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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.

CHAPTER IX.

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

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 bona 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

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 invention 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 measure the defects under which our system is still laboring."

Mr. J. Howard, an inventor, manufacturer, and a Member of Parlia ment, 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 bona fide examination of all 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 the ruinous cost of legal proceedings.

Lord Romilly, Master of the Rolls, while among those inclined to the abolition of patents, on the theory that they had little to do with the progress of art and civilization, suggested as a remedy for the present inefficient state of the laws, "the appointment of a special tribunal of thoroughly efficient men, who should examine and pronounce upon all applications for patents, and grant them according as they might think the invention new and useful; or withhold them if the application was for what was trivial, worthless, injurious, or not new."

Still another advocate for the adoption in England of an examining system analogous to ours was found in the person of Mr. Mundella, himself a manufacturer of wide repute, and who has been a visitor in this country.

Of course argument against the adoption of such a system was not wanting. Reference was made to remarks proceeding, it would appear, some time ago, from Mr. Woodcroft, the accomplished Chief Clerk of the English Patent Office, whose invaluable services in superintending the publications of that office have gained him a well-earned repute. But Mr. Woodcroft's objections to an examining system seem to have been singularly unhappy in the supposed facts upon which they are based.

Said Mr. Woodcroft, "The Americans pay about £23,000 a year for

preliminary examination, and they are very much dissatisfied with it. The system of preliminary examination has been tried and found wanting. It is in operation in Prussia, but does not give satisfaction. It was tried in France, Austria, Sardinia, and Belgium, but being most unsatisfactory, was abandoned in each country. It is now going on in America at an enormous expense, and the Chief Commissioner (?) wrote to me to say that it was a very inadequate system, and a very unfair one.

These remarks of Mr. Woodcroft's have been frequently quoted by opponents of the American examining system, and much greater importance has been attached abroad to the dictum of an ex-officer of our Patent Office, who is styled a Chief Commissioner, than we should be willing to accord to it here in view of the overwhelming opinions of our best authorities in favor of an examining system.

But we find Mr. Woodcroft, at a more recent date, saying: "Let every man have his patent, but before action is brought let the originality of the claim of the invention be sifted by the most competent men of the day," a theory to which we shall have occasion to refer to hereafter.

That in Prussia the system should have been a failure, no one will wonder when he reads the testimony of Mr. Bessemer, who speaks from experience of the honesty and benevo

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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 new. 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 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 horse is out?

Curiously enough, ideas somewhat

similar to Mr. Woodcroft's have prevailed, but to a very limited extent, in this country.

It has been proposed to continue an examining system, and if the Office refuses a patent to let the applicant take one on his own responsibility, the patent however to be accompanied with the taint of official refusal.

Of what earthly use would such a patent be to the holder, who would be in a position analogous to that of the man who bases his ownership to real estate on a deed either invalid on its face, or bearing such a taint that it is worthless?

Argument against the American system was also found in an article coming at secondhand from the columns of the New York Tribune," quoted in other papers, both here and abroad.

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This was the article to which we have had occasion to refer in an earlier part of this treatise as showing such an entire and singular misapprehension of the true principles of our system. The article animadverts upon the dangerous power exercised by our officials in pronouncing upon the novelty and VALUE of inventions;-"Power, " says the article, "which the best functionaries might abuse through defect of information, or error in judgment, which the worst certainly will and do use most unrighteously."

That the law does not authorize inquiry into the value of inventions, we have shown, and as to the inquiry into novelty, is not the exercise of power in this respect sufficiently prevented, by the very nature of the inquiry, by the rights of the applicant to full information as to any cause of rejection, and by his right of appeal, from being improperly and unjustly exercised?

What must have been the surprise of those Englishmen who so keenly appreciated the evils of their patent system that they desired any mode of getting rid of it, even by the total abolition of patents, if no other way could be devised, to find this article gravely arguing that

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our patent laws should be assim ilated to the British; that the Pat ent Office should here, as there, simply register claims to have made inventions or discoveries in their order, and all questions thence arising should be taken to the courts and there settled."

Such a proposition as this must have given rise to the thought that the American examining system must be bad indeed, if it warrants the presenting to American inventors of this alternative as preferable.

The delightful results as they have been experienced in England, of treating property in invention as a bone to be carried off in triumph by the lucky winner among those who choose to fight for it, may be gathered from the testimony of Mr.

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