proper performance of Division, so far from being a necessome of which requires that they sity here, is a grave objection, and should concentrate in the hands of for the evident reason, that in mata few, of others that they should be ters of judgment affecting important divided among many.
interests the desiderata are certainty An improper division of labor and uniformity.
Any one aware of the present constitution of the Patent Office will admit that these principles have not in practice been recognized to that extent which the law originally contemplated.
In the early days of the Patent Office, when inventions were comparatively few, the labor and authority were placed in the hands of one or two men. The demand on the Office grew more rapidly than had been anticipated, and the necessity for a division of labor became apparent. It was a natural though a mischievous result, that with the division of labor there was also a division of authority, which necessarily resulted in a want of uniformity in the practice of the Office.
In 1855, Judge Mason, then Commissioner of Patents, perceived the difficulties which had even then, when there were but twelve principal examiners, arisen from this subdivision of independent judicial action. The judge said, in his report, “There are very grave objections to a further increase of the number of principal examiners. The system has already overgrown in that respect, and seems almost imperatively to demand some modification to give it a proper harmony and uniformity of action. They (the examiners) act to a considerable extent independently of each other, and possessing very different minds
and views they follow different rules Lof action and decision.”
To-day, we see the duties and the
powers originally designed to be exercised by one man or at least by a few men, acting in conjunction, divided among more than a score of officers acting independently of each other, and what is worse, to a great degree independently of the really responsible power of the Office.
It is here that the evil lies, and the parties injured are not merely those from whom the loudest cries of injury are heard, not those impatient men who measure the justice and efficacy of the system by the ease and readiness with which the Office may coincide with their views and gratify their wishes, but the public, and those patentees whose interests—measured by the value of their contributions to the practical arts—are of great weight.
To the rights or presumed rights of applicants, the power of appeal gives ample protection against the adverse action of any of the score of examiners, but the rights of the public and those of prior patentees have no such protection.
Yet there can be no doubt that this defect in the organization of the Patent Office is really also of serious injury to applicants for patents. While it does not necessarily tend to ultimate and permanent injustice, it certainly does tend to vexatious trouble and delay, in themselves grave injustice.
Plainly the existence of a large number of nominally subordinate but in effect independent officers,