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each one of them uniting in himself executive and judicial functions, and this without that direct responsibility which should attach to such functions—officers whose actions are to a great extent uncontrolled by the authority with whom is placed the responsibility for the proper administration of the law-presents an anomalous and mischievous state of affairs. Every officer may constitute a little court of his own, and may adopt his own maxims of law and of practice, and it will be a marvel in the history of human nature if the disposition to do this is not in an inverse ratio to the real capacity and responsibility of the man.
This is an evil fruitful of doubt and delay, needlessly embarrassing inventors in the presentation and prosecution of their claims, provocative of prejudice and irregular practice, and it is an evil of which in the present organization of the Office, there is constantly increasing danger. Fortunately, as a rule, the officers of the Patent Office have, considering the temptation and the opportunity, been signally free from dangerous assumptions of authority.
Far from attributing the want of uniformity in the action of the Patent Office, and the evils resulting therefrom, to the officers of that Bureau personally, we should be doing an injustice to many accomplished gentlemen who have occupied, or who now occupy, the re
sponsible position of Examiner, if we failed to record our opinion that the degree of uniformity of action is, considering the circumstances, somewhat astonishing, and may be charged to the good sense and ability of these officers as a rule, and to their observance of the instructions derived during the last few years from able heads of the Office.
True there have been, and will probably continue to be, examiners with perverted ideas; men who consider they are best performing their duties by presenting every obstruction to the grant of patents by technical objections and trifling actions; others again, who will manufacture patent law of their own, and others who through a spirit of display will apply theoretical dogmas derived from collegiate cramming in cases where practical knowledge and common sense would be a much more available means of arriving at a correct judgment. These officers are the exception, but the mischief they have caused, and continue to cause, is great, so great as to reflect more or less odium on the whole examining corps, so that the many intelligent officers have had to bear the brunt of objections attributable to the freaks of the few.
Undoubtedly this division of power has worked great mischief to applicants for patents, and for the same reasons that it has worked still greater mischiefs to the public and to patentees. It creates too
of the law." It is not one of the least alarming signs of the system as now conducted, that the application of the law to a subject so delicate and so important as that of invention, is so largely left to a number of men of whom many will have no better guide in their attempted application of judicial doctrine than the letter of Law Reports, whose spirit they cannot grasp.
The necessary union of qualifications is not likely to be found in each one of more than a score of
many irresponsible judges, and unites too various functions in the same officers without due reference to the various capacity and knowledge required. The nature of the resulting mischief varies with the character of the officers, the tendency of whose errors will be in some cases to grant patents which should not be granted, in others to withhold them when they should be granted, and thus action will become regulated rather by personal character and whim, than by any fixed and clear principles.
This will all the more be the tendency because the powers which these officers separately exercise are of a nature requiring for their proper exercise a union of capacities and attainments not commonly found in one mind.
The questions of fact, and of mixed fact and law, stantly coming up for consideration, call both for scientific and practical, and for legal knowledge and judgment. It is in the latter branch that the examiners are most likely to be deficient, as their selection is supposed to be governed by their presumed knowledge in the various branches of the practical arts.
Legal reasoning is not to be expected from those not grounded in legal principles; and there is no branch of the law admitting of more refined and subtle distinctions, requiring a more delicate and skilful handling than that relating to patents. "Patents," said Judge Story, "are the very metaphysics
But even suppose that this end could be accomplished, still the present organization of the Office would be defective; for where there is not coaction there cannot be unanimity, and especially in regard to a subject where so much difference of opinion may arise among the most expert and intelligent minds.
But is the evil incapable of remedy or avoidance ? The nature of the remedy is indicated by the nature of the evil; but there may be those who will doubt the feasibility of applying the remedy. A return to the original constitution of the Office is of course impossible, but surely a return to original principles is not. If the duty of research, requiring time and diligence, were more completely separated than now rom that of judgment, which requires rather knowledge and tact, the result would be a more satisfactory performance of both duties. United in the same hands, the two duties
become a mutual embarrassment; they are diverse in nature, call for different kinds and degrees of mental capacities and attainments, and he who may most satisfactorily perform the one may be most unfitted for the other. For the labor of research, that which requires time and numbers, the present organization of the Office, with its very complete subdivisions, is perhaps as good as could be devised, and its efficiency would be greatly increased by the more complete separation of this class of labor from the other.
And as for what may be termed the judicial part of the duty, plainly it could be more speedily and satisfactorily performed by a few men acting in union, and having laid before them the evidence upon which they are to form their judgment, than it can possibly be by a much larger number of men acting independently and having with the duty of judging that also of looking up the evidence. The responsibility which attaches to judgment would in this way rest with a small body of men, selected for their capacity, acting in union, and not diverted from the efficient performance of their duties by labor which could as well be performed by another class of officers. Thus the practice of the Office would be more thorough, more efficient, and more uniform.
It is not our purpose to suggest the legislation which may be required, or the details of a mode, for working this desirable change. We
have simply undertaken to point out wherein the real evils of the organization as it now is, exist and have their origin, and the principles which it would seem should govern any endeavor to remedy and obviate such evils.
The perfect feasibility of carrying out these principles will hardly be disputed, but what legislation and what changes would best carry
them out, is a matter in which there may well be diversity of opinion.
We have only to add that the present accomplished head of the Office, from whom we have received valuable information, has every faith in the perfect feasibility and absolute necessity of carrying out these principles, and his opportunities of judging of the want of uniformity of action, together with his past able administration of the Office, point to him as the one most able to judge as to what legislation may be required to correct an evil which, if permitted to grow, must eventually undermine our Patent System.
BENEFITS OF AN EXAMINING
WHILE recognizing the defects in the present organization of the Patent Office, and the evils which have ensued from them, and which are likely to grow unless speedily checked, we are not of those who discover in the past history of the organization any such traces of inherent
mischief as serve to indicate impracticability in an examining system.
On the contrary we contend that the past administration of the examining system has been productive of good, entirely outweighing the evil.
We have adduced certain official figures which show that in the year 1870 to a little more than 19,000 applications made, the number rejected was nearly 5000.
Now supposing that but onethird even of these rejections were on proper grounds, or need have been acquiesced in by the applicant, what saving of time, and money, and labor, that might otherwise have been thrown away in fruitless enterprise or litigation, do more than fifteen hundred rightfully rejected cases in the course of one year represent ; what value in protection to the respectability and consequent value of patent property in general, is represented by the withholding in
of fifteen hundred patents, which, granted, would not have been worth the paper on which they were printed.
These are points which are apt to escape consideration, yet when brought to mind they are very suggestive.
Then turn to another effect of the examining system, defectively administered as it may be; we allude to what may be termed its advisory and restraining effect. It is the very clear interest of inventors to
claim all that they imagine themselves entitled to, and this is exceedingly likely to be more than in fact they are entitled to. Claims often include with that which is new, that also which is old, and either public property or the property of some prior patentee. No candid man, having experience in these matters, will deny that the administration of the examining system has worked almost incalculable good to applicants, to patentees, and to the public, in pointing out and checking these unwitting or deliberate intrusions upon public or appropriated ground, and indicating the real bounds of invention, This service has protected the interests of many a patentee, has thrown much needed light upon many an inventor's path, has tempered his too buoyant anticipations before they had led him into expenditures and enterprises, which blindly pursued, would have resulted in complications, loss, and bitter disappointment, and in every such saving to inventors is reflected a saving to the public.
And there is still another benefit necessarily proceeding from examination, a benefit of such importance that it might in itself be deemed an offset to many mischiefs. We refer to the necessity for clear and full specifications, and precise claims.
The scrutiny which, in examination, descriptions and claims undergo, must act as an effectual curb
upon carelessness, duplicity, and vagueness in their preparation. An applicant must, in his own interest, be frank and precise in his statements, and thus a general correctness is engendered, the importance of which to public and private interests cannot be overestimated. There cannot be in American patents that indefiniteness or vague generality of description and claim which is so conspicuous in many foreign patents, and which at once requires litigation to unravel, and renders litigation tedious, expensive, and unsatisfactory.
And who can estimate the value of the Patent Office records, under the examining system, in respect to the light which they serve to throw on the legal status and the commercial value of patents ? Upon every patent issued, the record of the application, of the rejections it may have met, the reasons for these rejections, the references given to prior inventions, forms a compact commentary, which, while at times it may only show how singularly at fault the official judgment has been, is yet calculated to be of invaluable service in aiding and guiding those who may desire to judge for themselves to what extent the value of a patent is affected by what has gone before.
Nor will it escape the notice of the impartial critic that the administration of the examining system, with all its imperfections and shortcomings, has done very much to
give to patents, as was intended, a higher legal and commercial status than they have in any other country. That is certain, which can be made certain, and every aid to arriving at certainty is of moment. How much of that all-important element, certainty, must be given to patent property by the means of arriving at it which the Office records furnish!
There can be no doubt that the moral weight, the weight of presumption which letters-patent here carry with them into the courts, and among that portion of the public who have any understanding of the Patent System, has done very much, not only to simplify and economize, but to cut off litigation by inspiring confidence on the side of right, and caution upon that of wrong.
Nor has this moral power as we may term it, of patent property,
decreased, as, if the administration of the examining system were on the whole a failure, it must have done, in proportion to the marvellous increase in the quantity of such property existing, although it has doubtless fluctuated with the apparent competence and honesty, or their opposites, in the ruling powers at the Patent Office.
The Patent Office is a very extensive institution, in which is collected a vast amount of material, rapidly augmented by constant accessions. This fact has led many to regard the organization as one which if