THE PATENT SYSTEM OF THE UNITED STATES SO FAR AS
IT RELATES TO THE GRANTING OF PATENTS
A HISTORY
BY LEVIN H. CAMPBELL,
Assistant Examiner in the United States Patent Office.
"The invention all admired, and each how he
To be the inventor missed; so easy it seemed,
Once found, which yet unfound,
most would have thought impossible.
"
--Milton.
ILLUSTRATED.
WASHINGTON, D, C.:
PRESS OF McGILL AND WALLACE.
1891.
Entered according to Act of Congress, in the year 1891, by
LEVIN H. CAMPBELL,
In the Office of the Librarian of Congress, at Washington, D.
C.
INTRODUCTORY.
It is the object of this little book to give a history of the
United States Patent System so far as it relates to the issuing
of patents. Several fragmentary accounts of the United States
Patent Office have been written; but so far as can be learned, no
extended and connected history of the origin and development of
that part of the patent system relating to the granting of
patents has ever been written.
The greater portion of the matter contained in chapters II, III,
IV, and V has never appeared in popular print, and was only
obtained after a long and of necessity frequently interrupted
search extending over a year or more and covering both papers and
books published by authority of Congress and private publications
contemporaneous with. the periods embraced in these chapters.
Thc chapter on the early English system is designed to open the
way to a proper understanding of the beginning of the American
system, and of many of its principles.
It will be observed that many of the legislative enactments were
simply to put into statute law practices which had been
introduced by the Patent Office.
United States Patent System.
CHAPTER I.
THE EARLY ENGLISH PATENT SYSTEM.
The idea and practice of granting letters patent for inventions
had their origin in England, and they have since been adopted and
copied, more or less closely, by every civilized power. Singular
as it may appear, the idea, if not the practice itself, had its
foundation in the practice of granting monopolies by the Crown.
The prerogative to make these grants was vested in the sovereign,
as the sole depositary of the supreme executive power of the
State, to be exercised in the behalf and for the benefit of the
public. In these grants the persons named therein were allowed
the sole buying, making, and selling of certain things in common
use specified therein, and the public restrained of this freedom
and hindered in their lawful trade. It is impossible to ascertain
with certainty when such grants were enlarged to include the sole
use of inventions. It is, however, quite clear that the
prerogative of the Crown to make such grants is not a statutory
one, but was derived from the custom of granting monopolies, and
was acknowledged at Common Law. In a case decided in the reign of
Edward III. it is reported, "That arts and sciences which
are for the public good are greatly favored in law, and the King,
as chief guardian of the common weal, has power and authority by
his prerogative to grant many privileges for the sake of the
public good, although prima facie they appear to be clearly
against common right." But the most remarkable and leading
case is that of Darcy v. Allien (sic), tried in the 44th year of
the reign of Elizabeth (1602), for the sole making of playing
cards within the realm and for the sole importation of foreign
cards. The patent was set aside on the ground that card making
was not new, but that it was a known trade. In several subsequent
cases, in which the patents were adjudged to be valid, the
questions involved were, said the courts, whether the inventions
were newly invented by the patentee or were used before, in which
latter event the courts were of opinion that the patents were
void. It appears from these decisions that at common law novelty
of the subject-matter was necessary to sustain a patent, and in
this respect it differed essentially and radically from the grant
of a monopoly in trade, which was illegal and void. But
notwithstanding the fact that this clear distinction was made by
the courts, it was ignored by the Crown, which continued to grant
monopolies at its royal pleasure. To put a stop to this abuse of
the kingly prerogative, the Statute of Monopolies was passed in
the reign of James I., A. D. 1623. It declared void all
monopolies granted and which should be granted, and defined the
prerogative to be to grant letters patent only for "The sole
working or making of any manner of new manufactures within the
realm to the true and first inventor." The statute was early
construed by the courts to include introducers also, of new
inventions from abroad. It created no rights which had not
existed and been recognized before its passage. The statute
simply declared and determined, without any probability of future
misapprehension or abuse, what the King's prerogative in the
matter was. It contains no clause by which the subject could
demand a patent as a right. The Crown, as the Patron of Arts and
Sciences, still caused a patent to be issued as a royal favor on
the prayer of its subject. No examination as to the patentability
of the invention was made, and the only remedy the patentee and
the public had against illegal patents was by suit at law in the
name of the sovereign. A few years after the passage of the
statute a proclamation was issued abolishing "all patents
for new inventions not put in practice from the date of their
respective grants." This edict, long since obsolete, is
given as being of interest only when taken in connection with a
provision of like purport in the grants of patents by the
American Colonies and States and in the patent laws to-day of
several foreign countries.
The object aimed at in the granting of patents was to secure a
reward to the inventor, and at the same time obtain the invention
for the free use of the public after the patent had expired. To
carry out the latter part of this design, the early patents
contained a clause requiring the inventor "To take
apprentices and teach them the knowledge and mystery of the said
new inventions,"a practice which, as Lord Coke suggests, led
to the adoption of fourteen years as the term of a patent,
"that others might by seven years apprenticeship and seven
years practice acquire the invention." But it was found that
the public could not rely on this method for a full and complete
understanding and acquisition of the inventions, because the
patentee might not perform his part of the agreement. So, in the
reign of Queen Anne, the law officers of the Crown introduced
another and different clause, requiring a written description of
the invention, under the hand and seal of the patentee, to be
filed in the Court of Chancery, from whence all patents were
issued. This description was termed the Specification.
Prior to this time the only description of record of the
invention secured by a patent consisted of a few words giving
merely the name of it. The first patent in which a specification
was required appears to be that to one John Nasmyth, 1st April,
1712.
It is not certain at what period drawings began to be annexed to
the specification. They were not absolutely necessary, but were
early and very generally adopted as an easy way of illustrating
the device and of aiding the description. In an act of 1719,
George II., confirming a patent to one Lombe, is a proviso,
"that His Majesty may appoint twelve persons to take a
perfect and exact model of said three engines to secure and
perpetuate the art of making like engines for the advantage of
the Kingdom." The patent system attracted very little notice
until near the end of the eighteenth century; from 1680 to 1780
only some eight hundred patents had been granted. But at this
time England was just beginning her wonderful commercial and
industrial career, and Arkwright, Hargreaves, Crompton, and Watt
had patented their inventions. Their patents became immensely
valuable and were the subjects of fierce and prolonged contests
in the courts, which ended in a series of adjudications,
beginning with Arkwright's case, and in thc course of which many
of the fundamental principles of patent law and practice were
discussed, elucidated, and settled. The cases are to-day looked
to for aid and cited as leading authorities on the points decided
in them. And all this was before the enactment of a patent law by
Congress.
CHAPTER II
COLONIAL AND STATE PATENTS FOR INVENTIONS.
In October, 1634, the General Court of Massachusetts Bay Colony
initiated the practice in America of granting patents by an act
securing to one Samuel Winslow an exclusive privilege for a
method of manufacturing salt, and prohibiting all other persons
from making this article for ten years, except in a manner
different from his, provided he set up works within one year from
the date of the grant. This act is memorable, because it is the
FIRST grant of an exclusive privilege in inventions passed in
America, and the privilege was the first to be given under and by
virtue of the sovereign will of the people and not at the royal
pleasure of a king. The proviso is evidently borrowed from the
English proclamation which declared void all patents for
inventions not worked in the kingdom within one year after the
date of their issue. In 1652 the Colony allowed one John Clark
ten shillings for three years from every family which should use
his invention for saving wood and warming houses at little cost.
In 1655 a patent was granted to Joseph Jencks, sen., for an
"engine for the more speedy cutting of grass." From
time to time thereafter other grants were made and premiums
offered to encourage domestic industries. Connecticut, of all the
colonies, though not founded until a quarter of a century after
the landing of the first English colonists at Jamestown, appears
to have been the most far-sighted and liberal in the number of
its grants for the promotion of the useful arts. Beginning with
an act in 1663 for the encouragement of mining, many acts were
passed in the course of time covering nearly all of the
industries practiced in the colony. In its statutes of 1672 is
printed "that there shall be no monopolies granted or
allowed but of such new inventions as shall be deemed profitable
for the country, and for such time as the general court shall
judge meet." In the provincial records of Pennsylvania is
found an entry, allowing one Thomas Masters to record and publish
in the province two patents which had been granted to him in
England for that Kingdom and "the several plantations in
America.þ
No grants of patents appear to have been made by any of the
others of the original thirteen Colonies. There was, however, an
application made to the Governor of New York in 1693, "for
aid to perfect all invention to increase the speed of
vessels;" but no record of the disposition made of it is
found.
On July 4, 1776, the delegates from the original thirteen
Colonies in Congress assembled declared the separation of the
Colonies from England, and the assumption by each of them of
sovereign powers as" free and independent States."
Eight days later "Articles of Confederationþ were agreed
upon; and under them the Federal Government of the States
continued until March 4, 1789. There was no clause in the
"Articles" giving to Congress the power to grant
patents, and in the meantime the individual States granted
patents just as their predecessors, the Colonies, had done.
Maryland granted to James Rumsey "the exclusive privilege
and benefit of making and selling new invented boats ;" to
Oliver Evans the right of making and selling "two machines
for the use of merchant mills," and "one other machine
denominated a steam carriage." In these grants, were
included penalties for infringements to be recovered with costs,
provided the grantee "shall not be proven not to be the
original inventor."
New York granted John Fitch the sole right af making and
employing, for a limited time, the steamboat by him lately
invented. He and Evans also obtained grants for their inventions
in nearly all of the other States.
A detailed enumeration of the grants of patents by the Colonies
and States has not been attempted. From those given a correct
idea, although it be a general one, may be obtained of how the
policy of allowing patent privileges was regarded during this
period, and of the facility of obtaining them. They were based on
petitions to the Assemblies of the Colonies or States, as the
case might be. The petition contained the title and a brief
description of the invention, and was accompanied by a model or
drawing, and it was referred to a committee appointed for the
purpose. The committee conferred with the inventor, examined his
invention, and reported favorably or adversely, and a patent was
granted for such term of years as the comparative importance of
the invention merited.
CHAPTER III.
OF THE POWER IN THE CONSTITUTION TO GRANT PATENTS.
In May, 1787, the Federal Convention began its work of drafting a
Constitution for the United States, and by July the Constitution
had been practically agreed upon. On July 26 all the proceedings
of the Convention up to that time were referred to a Committee of
Detail to prepare and report the Constitution. On August 6 the
report was delivered; but it contained no power to Congress to
grant patents. On August 18, nearly three months after the
Convention had been in session, and within a month of its
adjournment, Mr. James Madison, of Virginia, arose in his place,
and "submitted, in order to be referred to the Committee of
Detail, certain powers, as proper to be added to those of the
General Legislature." Among these powers were two -- one,
"to secure to literary authors their copyright for a limited
time," and the other, "to encourage, by premiums and
provisions, the advancement of useful knowledge and
discoveries."
[Apparently James Madison]
On the same day, Mr. Charles Pinckney, of South Carolina, also
submitted a number of propositions, among which were two -- one,
"to grant patents for useful, inventions, and the other,
"to secure to authors exclusive rights for a certain
time."
The propositions of both these gentlemen were referred to the
Committee.
On August 31 such parts of the Constitution as had not been acted
upon were referred to a committee composed of one member from
each State; and among these uudisposed of parts were the
propositions to give to Congress tile power to grant patents for
inventions. Mr. Madison, but not Mr. Pinckney, was of this
committee. On September 5 the eommittee reported and recommended,
among other things, that Congress have the power "to promote
the progress of science and udeful arts, by securing for limited
times to authors and inventors the exclusive right to their
respective writings and discoveries." This was agreed to
without a dissenting vote, and in the final revision of the style
and arrangement of the articles in the Constitution became
paragraph 8, section 8, of article I.
It is seen that the distinction of submitting the proposals to
give this power to Congress rests jointly with Mr. Madison and
Mr. Charles Pinckney. Both were young men, the former being
thirty-six and the latter twenty-nine. They were prominent in the
proceedings of the Convention, and were men of marked ability.
Neither of them appears, however, to have had any special
knowledge or concern in science or the useful arts, They
doubtless were prompted to submit their respective proposals
because of the precedent set for such a policy by England, the
Colonies, and the States. The only novelty involved in the
propositions was giving the power to Congress, and this was
easily justified, because the members of the Convention knew of
the insufficient benefits to the public at large and of the
inadequate, capricious, and conflicting security afforded a
patentee by grants from the separate States.
Mr. Madison, in a paper in the "Federalist," wrote of
this power as follows: "The utility of this power will
scarcely be questioned. The copyright of authors has been
solemnly adjudged in Great Britain to be a right at common law.
The right to useful inventions seems with equal reason to belong
to the inventors. The public good fullest coincides in both cases
with the claims of individuals. The States cannot separately make
effectual provision for either of the cases, and most of them
have anticipated the decision of this point by laws passed at the
instance of Congress."
The power is limited to granting patents to authors and
inventors, and does not include introducers who are not the
authors and inventors.
Some few years after the adoption of the Constitution the
question, Has a State the right, under the Constitution, to grant
patents? arose in the trial of a case in New York. The court
decided that a State has the right. The case was appealed to the
Supreme Court of the United States; but it was there determined
on a different point and the question left open. Whatever may be
the correct answer, the States have ceased to grant patents.
CHAPTER IV
THE FIRST PATENT LEGISLATION
The first session of the First Congress, under the
Constitution, began March 4, 1789, but no legislative business
was done until April 1st. Fourteen days later, David Ramsey and
John Churchman each filed a petition in the House of
Representatives, praying that a law might pass for securing to
him an exclusive right for his writings. These petitions were
referred to a committee specially appointed for the purpose.
This was the very first step taken in patent legislation in this
country under the Constitution. The committee reported
favorably, but on motion the House ordered that a committee be
appointed to bring in a bill, making a general provision for
securing to authors and inventors the exclusive right to their
respective discoveries. Accordingly, on June 23d, a bill for
such a purpose was reported, but through want of time for its
consideration, the measure failed to become a law. These
proceedings are given because in them is first found the idea of
a general law instead of a special act, passed in each individual
case, to secure patent rights.
The Law of 1790
The second session began January 4, 1790. A committee was
appointed to examine the Journal of the last session, to report
therefrom all business as was then depending and undetermined.
Before this committee made its report, President Washington
addressed Congress. In the course of this address he said, "I
cannot forbear intimating to you the expediency of giving
effectual encouragement as well to the introduction of new and
useful inventions from abroad as to the exertions of skill and
genius in producing them at home." Three days later the
committee reported that "it appears that there was postponed for
further consideration until this session 'A bill to promote the
progress of science and the useful arts.'" On January 25th a
committee was appointed "to prepare and bring in a bill making a
general provision for securing to authors and inventors the
exclusive right to their respective writings and discoveries; and
that Edanus Burke of South Carolina, Benjamin Huntington of
Connecticut, and Lambert Cadwallader of New Jersey, do prepare
and bring in the same." On February 16th Mr. Burke presented a
bill, which, after having been amended both in the House and
Senate, was passed, and signed by the President, April 10th.
Whether this act, as first reported, or as passed, was the same
as the bill reported in the first session will never be known for
all the records were burned by the British in 1814.
The Act provided that upon the petition of any person to the
Secretary of State, the Secretary of War, and the Attorney-
General, setting forth that he had invented any useful art,
manufacture, engine, machine, or device, or any improvement
therein not before known or used, these three officials, or any
two of them, if they deemed the invention sufficiently useful and
important, might cause a patent to be made out in the name of the
United States, to bear teste by the President, reciting the
allegations of the petition, and describing the invention, and
thereupon granting to the petitioner, his heirs, administrators
and assigns, for any term not exceeding fourteen years, the sole
and exclusive right and liberty of making, constructing, using,
and vending to others to be used, the invention; that the patent
should be delivered to the Attorney-General to be examined, who,
if he should find it conformable to the law, should certify it to
be so at the foot thereof, and present the patent so certified to
the President, who should cause the seal of the Untied States to
be thereto affixed; that the patent should be recorded in a book
to be kept for that purpose in the office of the Secretary of
State, and that the delivery of the patent should be entered on
the record, and endorsed on the patent by the Secretary at the
time of granting it. It further provided that the patentee
should, at the time the patent was granted, deliver to the
Secretary of State a written description, accompanied with drafts
or models of the thing patented, and which description should be
so particular, and the models so exact, as not only to
distinguish the invention from other things before known or used,
but also to enable a person skilled in the art to make and use
it, and which description should be filed in the office of the
Secretary. And it further enacted that upon the application of
any person to the Secretary of State for a copy of such
description, and for permission to have a similar model made, it
should be the duty of the Secretary to give such copy and to
permit the person to make a similar model, at the person's own
expense.
The description and drawings were not annexed to the patent,
and it contained no recital that they formed a part of it. There
was no appeal from refusal to cause a patent to be made out. The
practice seems to have been for the petitioner to accompany his
petition with a description and model of the invention, and the
papers were examined by these three officials, and if found
defective in any respect the petitioner was required to amend
them. It is a matter of tradition that when a petition was
presented, Mr. Jefferson, who was Secretary of State, would send
for Mr. Knox, Secretary of War, and Mr. Randolph, Attorney-
General, and that the three distinguished officials would inquire
with grave deliberation and interest into the utility and
importance of the invention. In a letter written by Mr.
Jefferson he stated that the "patent board" early established
several rules and that among them were: 1st, that a patent would
not be granted for a machine in a double use; 2d, nor for a
simple change of material; 3d, nor of form. The office fees were
paid to the clerk employed in the State Department who made out
the patent, and amounted to three dollars and seventh cents, to
which were added ten cents for every hundred words for filing the
specification. The work of issuing the patent was performed by
the Chief Clerk of the Department, and the fees therefrom were a
part of his salary. Henry Remsen, Jr., was the first clerk to
receive these fees, he having been appointed Chief Clerk on July
25, 1790, and the first patent having been issued on the 31st of
July in the same year. He was succeeded on April 1, 1792, by
George Taylor, Jr., and he, in turn on February 18, 1798, by
Jacob Wagner. Taylor had the fees for a short time only, and
Wagner not at all, for the law was repealed in 1793. Under the
law of 1790, there was no "Patent Office," and not even a
"Division of Patents," in the Department. The first patent
issued was to Samuel Hopkins, July 31, 1790, for "Making Pot and
Pearl Ashes." It was signed by George Washington, President;
Thomas Jefferson, Secretary of State; and Edmund Randolph,
Attorney General. In 1884 the Secretary of the Interior
recommended that Congress buy this ancient document, but without
effect. It ought to have been purchased because it is of
historical interest as being the first in the longest list in the
world of patents for inventions. There were three patents issued
in 1790, and the whole number issued under the act was fifty-
five.
CHAPTER V
THE LAW OF 1793
A number of inventors and others interested in the granting
of patents were dissatisfied with the act of 1790. At the very
next session (there were three sessions) of this Congress, on
December 9, 1790, a committee was appointed to bring in a bill to
amend the act. Accordingly a bill was reported, but
consideration of it was postponed from day to day until the
session closed. The opponents of the act were determined,
however, and at the first session of the next Congress, in 1791,
a petition of James Rumsey was read, praying that the act of 1790
"be amended and rendered more effectual for securing to original
inventors property in their respective discoveries." At this
same session a petition of another inventor was presented,
praying that a reasonable time might be granted him "to finish
the exhibit of a machine which he is now constructing for
cleansing and whitening rice." This petition seems to have
contained the first idea of the Caveat in the American
system.
In accordance with Rumsey's petition a committee was
appointed to bring in a bill, and accordingly did so, but the
session expired and left the measure unacted on. The second
session of this Congress began November 5, 1792, and Rumsey
immediately renewed his petition. A committee was appointed, and
they reported a bill. Its first section provided that the
petition for a patent should be addressed to the "Director of the
Mint." A motion was made that a clause providing for the
appointment of an officer to be denominated the "Director of
Patents" be substituted for the words "Director of the Mint." It
was lost through fear of the members that the clause would
necessitate another officer and salary. It was then moved that
the Federal judges in the District Courts be substituted for
"Director of the Mint." This motion was sought to be supported
on the grounds of affording greater facilities to inventors, who
would then not have to go or send their applications to
Washington city, but could file them with the judge in whose
district the applicant might reside or be. Finally it was agreed
to substitute "Secretary of State," because, as one member said,
the Secretary under the bill had no authority to examine the
merits of the inventions, and no harm in this respect could be
done. It is an interesting fact that thus early in patent
legislation the appointment of a "Director [Commissioner] of
Patents" was proposed, and that the act of 1790 -- distinctly
American -- was not repealed without a long and persistent
effort. The bill became a law February 21, 1793. It was as
plainly English in its principles and practice as its predecessor
was distinctly American. In the debate on the bill it was said
"it was an imitation of the patent system of Great Britain; that
the provisions were such as would circumscribe the duties of the
deciding officer within very narrow limits."
Mr. Jefferson said of the act, "Instead of refusing a patent
in the first instance, as the board was formerly authorized to
do, the patent now issues of course, subject to be declared void
on such principles as should be established by the courts of law.
This business, however, is little analogous to their course of
reading; and a previous refusal of a patent would better guard
our citizens against harassment by law suits. But England had
given it to her judges, and the usual predominancy of her example
carried it to ours." The act provided that when any person,
being a citizen of the United States, should allege that he has
"invented any new and useful art, machine, manufacture, or
composition of matter, or any new and useful improvement"
thereof, not known or used before the application, and should
present a petition to the Secretary of State, praying that a
patent may be granted therefor, it should be lawful for the
Secretary to cause a patent to be made out in the name of the
Untied States bearing teste by the President, reciting the
allegations of the petition, and giving a short history of the
invention, and thereupon granting to the petitioner, his heirs,
administrators, or assigns, for a term not exceeding fourteen
years, the exclusive right of making, constructing, using, and
vending to others to be used, the invention, which patent should
be delivered to the Attorney-General to be examined; who, if he
finds the patent conformable to the law, should certify
accordingly, at the foot thereof, and return the same to the
Secretary, who should present the patent to the President to
sign, and should cause the seal of the United States to be
affixed thereto, and that the patent should be recorded in a book
in the office of the Secretary. It further provided that the
patentee of an improvement should not be at liberty to make, use,
or bend the original invention, nor should the first inventor be
at liberty to use the improvement; and that simply changing the
form or the proportion of a machine, or composition of matter, in
any degree, should not be deemed an invention. It further
enacted that every inventor, before he could receive a patent,
should swear that he does verily believe that he is the true
inventor of the art or thing for which he solicits a patent, and
should deliver a description of his invention, and of the manner
of using or process of compounding the same, in such full, clear,
and exact terms, as to distinguish the same from all other things
before known, and to enable any person skilled in the art of
which it is a branch, or with which it is most nearly connected,
to make, compound, and use the invention. And in the case of a
machine, he should fully explain the principle, and the several
modes in which he has contemplated the application of the
principle; and he should accompany the whole with drawings and
written references, where the nature of the case admits of
drawings, or specimens of ingredients and of the composition;
which description, signed by himself and attested by two
witnesses, should be filed in the office of the Secretary of
State; and that the inventor should deliver a model of his
invention, should the Secretary deem a model necessary. It also
provided that it should be lawful for an inventor, his executor
or administrator, to assign the title and interest in the
invention, at any time, and the assignee, having recorded the
assignment in the office of the Secretary of State, should
thereafter stand in the place of the inventor, and so the
assignees or the assigns, to any degree. It also made provision
for the disposal of interfering applications, by enacting that
they should be submitted to three arbitrators, one chosen by each
person and one by the Secretary of State, and that their award
should be final, as far as respects the granting of the patent;
and if either of the applicants should refuse or fail to appoint
an arbitrator, the patent should issue to the opposite party.
And where there should be more than two interfering applications,
and the parties thereto should not all unite in selecting three
arbitrators, the Secretary of State should appoint the
arbitrators. It further enacted that every inventor, before
presenting his petition, should pay into the treasury of the
Untied States thirty dollars, for which he should take duplicate
receipts; one of which receipts he should deliver to the
Secretary of State when presenting the petition, and the money
should be in full for all the services performed in issuing the
patent, and should pass to the account of clerk-hire in the
office of the Secretary; provided, nevertheless, that for every
copy of any paper respecting any patent the person obtaining the
copy should pay, at the rate of twenty cents for every copy sheet
of one hundred words, and for every copy of a drawing two
dollars, of which payments an account should be rendered annually
to the Treasurer, and they should also pass to the account of
clerk-hire in the office of the Secretary of State. Though this
act, like that of 1790, required a petition to be presented, and
the patent to recite the "allegations of the petition," it seems
that the petition alone seldom contained anything beyond the mere
title of the invention, indicating its object and nature. But
the description being filed at the same time and often on the
same paper, seems to have been regarded as a part of the
petition; and to comply with the law, by inserting in the patent
the "allegations in the petition," and a "short description of
the invention," and avoid mistakes as to the extent of the
inventor's claim, the officers annexed to the patent the whole
description of the invention, usually in the applicant's own
writing, and by express reference in the patent referred to it as
forming a part of the patent. Every application for a patent
consisted of the petition, the description, the oath, and the
drawing. The petition was addressed to the Secretary of State,
and gave the name, citizenship, and residence of the petitioner
and title of the invention, and was signed by the petitioner.
The specification contained a description of the invention, and
in some instances a claim of what the inventor regarded as his
own invention. As early as 1807, a few patentees closed the
descriptions by a summary of the alleged benefits and advantages
of their inventions, and from 1812 it became no infrequent to
close the description by a separate paragraph pointing out the
part or parts which the applicant believed to be his invention.
In a circular of information respecting the manner of taking out
patents, etc., distributed by the Patent Office in 1828,
applicants are advised to distinctly set forth what they claim as
new, and that this would be best done in a separate paragraph at
the end of the description, and in a form suggested in the
circular. The oath recited that the applicant verily believe
himself to be the first and original inventor, and that he was a
citizen of the United States.
By an act approved April 17, 1800, the right to apply for a
patent for an invention of a deceased invention was extended to
his legal representative; and by the same act, aliens, who at the
time of application had resided two years in the United States,
were permitted to apply, provided they should make oath before
the patent issued that their invention had not, to the best of
their knowledge or belief, been known or used either in this or
any foreign country, and by the act of July 13, 1832, the right
as to aliens was further enlarged to include resident aliens who
had declared their intentions to become citizens. In these cases
the oath was changed in so far as to conform to the facts
necessary to be recited in each particular case.
The drawing was usually described in the specification, and
references were made thereto throughout the description.
Whenever this was done, two copies of the drawings had to be
furnished, one of which was attached to the patent and the other
retained in the Patent Office. If there was only one copy of a
drawing furnished, it was retained in the office and the patent
issued without any drawing annexed to it. Those applicants who
desired to have their patents issued without delay furnished two
complete sets of application papers; one copy of the
specification being on heavy paper or parchment, suitable to be
attached to the patent. No provision for a caveat was made in
the law, but it was the practice of the office to preserve in
confidence such descriptions of inventions as were forwarded for
the purpose, and to inform the inventor should a similar
application be filed. He then could present his petition and be
put into interference with the conflicting applicant.
By a resolution of Congress in 1805 the Secretary of State
was required to report to it in January, annually, a list of all
patents granted the preceding year, and the names and residences
of the patentees.
In July, 1800, the Department of State removed from
Philadelphia to Washington. The records, etc., of the Department
were landed on Lears Wharf, at the foot of G street. There was
no building immediately ready to receive them, but in August, the
Department found a home in what were locally known as the "Seven
Buildings," at Pennsylvania avenue and Twenty-first street.
These buildings are still standing.
In May, 1802, President Jefferson appointed William Thornton
as a clerk, at $1,400 per year, to have charge of the issuing of
patents. He was of English parentage and was born in the Island
of Tortola. He was graduated in medicine in Edinburgh; travelled
extensively in Europe, and, just after his coming of age, came to
reside in Philadelphia. Here he made the acquaintance of
Washington, who, under the act to establish the seat of the
Government, appointed him to the Board of Commissioners in the
City of Washington. This board finished its work and was
abolished May 1, 1802. Thornton was well educated, and his
abilities were of the first order. It was at his suggestion that
the first agricultural fair in this country was held, in
Washington, in 1804. There is told of him the following anecdote
illustrative of his bravery and decision of character: At the
capture of Washington City in 1814 by the British, an officer had
ordered a squad of soldiers to train a cannon on the building in
which was the Patent Office. At that moment Thornton rode up,
rapidly dismounted, and threw himself before the gun. With
flashing eyes, he demanded, "Are you Englishmen, or only Goths
and Vandals? This is the Patent Office, the depository of the
inventive genius of America, in which the whole civilized world
is concerned. Would you destroy it? If so, fire away and let
the charge pass through my body." The officer bowed his head
with shame and ordered the soldiers away. In 1821 Thornton
assumed the title of "Superintendent," and he is so registered in
the Government Blue Book, but it was not until 1830 that the law
recognized the title by specifically mentioning the office in
making an appropriation to pay salaries in the Department of
State.
In a report made by a committee in 1823, appointed by the
House of Representatives to examine the state and condition of
the Office, Congress was recommended to provide for "an artist"
to repair and have charge of the models. A few years later
provision was made in an appropriation act for a machinist.
In 1810 Congress authorized "the purchase of a building for
the accommodation of the general post-office, and of the office
of the keeper of the patents." The building purchased was known
as Blodgett's Hotel, and stood on the site now occupied by the
south front of the General Post-Office Department. Into the east
end of this building Thornton moved the records, models, etc., of
the office.
During many years of his superintendency he freely exercised
much discretionary power in the issuing of patents, and
ordinarily when a mistake occurred in issuing a patent, whether
by the patentee or the office, he would, on request, within a
reasonable time after its issue, make out a new patent without a
new fee for the same invention for the unexpired term of the
original patent. The legality of his acts in this matter was
confirmed from time to time in several opinions of the Attorney-
General, but not tested in the courts until the case of Grant v.
Raymond (Supreme Court U.S., 1832), in which case it was upheld.
In a communication to the Secretary of State, under date of
January 6, 1818, Thornton defined the equities and limitations of
a reissue as concisely and luminously as has ever been done by
any court or text writer. About 1823-4, the Attorney-General was
of opinion that a new patent made out on account of a faulty
specification, except for clerical errors on the part of the
office, must be charged a new fee. Out of this practice of
Thornton's grew the act of July 3, 1832, providing for the
reissue of a defective patent.
This act also required the Secretary of State to report to
Congress in January, annually, and to publish in two of the
newspapers printed in Washington City a list of all patents which
shall have expired within the year immediately proceeding, with
the names of the patentees. It further enacted that application
to Congress to prolong or renew the term of a patent should be
made before its expiration, and should be published at least once
a month for three months before its presentation, in two
newspapers in Washington City, and in one of the newspapers in
which the laws of the United States should be published in the
State in which the patentee should reside; that the petition
should set forth particularly the grounds of the application and
be verified by oath, and should be accompanied by a statement of
the ascertained value of the invention and of the receipts and
expenditures of the patentee, so as to exhibit the profit or loss
arising therefrom. Prior to this statute the only mode of
prolonging the term of a patent beyond the original grant was by
means of private acts of Congress upon individual
applications.
On the death of Thornton, in 1828, Thomas P. Jones succeeded
to the superintendency, and John D. Craig, shortly after,
followed him. Craig was the first to make an orderly and
systematic classification and arrangement of the models and
drawings, corresponding to the nature of the subject to which
they belonged. The model room was on the second floor and
contained fourteen classifications of models. He was succeeded
in 1834 by B.F. Pickett, who remained only a short while. In
1835 Henry L. Ellsworth, of Connecticut, became Superintendent.
The organization of the office then consisted of the
Superintendent, at $1,500 a year; two clerks, at $1,000 each, and
one at $800; a machinist at $700; and a messenger at $400.
In 1793 ten patents were issued; and the receipts of the
Office were $660, and in 1800, the year it was removed to
Washington, $1,230. The number of patents issued in 1801, the
first whole year the office was in Washington, was forty-four.
From 1793 to 1802 the money received by the Office was covered
into the Treasury as clerk-hire for the Department of State;
consequently it does not appear that any payment for salaries of
Superintendent, clerk, and messenger were made out of the Office
receipts during these years; but in 1803 the revenues were kept
separately in the Treasury, and the receipts were $2,910, and the
expenditures on account of salaries paid by the Office were
$1,750. The records of the payments on account of contingent
expenses from 1793 to 1813 were burned by the British in 1814.
In that year the receipt were $6,090; salaries, $2,150; and
contingent expenses, $403.01. In 1835 the number of patents
issued was seven hundred and eighty-four, and the salaries paid
$5,400. The whole number of patents granted from February 21,
1793, to July 8, 1836, was 9,957.
The Law of 1836
On December 31, 1835, Hon. John Ruggles, Senator from Maine,
moved that the Senate appoint a committee to take into
consideration the condition of the Patent Office and the law
relating to the issuing of patents. The committee was appointed,
and on April 28, 1836, made a report, and at the same time
submitted a bill for the reorganization of the Office. The
report substantially said, among other things, that the
Department of State had been going on under the law of 1793,
issuing patents on every application without any examination into
the merits of the invention, and that the evils necessarily
resulting from such a practice must daily increase till Congress
put a stop to them. Some of the specified evils were as follows:
1. A large number of the patents granted are worthless and void,
as conflicting with and infringing one another, or based upon
matters not subject to patent privileges; this state of things
arising either from a want of due attention to the specification
of claim or from ignorance on the part of the patentees as to the
state of the art in this and foreign countries. 2. The country
is flooded with patent monopolies, embarrassing to bona fide
patentees, whose rights are thus invaded on all sides; and not
less embarrassing to the community generally, in the use of even
the commonest and oldest improvements in the arts and
manufactures. 3. Out of this interference of patents a great
number of lawsuits arise, onerous to the courts, ruinous to the
parties, and injurious to society. 4. The law opens the door to
frauds, which have already become extensive and serious. It is
represented that it is not uncommon for persons to copy patented
machines in the model room; and, having made some immaterial
alterations, to apply in the next room for patents. There being
no power to refuse them, patents are of course issued. Thus
prepared, these patentees go forth on a retailing expedition,
selling out their patent rights for States, counties and
townships, to those who find, when it is too late, that they have
purchased what the vendors had no right to sell or use. This
speculation in patent rights has become a regular business.
Further, the first inventor sees his invention pirated from him,
or else he must, to protect his rights, become involved in
numerous and expensive lawsuits in distant and various sections
of the country.
After thus forcibly pointing out the evils of the existing
law, the report stated that to prevent these evils in the future
was the first and desirable object of an alteration of the law,
and that the obvious, if not the only, means of effecting it was
the issuing of patents for new inventions only. With this report
before them, Congress took up and passed the bill which
accompanied it, and the bill became a law, July 4, 1836. This
law required an examination to be made of the merits of the
invention, and in this respect was a distinct return to the
American system inaugurated by the act of 1790. Its wisdom has
never been successfully questioned, and it has found its
justification in the industrial progress of the greatest nation
in the world. The law established the Patent Office as a bureau
under the Department of State, and put it in charge of a chief
officer to be called the Commissioner of Patents, at a salary of
$3,000 per annum, his duty being, under the direction of the
Secretary of State,to suspend the issuing of patents. The law
further provided for a chief clerk, "an examining clerk," at
$1,500; two other clerks, one of them to be a competent
draughtsman; one other clerk, a machinist, and a messenger. It
provided, also, a seal for the office, and required that a patent
should issue under that seal, and be signed by the Secretary of
State, and countersigned by the Commissioner; that every patent
should contain a title of the invention, correctly indicating its
nature and design, referring to the specification for the
particulars thereof, a copy of the specification to be annexed to
the patent.
Section six of the act provided, substantially, that any
person having invented any new and useful art, machine,
manufacture, or composition of matter, or any new and useful
improvement thereon, not known or used by others before his
invention thereof, and not at the time of his application for a
patent in public use or on sale with his consent, and desiring to
obtain an exclusive property therein, might make written
application to the Commissioner, expressing such a desire, and
the Commissioner might then grant the patent; but that before the
inventor should receive the patent he should deliver a written
description of his invention, and "particularly point out and
specify the part, improvement, or combination which he claims as
his invention." The applicant was also required to make oath
that "he does verily believe he is the original and first
inventor of the invention for which he solicits a patent; that he
does not know or believe that the same was ever before known or
used," and of what country he was a citizen.
Under this act, also, the specification and drawing had to be
signed by the inventor and attested by two witnesses, and a model
was required. The fees were fixed at #30 for citizens and aliens
resident in the United States for one year next preceding the
application, $500 for British subjects, and $300 for all other
persons; further, all the moneys received were to constitute a
fund for the payment of salaries and expenses of the Office, to
be called the Patent Fund. On the filing of an application, the
Commissioner was to cause an examination to be made of the
alleged new invention, and if it appeared therefrom that the
applicant was the first and original inventor, and the
Commissioner deemed his invention sufficiently useful and
important, it was his duty to issue a patent therefor. And if,
on the other hand, it appeared that the applicant was not the
first and original inventor, the Commissioner was required to
notify him of the fact, giving him such information and
references as might be useful in judging of the propriety of
renewing his application or of altering his specification. In
every such case, if the applicant elected to withdraw his
application and relinquished his claim to the model, he was to
receive back $20 of the original fee; but if he persisted in his
application, with or without altering his specification, he was
required to make the oath anew, in the manner required on first
filing his application. It was the practice of the Office up to
1863 to return the papers to the applicant for amendment; but in
that year this practice was stopped and the applicant in order to
amend intelligently had either to retain copies of the papers or
have the Office make them. From the refusal of the Commissioner
to issue a patent the applicant could appeal to a board of three
examiners appointed for that purpose by the Secretary of State on
each occasion when appeal was taken; and the Commissioner was
governed by their decision in the further action in the case. He
was also required to decide interferences, and an appeal was
allowed from his decision therein to a similarly appointed board.
The law further made provision for the filing of a caveat and for
notice to the caveator of an interfering application filed within
one year after the caveat. It re-enacted the law as to reissues,
and allowed the original patentee to have the specification of
any improvement of the original invention invented by him
subsequent to the date of his patent annexed to the original
specification. The act provided, also, that whenever an
application was refused on an adverse decision of a board of
examiners, on the ground that the patent applied for would
interfere with an unexpected patent previously granted, the
applicant might have remedy by bill in equity in any court having
cognizance thereof, and that its adjudication, if favorable,
should authorize the Commissioner to issue such patent; if
unfavorable, appeal lay to the Supreme Court of the United
States, provided the amount involved brought the case within the
provision of the Judiciary Act of 1789. By a subsequent act,
approved February 18, 1861, the appeal might lie without regard
to the amount in controversy. Application for the extension of
the term of a patent had to be made to the Commissioner; and the
Secretary of State, the Solicitor of the Treasury, and the
Commissioner were constituted a board to hear and decide the
application, and if their decision was favorable the Commissioner
renewed the patent for a term of seven years from and after the
expiration of the first term.
The law further enacted that there should be provided a
scientific library for the Office, and appropriated $1,500 for
the purpose, to be paid out of the patent fund. There was a
library of some three hundred volumes in the Office prior to this
provision, and the $1,500 was designed to be used in the purchase
of new books for the existing library; but before any of the
money was used the library was burned in the fire of December 15,
1836. The law also enacted that the models and specimens of
compositions and of fabrics and other manufactures and works of
art, patented and unpatented, which had been or should thereafter
be deposited in the Office, should be classified and arranged in
such rooms or galleries as might be provided for the purpose.
The first patent issued under the law was to Hon. John
Ruggles "For locomotive engines on inclined planes," July 13,
1836.
Henry L. Ellsworth was appointed as the first Commissioner,
and Charles M. Keller examining clerk, and thereupon the present
system of examination began. Mr. Keller's father was the first
machinist the Office ever had, and at his death, in 1831, his son
became the successor. Mr. Keller's judgment and experience in
the Office contributed largely to the formulation of the law.
Indeed, it has been stated that he originated the idea of an
amendment of the act of 1793, and on the lines of the law of
1836.
On June 15, 1836, Mr. Ruggles, as one of a committee
appointed on his motion for the purpose, reported a bill
"providing for the construction of a building for the
accommodation of the Patent Office." On June 28, the bill then
being on its last reading, a motion was made to recommit with
instructions to report a bill providing for the purchase of the
"old brick Capitol," fronting Capitol Square. The motion was
lost, and the bill as read passed the Senate, appropriating
$108,000, out of the "patent fund" for the erection of a suitable
building of brick and wood. A House amendment changed these
materials to cut-stone facing for the exterior walls, and also
provided for fireproofing the structure within. The bill as
amended became a law July 4, 1836. Late in that month the
erection of the building began. it was the present south front
of the Patent Office, excluding the south ends of the east and
west wings. The building was 270 feet long and 69 feet wide.
The basement (what is now the first or ground floor), was to be
used for storage, fuel, furnaces, etc., the first or portico
floor for office rooms and the second floor was to be one large
hall, with galleries on either side, and to have a vaulted roof.
This hall was designed to be used as a national gallery of the
industrial arts and manufactures, and for the exhibition of
models of patented and unpatented inventions. The body of the
building is of Virginia sandstone and was afterwards painted
white.
On December 15, 1836, a fire destroyed the building in which
the Patent Office was, and all the models and records and the
library, with the exception of one book, volume VI of the
Repertory of Arts and Manufactures (now in the Scientific Library
of the Office), which an employee of the office happened to have
taken to his home before the fire. Among the records destroyed
was a folio containing drawings of Fulton's first steamboat, made
by his own hands.
On December 19th, Mr. Ruggles asked that a committee be
appointed "to report the extent of the loss sustained by the
burning of the Patent Office." This committee made a report, and
also at the same time submitted a bill which became the act of
March 3, 1837, and in which every provision was made to restore
the specifications, drawings, and models, by obtaining duplicates
of them from the persons in whose possession the originals were.
An appropriation of $100,000 was made for this purpose. The
whole number of models destroyed was about seven thousand, and
the records covered about ten thousand inventions. It was not
until 1849 that the work of restoration was discontinued, and out
of the amount allowed for the purpose $88,237.32 was expended.
The act further provided that whenever a patent should be
returned for correction and reissue under the act of 1836, and
the patentee desired it, several patents might be issued for
distinct and separate parts of the thin patented, on the payment
of $30 for each additional patent so to be issued. It also
enacted that any patent thereafter to be issued might be granted
to the assignee of the inventor, the assignment thereof being
first entered of record, and the application therefore being made
and the specification sworn to by the inventor. Prior to the
passage of this act a patent could issue to the inventor only;
but after it had issued it was assignable so as to give the
assignee legal rights. It required that in all cases thereafter
filed, duplicate drawings should be furnished, one to be
deposited in the Office and the other annexed to the patent and
considered a part of the specification. It was the practice of
the Patent Office under the act to accept a single drawing as
sufficient for the purpose of an examination of the application,
but an additional one was required before the patent issued, in
order that one might accompany it, while the other remained in
the Office. In this law provision was first made for disclaiming
the parts of a thing or process of which the patentee was not the
first inventor. It also further enacted that when application
should be made for any addition to a patent, or whenever a patent
should be returned for correction and reissue, the claim in every
such application or patent should be re-examined. The
Commissioner was also required by the law of 1837 to report to
Congress in January, annually, the expenditures of the Office,
together with a list of the names of patentees, etc. The law of
1836 contained no such requirement, probably through
inadvertence.
On March 3, 1839, an additional act was passed abolishing the
board of examiners provided for by the act of 1836, and enacting
instead that the appeal might be taken from the Commissioner to
the Chief Justice of the District Court of the District of
Columbia, and provision was made for filing a bill in equity by
an applicant in any court having cognizance thereof, in all cases
not only where patents were refused by the Commissioner, but
where refused by the Chief Justice of the District of Columbia.
After the abolition of the "board" each examiner decided the
interfering applications that arose in his division and reported
his decision to the Commissioner. On July 1, 1860, Commissioner
Thomas changed this practice by deputing one examiner to
determine all interferences. The act further provided for an
appropriation of one thousand dollars out of the patent fund to
be expended by the Commissioner for the collection of
agricultural statistics, distribution of seeds, etc., and from
this date until the establishment of the Agricultural Bureau the
Commissioner of Patents had charge of this work, which was done
in the Patent Office.
During the erection of the Patent Office building the
Commissioner found temporary quarters in the City Hall. In the
spring of 1840 the building was completed and the Office moved
into its own home, upon the building of which the sum of
$422,011.65 was expended. The Commissioner in his annual report
for 1840 said: "The patented models are classified and exhibited
in suitable glass cases. The National Gallery is ready for the
exhibition of models and specimens. I am happy to say that the
mechanics and manufacturers are improving the opportunity to
present the choicest contributions, and from the encouragement
given, no doubt is entertained that the hall, considered by some
so spacious, will, in a short time, be entirely filled,
presenting a display of national skill and ingenuity not
surpassed by any exhibition in the world."
The number of applications during that year was 765; number
of patents 475, and of caveats 228. The receipts were
$38,056.51, and expenditures, on account of salaries, $16,486.37,
and contingent expenses, including agricultural statistics and
seeds, $23,982.45. The balance in the Treasury to the credit of
the "patent fund" was $75,000.
On August 29, 1842, an additional act was passed, providing
for the issuing of a patent for "any new and original design,"
for the term of seven years, and for the taking of the oath to
the specification in foreign countries.
An act of May 27, 1848, abolished the board for the extension
of patents, composed of the Secretary of State, the Commissioner
of Patents, and the Solicitor of the Treasury, and vested their
powers in the Commissioner alone. When an application for the
extension of a patent was made, the Commissioner was required to
refer the case to the principal examiner having charge of the
class of inventions to which the case belonged, for a report, and
upon his report the Commissioner granted or refused the
extension.
By the act of March 3, 1849, establishing the Interior
Department, the Patent Office was attached thereto. This same
act appropriated $50,000 out of the patent fund to begin the east
or Seventh street wing. It was completed in 1852, and cost
$600,000, $250,000 of which was taken from the revenues of the
Office. As soon as the wing was ready for occupancy, the
Interior Department took possession.
By an act approved August 31, 1852, a librarian, at $1200,
was provided for the Office. This act also appropriated $150,000
to begin the erection of the west or Ninth street wing. Plans
for the entire building as it now stands were prepared in this
year. The west wing was completed and occupied in 1856, and cost
$750,000. In the same year work was begun upon the north or G
street wing.
Previous to December, 1857, the Commissioner heard appeals in
person from the adverse decisions of the examiners; but this
practice becoming a physical impossibility, owing to the increase
in the business of the Office, Commissioner Holt at first deputed
temporary boards of examiners to decide appeals, and at length
created a permanent board of three examiners, whose duty it was
to decide on appeal all rejected cases and submit their decisions
to him for his approval. By an act passed March 2, 1861,a board
of three examiners-in-chief was established,whose duties were,
principally, to decide appeals from the adverse decisions of the
examiners. No appeal fee was charged, but under an act passed in
June, 1866, a fee of ten dollars was necessary. An appeal from
this board was allowed to the Commissioner in person on payment
of twenty dollars. An appeal could not be taken from an
examiner, except in interference cases, until after the
application had been twice rejected, and the second examination
was not to be given until the applicant renewed the oath. The
act of March 2, 1861, also provided that no money paid as a fee
on any application for a patent, after the passage of the act,
should be withdrawn or refunded; nor should the fee paid on the
filing of a caveat be considered as a part of the fee on filing a
subsequent application for the same invention. The right to
annex to a patent the specification of additional improvements
was also repealed by this act. The right to withdraw the fee was
given to American applicants by the act of 1836, and was extended
to foreigners by the act of 1837. The right of having a caveat
fee applied as part of the sum to be paid upon a subsequent
application was given by the act of 1836. By act of 1861, also,
all the Office fees were revised and the present rates
established. The term of seven years for design patents was
changed, by providing that after the date of the act a patent for
a design might be granted for the term of three and a half years,
or seven years, or fourteen years, as the applicant might elect,
and fixing the fees at ten, fifteen, and thirty dollars,
respectively. It was also enacted that applications must be
prepared for examination within two years after the filing of the
petition, and in default thereof they were to be regarded as
abandoned, unless it were shown to the satisfaction of the
Commissioner that such delay was unavoidable. Previous to this
an applicant might suit his own pleasure and interest as to the
time when he would complete his application for examination. By
the same act the term of all patents was fixed at seventeen
years, all extensions of patents were prohibited, and the
Commissioner was authorized to print ten copies of the
specification and drawing of all patents thereafter issued.
Prior to this the copies were made by tracing or drawing.
By section three of an act, March 3, 1863, it was enacted,
"That every patent shall be dated of a day not later than six
months after the time at which it was passed and allowed and
notice thereof sent to the applicant. And if the final fee be
not paid within the six months, the patent shall be withheld and
the invention become public property as against the applicant."
In this act, also, the requirement as to a renewal of the oath,
when on a first rejection the applicant shall persist in his
claim, under the act of 1836, was repealed.
By an act of March, 1865, it was provided that any person
having an interest in an invention for which a patent was ordered
to issue upon payment of the final fee, as provided in section
three of the act of 1863, but who had failed to make payment as
provided in that act, should have the right to make an
application for a patent for his invention the same as in the
case of an original application, provided such application be
made within two years after the date of the allowance of the
original application.
In 1867 the north or G street wing of the present Patent
Office building was finished at a cost of $575,000. The entire
building cost $2,347,011.65. It speaks for itself! It is one of
the handsomest, most massive public structures in the world, and
would be a credit to any age or people. Were it wholly given
over to the use of the Patent Office, for which it was originally
solely intended, and to which it, by right, ought to be given,
the inventors of the whole world might well point with pride to
the complete justice of the American people.
The appropriations act of July 20, 1868, abolished the
"patent fund," and provided that all moneys received by the
Office should be paid into the Treasury. Thereafter
appropriations were made for the Office in the same way as for
other Bureaus. From 1793 to the date of this act the moneys
earned by the Office were kept in the Treasury as a separate
fund, known as the "patent fund," and the Commissioner drew
against it for the expenses of the Office. There was on January
1, 1868, a balance in the Treasury to the credit of the patent
fund of $271,444.48, and all of this was swept into the general
coffers of the Government by the act of July 20, 1868.
On May 1, 1869, Samuel S. Fisher, of Ohio, became
Commissioner. He was the first to publish his decisions and to
have the copies of the specifications and drawings made by photo-
lithography. He also instituted the practice of requiring a
competitive examination for entrance to and promotions in the
examining force of the Office.
In this year, by conventions between the United States and
France and Russia, provision was made for the deposit in the
Patent Office of trade-marks by citizens of any of these
countries; but no fee was provided for the filing of the
papers.
In 1843, and annually thereafter, a report was published,
containing an alphabetical index of names of inventors, a list of
expired patents, and the claims of the patents granted during the
year, and in 1853 and afterward small engraved copies of a
portion of the drawings were added to the reports to explain the
claims. In 1843 the report was a small pamphlet, but by 1867 it
had swelled to four large volumes. They were known as the Patent
Office Reports.
In 1870 there were 19,171 applications filed, and 13,333
patents issued. The Office receipts were $669,456.76, and
expenditures on account of salaries $404,143.53; and contingent
expenses $153,003.59. The balance in the Treasury, showing the
profits of the Office, was $643,355.21. From July 8, 1836, to
January 1, 1870, 98,460 patents were issued, and the examining
force increased from one examiner to three examiners-in-chief,
twenty-two principal examiners, twenty first assistant examiners,
and the same number of second assistants.
List of Commissioners under the Act of 1836
Henry L. Ellsworth, July 4, 1836
Edmund Burke, May 4, 1845
Thomas Ewbank, May 9, 1849
Silas H. Hodges, November 8, 1852
Charles Mason, May 16, 2853
Joseph Holt, September 10, 1857
William D. Bishop, May 27, 1859
Philip F. Thomas, February 16, 1860
D.P. Holloway, March 28, 1861
J.C. Theaker, August 17, 1865
Elisha Foote, July 29, 1868
Samuel S. Fisher, April 26, 1869
CHAPTER VI
THE LAW OF 1870
On July 8, 1870, an act was passed, revising, consolidating,
and amending the statutes relating to patents and repealing the
twenty five acts and parts of acts, including such portions of
the appropriations bills as were applicable to the Patent Office,
that had been enacted since the passage of the law of
1836.
The law of 1870 added to the force of the Office an Assistant
Commissioner; and an examiner of interferences, whose office was
to determine the question of priority of invention in
interference cases. It gave the Commissioner authority, subject
to the approval of the Secretary of the Interior, to establish
regulations for the conduct of proceedings in the Office. As
early as 1828 the office began to print for free distribution
circulars containing information as to what the law relating to
the issuing of patents was, and how to proceed to obtain a
patent. These circulars were revised and enlarged from time to
time, as various changes and additions were made in the law
affecting the practice before the Office. The information
contained in them was divided into numbered sections and
conveniently arranged under suitable headings. At length these
circulars took the form of a pamphlet, which began to be called
the Rules of Practice, but prior to the act of 1870 the rules did
not have the force of law. The statute also authorized the
Commissioner to print copies of the claims of the current issues
of patents, and of such laws, decisions, and rules as were
necessary for the information of the public. Under this
provision the Office began to publish weekly a list giving the
numbers, titles and claims of the patents issued during the week
immediately preceding, together with the names and residences of
the patentees. In the Commissioner's Report for 1870, he
recommended that the scope of the publication be enlarged so as
to constitute an official gazette of the Office. On January 3,
1872, the weekly list was first published under the name of The
Official Gazette of the United States Patent Office. It then,
however, embraced only the matters specified in the law of 1870;
but in July, 1872, portions of the drawings were introduced to
illustrate the claims in the patented cases. This enlargement
was brought about in the following way. By a joint resolution of
Congress, in January, 1871, the publication of the illustrated
annual reports (commonly known as the Patent Office Reports) was
ordered to be discontinued and in lieu thereof the Commissioner
was directed to have printed for free distribution one hundred
and fifty copies of the complete specifications and drawings of
each patent issued after July 1, 1869; but in May, 1872, Congress
ordered this publication to be stopped, and at the same time made
provision for illustrating the claims in the Official Gazette in
the manner as above stated. The Official Gazette now has a
circulation of about 7,000 copies, of which number 2,953 are
subscribed for at five dollars per annum, and 3,576 are
distributed free to public libraries, members of Congress, and
public officials. The expense of its publication is about
$55,000 a year.
The law of 1870 enacted that the thing or art for which a
patent was sought must, in order to be patentable, be a new and
useful invention, not known or used by others in this country,
and not patented or described in any printed publication in this
or any foreign country before the applicant's invention thereof,
and not in public use or on sale for more than two years prior to
the application, and not proved to have been abandoned. It also
added a provision that upon the failure of an applicant to
prosecute his application within two years after any action
therein, the application would be regarded as abandoned, unless
it was shown to the satisfaction of the Commissioner that the
failure to prosecute was unavoidable. Previous to this
provision, after an action on the application by the Office, it
might lie until it suited the applicant's leisure or interest to
amend or request a re-examination. In some instances
applications were not called up for ten and twelve years.
A model was not to be furnished until the Commissioner
required it. The change was made principally because there was
not sufficient room in the model halls to classify and arrange
the models, and because of the further fact that there was a
preponderating opinion that they were unnecessary. There are now
some 154,000 models in the model halls, and they are being added
to at the rate of about 550 a year.
Provision was also made for the protection of Trade-Marks by
allowing them to be registered in the Office.
By an act, August 1, 1874, the Commissioner was also charged
with the supervision of the entry or registry of Labels.
In February, 1872, Mr. Leggett, who was Commissioner at that
time, in a communication to the Secretary of the Interior,
invited his "attention to the propriety of severing the Office
from the Interior Department and its establishment as a
department by itself." The Secretary transmitted the
communication to the President, with the statement that the
matter was "worthy of consideration." On March 24, 1872, the
President sent the letters of the Secretary and of the
Commissioner to Congress, with the message that he recommended
"the careful consideration of Congress to the subject." The
message was read, referred to the Committee on Patents, and
ordered to be printed. It appears that nothing further was done
in the matter until some five years later, when a bill was
introduced in Congress providing for the organization of the
Patent Office into an independent department and for giving it
exclusive control of the building in which it was, and in 1884
the same bill was introduced in the Senate. Nothing came of the
measure.
Hundreds and hundreds of incidents could be given of other
and different measures proposed to Congress relating to the
Patent Office and the patent system, and this one is only singled
out because the historian of a hundred years hence will write of
this as being the first attempt in which it was sought to
establish the Department of Sciences and Arts. The patent fund
will then have erected in the capital city a vast and magnificent
temple in which will be permanently displayed the treasure stores
of the Sciences and Arts. The imagination of the reader can
divine what the scope of such a department will be.
In December, 1873, the law of 1870 was repealed and re-
enacted in the Revised Statutes of the United States.
On September 24, 1877, the roof and model rooms and contents
in the west and north wings were destroyed by fire, and much
damage done to the building. About 87,000 models and 600,000
photo-lithographic copies of drawings were ruined by fire and
water.
By an act approved February 18, 1888, one of the Assistant
Secretaries of the Interior, to be designated by the Secretary of
the Interior, is authorized to sign patents.
In 1871 there were 19,472 applications for patents, and
13,033 patents were issued. The receipts of the office were
$678,716.46 and expenditures on account of salaries $422,316.02;
contingent expenses were $14,082.32, and there was a balance in
the Treasury to the credit of the patent fund of $759,180.03
In 1890 the number of applications was 41,048, and the number
of patents issued 26,208, an increase in nineteen years of 21,576
applications, and 13,175 patents. The receipts of the Office
were $1,340,372.66, and the expenditures on account of salaries
$657,505.15, and contingent expenses $158,867.83. Balance in the
Treasury, January 1, 1891, $3,872,745.24.
From January 1, 1871, to January 1, 1891, there were 333,370
patents issued, or an annual average of 16,668. For the period
beginning with January 1, 1868 (the date is just prior to the
abolition of the patent fund), and ending January 1, 1891, the
Office paid into the Treasury, over and above all expenses,
$3,301,600.76, or an annual average of $156,143.52; more than
enough to pay the aggregated salaries of the President and the
Justices of the Supreme Court for every year during the
period.
List of Commissioners
M.D. Leggett, January 16, 1871
John M. Thatcher, November 4, 1874
R.H. Duell, October 1, 1875
Ellis Speer, January 30, 1877
H.E. Paine, November 1, 1878
E.M. Marble, May 7, 1880
Benjamin Butterworth, November 1, 1883
M.V. Montgomery, March 23, 1885
B.J. Hall, April 12, 1887
C.E. Mitchell, April 1, 1889
Commissioner
Mitchell
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