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not already cumbrous and unwieldy, must speedily become so, and alarming pictures have been given of the tremendous accretions of matter. It is asked how is it possible for men to conduct searches with speed and certainty amidst such records. Much has already been done to solve the question, by division of material and labor, by reducing the records to compact and accessible shape, and by elaborate classification, and no doubt experience will suggest further improvements in this direction. There is in truth no organization so large or complex, that a spirit of system and order cannot mould it into a simple and smoothly working unit. When the same correct principles have been applied to the arrangement of duties which have already worked such wonders in the arrangement of material, the Patent Office will become an example of efficiency and order and uniformity of action.
defects of the English Patent System, which have recently attracted great attention. The subject has been much discussed both in and out of Parliament, and committees of inquiry have had before them the testimony of many prominent men, whose position, in respect to the practical arts, or whose legal attainment entitle their opinions to great consideration.
The defects of the present English system are generally acknowledged, and seem to have divided those taking part in the discussion into two parties : 1. Those who would abolish patents altogether, and 2. Those who, favoring patents, yet perceiving the deficiency of the present laws, proposed a variety of remedial measures.
Of the former parties the number is not large, nor the reasoning such as to carry any weight with it.
Apart from the great cost of patents, the one great deficiency of the law, admitted on all sides, lies in the practically indiscriminate and uncontrolled issue of patents, which leaves bonâ fide inventors at the mercy, to a great extent, of unscrupulous pirates, and opens the door to patents for merely pretended inventions, or for absurd and impracticable schemes, and of patents with insufficient, vague, and deceitful specifications and claims. Still worse,—there is no check upon the repeated patenting of similar inventions, and the rights of patentees are left in a cloud of darkness which
THE EXAMINING SYSTEM AS
VIEWED FROM ABROAD.
WHILE upon the subject of an examining system it will not be out of place to see how it is regarded abroad, since the foreign views of the subject have been largely governed by observance or report of the effect of the system as administered in this country.
We have already had occasion to refer to some of the peculiarities and
litigation alone can break; this last evil being aggravated by insufficient means for trying patent causes.
The various remedies proposed agree in this,—that they all point to some mode of controlling the issue of patents, and the establishment of some special tribunal to deal with patent questions. As to the precise mode by which, and the time when, the ends aimed at should be attained, there seems to have been some difference of opinion.
Of course in a discussion of this kind our examining system did not escape attention, and its merits and defects, real or supposed, were freely canvassed.
It is worthy of note, however, that those who advocated the adoption in England of a system more or less analogous were men whose opinions were entitled to the greater weight, as they spoke from personal observation and experience.
Among these was Mr. Aston, a prominent barrister, who, after canvassing the defects of the English law, proceeds to suggest certain remedies; and speaking of them as being not merely speculative, but such as had been tried, thus remarks : “ Those to which I attach the most importance have been fully tried in the United States of America, and found to work well. I mean the exercise of discrimination in the grant of patents, and what is still more important, the deposit before a patent is granted of a precise description of the intention and
claims, given in a complete specification, which is submitted to a proper official examination before it is passed as sufficient. My own opinions upon the working of the American Patent Laws are founded upon a personal investigation of the system adopted in the United States, and from continued experience gathered in professional practice. My conviction is that the American system, though it has its imperfections, does work better than ours, and that because it has cured in a great meas--ure the defects under which our system is still laboring."
Mr. J. Howard, an inventor, manufacturer, and a Member of Parliament, while replying to the argument of those who would abolish patents altogether, remarked, that it appeared to him, that most of the arguments that had been urged did not touch the principles of a patent law, but went rather to the defects of the existing law and its administration. Mr. Howard took occasion to allude to the great and favorable impression which had been made on his mind by a visit to the United States Patent Office. He referred to the vital necessity for amendments in the English law, and expressed the hope that when the subject was taken in hand by the law officers of the Crown, they would provide the means for a bonâ fide examination of allo inventions before patents were granted; and also provide that the specification should be so clear that the public may know what really the
patent was granted for, and thus save preliminary examination, and they the ruinous cost of legal proceedings. are very much dissatisfied with it.
Lord Romilly, Master of the Rolls. The system of preliminary examinawhile among those inclined to the tion has been tried and found wantabolition of patents, on the theory ing. It is in operation in Prussia, that they had little to do with the but does not give satisfaction. It progress of art and civilization, sug- was tried in France, Austria, Sargested as a remedy for the present dinia, and Belgium, but being most inefficient state of the laws, “the ap- unsatisfactory, was abandoned in pointment of a special tribunal of each country. It is now going on, thoroughly efficient men, who should in America at an enormous expense, examine and pronounce upon all and the Chief Commissioner (?). applications for patents, and grant
wrote to me to say that it was a very them according as they might think inadequate system, and a very unthe invention new and useful ; or withhold them if the application
These remarks of Mr. Woodcroft's was for what was trivial, worthless, have been frequently quoted by opinjurious, or not new."!
ponents of the American examining Still another advocate for the system, and much greater imporadoption in England of an examin- tance has been attached abroad to ing system analogous to ours was the dictum of an ex-officer of our found in the person of Mr. Mundella, Patent Office, who is styled a Chief himself a manufacturer of wide re- Commissioner, than we should be pute, and who has been a visitor in willing to accord to it here in view this country.
of the overwhelming opinions of our Of course argument against the best authorities in favor of an exadoption of such a system was not amining system. wanting. Reference was made to re- But we find Mr. Woodcroft, at a marks proceeding, it would appear, more recent date, saying: some time ago, from Mr. Woodcroft, every man have his patent, but bethe accomplished Chief Clerk of the fore action is brought let the origiEnglish Patent Office, whose invalu
nality of the claim of the invention able services in superintending the be sifted by the most competent men publications of that office have gain- of the day,” a theory to which we ed him a well-earned repute. But Mr. shall have occasion to refer to hereWoodcroft's objections to an exam- after. ining system seem to have been That in Prussia the system should singularly unhappy in the supposed have been a failure, no one will wonfacts upon which they are based. der when he reads the testimony of
Said Mr. Woodcroft, “The Amer- Mr. Bessemer, who speaks from exicans pay about £23,000 a year for perience of the honesty and benevo
lence of the working of the Prussian system, in regard to foreigners at least. Mr. Bessemer says that he did not take out a patent for his invention in Prussia, and explains the reason thus : “He sent his paper to Prussia in the care of Mr. Krupp, who paid him £5000 for the use of his patent. He applied in due course for a patent, and was informed by the Prussian Patent Office that the invention was not
The Prussian Patent Office grant occasional patents; they take the fees and the drawings from British inventors in any case,
and afterwards publish them for the benefit of Prussia. The Office said that Mr. Nasmyth was the inventor of the process; Mr. Nasmyth said he was not. They next said they would give the name of the real man in a few days. Six weeks passed, and they said, “If we don't find the name of the real man tomorrow, we will give you a patent.” A week of these to-morrows passed, after which they showed an English blue-book with his own invention published in it, and they said, Your invention is published, so according to the law of Prussia we cannot grant you a patent. All the time they had been promising to grant it. The process is now worked very largely in Prussia.”
It is to be hoped indeed that this was an extreme case in the working of the Prussian system, but it is a well-known fact that that system is utterly arbitrary both as to end and
means, which is to say that it is necessarily and essentially a failure.
The example of Prussia, then, was a singularly unhappy and inapplicable argument against the adoption of a system of examination suited to a free country. As to the failure of ex
examining systems in France, Austria, Sardinia, and Belgium, in the absence of express information as to principles and details, the means adopted for carrying them out, or the extent of trial given them, it is not of course possible to examine into the causes of failure, but it would doubtless be found in the existence of some arbitrary features in either end or mode.
Returning to Mr. Woodcroft's theory, it will be seen that he is not opposed to an examining system, but to our system of examination in advance of the grant; he would grant any man a patent for anything, but before the patentee could exercise any rights against infringers of his patent, the latter must be submitted to the scrutiny of the most competent men of the day." If an examination is to be made, why should it not be in advance of the grant, so that the deed itself may be prima facie evidence of the patentee's rights ? Why should one branch of the government indiscriminately grant patents for another branch to scrutinize before the patentees can go into court, or can go before the public with any ascertained rights? Why postpone lock
ing the stable door till after the That the law does not authorize horse is out?
inquiry into the value of inventions, Curiously enough, ideas somewhat we have shown, and as to the insimilar to Mr. Woodcroft's have quiry into novelty, is not the exerprevailed, but to a very limited ex- cise of power in this respect sufficitent, in this country.
ently prevented, by the very nature It has been proposed to continue of the inquiry, by the rights of the an examining system, and if the applicant to full information as to Office refuses a patent to let the ap- any cause of rejection, and by his plicant take one on his own respon- right of appeal, from being impropsibility, the patent however to be erly and unjustly exercised ? accompanied with the taint of offi- What must have been the surcial refusal.
prise of those Englishmen who so Of what earthly use would such keenly appreciated the evils of their a patent be to the holder, who would patent system that they desired any be in a position analogous to that of mode of getting rid of it, even by the man who bases his ownership to the total abolition of patents, if no real estate on a deed either invalid other way could be devised, to find on its face, or bearing such a taint this article gravely arguing that that it is worthless ?
our patent laws should be assimArgument against the American ilated to the British ; that the Patsystem was also found in an article ent Office should here, as there, coming at secondhand from the simply register claims to have made columns of the New York Trib-inventions or discoveries in their une,” quoted in other papers, both order, and all questions thence arishere and abroad.
ing should be taken to the courts This was the article to which we and there settled." have had occasion to refer in an Such a proposition as this must earlier part of this treatise as show- have given rise to the thought that ing such an entire and singular
the American examining system misapprehension of the true prin- must be bad indeed, if it warrants ciples of our system. The article the presenting to American inanimadverts upon the dangerous ventors of this alternative as prefpower exercised by our officials in erable. pronouncing upon the novelty and The delightful results as they VALUE of inventions ;—“Power,”! have been experienced in England, says the article, “which the best of treating property in invention as functionaries might abuse through a bone to be carried off in triumph defect of information, or error in by the lucky winner among those judgment, which the worst certainly who choose to fight for it, may be will and do use most unrighteously.” gathered from the testimony of Mr.