History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 25 -- Antebellum
[Pg 150]
CHAPTER TWENTY FIVE
ANTEBELLUM
Elmer E. Ellsworth (1837-1861), who was no kin to ex-Commissioner Ellsworth, became a clerk in the Chicago office of Arthur F. Devereux, patent solicitor, about 1855, at age eighteen. They soon became partners in the business. The firm was becoming prosperous by the time he was twenty-one. However, after they had entrusted their funds to an agent who has not been named, the agent absconded with the funds, robbing them of the accumulation of three years of work. Mr. Ellsworth then entered the law office of Abraham Lincoln at Springfield, spending part of his time studying law for admission to the bar and part of his time promoting a scheme to reorganize the Illinois militia. [footnote 1]
[Page 150 illustration: Portrait of Abraham Lincoln]
Abraham Lincoln was no stranger to the patent law. In late 1848, while Lincoln was coming up the Detroit River on the steamboat Globe, the boat ran aground on the shoals off Fighting Island. When he returned to Illinois, he began work on a model of a new boat with inflatable bellows on each side of the boat just below the waterline. When this boat ran aground on shoals, the bellows were to be inflated, buoying the boat over the shoals. Abraham Lincoln had been elected to one term in Congress, from March 1847 to March 1849. When he returned to Washington for the second session, he brought his model with him, went to the offices of Zenas C. Robbins, patent solicitor, and applied for a patent. One of the fond memories of Robert Todd Lincoln, his son, was the time in 1848 when his father took him to the Model Room of the Patent Office to look at the displays. Abe Lincoln's patent was issued on May 22, 1849, as U.S. Patent No. 6,469, for "Buoying Vessels over Shoals." He thus became the only President who was a patentee. And as noted earlier, at the time when Mr. Lincoln went to the office of Zenas C. Robbins to secure a patent, Mr. Robbins' apprentice draftsman, who may well have worked on the drawings for Mr. Lincoln's application, was our young friend Robert Washington Fenwick.
Early in his career, Lincoln won the unreported case of Parker v. Hoyt for the defendant, proving to a jury that his client's waterwheel did not infringe the plaintiff's patent. His second largest professional fee came from his participation in the Reaper Case, McCormick v. Manny, in association [Pg 151] with George Harding, prominent patent attorney of Philadelphia, and another aggressive Pennsylvania lawyer, Edward M. Stanton, representing the defendant Manny. Although Mr. Lincoln was well-prepared and well-paid for his intended argument, Harding and Stanton thought him too ungainly and unpresentable to be allowed to participate in the arguments, and he was sent home unheard. Nevertheless, the defendant won. Lincoln argued his last patent case, Dawson v. Ennis, after his nomination for President, but before his election. Although Lincoln won the election, his client lost his case. [footnote 2]
Lincoln held no hard feelings toward Stanton and Harding. Upon his election as President, he offered the job of Commissioner of Patents to Harding, who refused it. He later offered the position of Secretary of War to Edward Stanton, who accepted it.
[Page 151 illustration: Portrait of Joseph Holt]
The Commissioner of Patents appointed to replace Judge Mason was Joseph Holt (1807-1894) of Kentucky. Mr. Holt began the practice of law in 1828 in Louisville and served as commonwealth's attorney there from 1833-1835. He then moved to Mississippi and practiced law until 1842. When he won a large judgment against the city of Vicksburg on behalf of the heirs of the founder of the city, he became wealthy and gave up the private practice of law. He lived a quiet life back in Kentucky, engaging in much foreign travel, until he moved to Washington in the spring of 1857. When he was first offered the office of Commissioner, he turned it down, but soon thereafter accepted it. According to the new Secretary of the Interior and one-time fellow Mississippi lawyer Jacob Thompson, Mr. Thompson had obtained the position for Mr. Holt because Mr. Holt was a briefless lawyer with nothing else to do. This and other more unfriendly remarks were made years after a Civil War during which Mr. Holt had been Judge Advocate General of the Union Army and Mr. Thompson had been Governor of Mississippi. But again, we are well ahead of our story.
Joseph Holt was appointed Commissioner of Patents on September 10, 1857. By December, Mr. Holt had established a Board of Appeals to hear appeals from adverse decisions of an examiner. The initial Board of Appeals consisted of Thomas H. Dodge, DeWitt C. Lawrence and A. B. Little. This was not the official Board of Appeals later authorized by Congress in 1861, but it served as an unofficial advisory board to the Commissioner. According [Pg 152] to reports in Scientific American, Mr. Holt had been attempting to persuade examiners to be more liberal in granting patents. Applicants had the right to appeal to the Commissioner from adverse decisions of an examiner, but Commissioner Holt was being overwhelmed with appeals from examiners that he could not convince to be more liberal in their decisions. Thus he appointed a Board of Appeals to take the pressure of work off his shoulders. [footnote 3] Finally they reported that the Commissioner felt that certain old examiners were attempting to subvert his policies of liberality, almost to the point of insubordination, so he dismissed them. Scientific American likened this to Dogberry's maxim, that when two people undertake to ride the same horse, one, of necessity, must ride behind the other. [footnote 4] Commissioner Holt was determined that he should ride in the front, and, as it were, determine where the Patent Office pony was to go. By 1858, Commissioner Holt was complaining that withdrawal of the three examiners from their regular duties had reduced the number of principal examiners in the examining force by 25 percent. Mr. Holt wanted more principal examiners to be authorized by Congress. [footnote 5]
[Page 152 illustration: 1859 Office Seal]
Early in the administration of Commissioner Holt, Oscar J. E. Stuart, of Holmesville, Mississippi, requested information on how to get a patent on an invention made by Ned, a slave belonging to Mr. Stuart's late wife's estate. The invention was an improved cotton scraper plow for plowing cotton fields. Jacob Thompson presented the matter to Attorney General Jeremiah S. Black for an opinion, but he refused to give an advisory opinion, indicating that he would pass upon an actual pending patent application. When Mr. Stuart recited all of the relevant facts and filed an application in his own name, the Attorney General ruled that Mr. Stuart could not claim to be the inventor and so could not make the application in his own name. [footnote 6] Ned, being a slave, was not considered a citizen of any country, could not make the oath of citizenship required by the law and so could not make the application in his name. A century or more later, some people have considered this to be another instance of the federal government depriving slaves of rights, but it could also be interpreted as a federal government which deprived slave owners of at least one benefit of owning slaves. In the Annual Report for 1857, Mr. Holt indicated that this was only one of several applications that had been received within the past year for inventions made by slaves, a situation which he believed had never arisen before. Oscar Stuart [Pg 153] was later a colonel in the Confederate Army. Nothing further is known of Ned.
[Page 153 illustration: Portrait of Benjamin T. Montgomery]
There was a similar incident somewhat later, less well documented, in which Benjamin T. Montgomery (1819-1877), a slave on the plantation of Jefferson Davis' brother Joseph Davis, invented a propeller for a river steamboat, operating on the canoe-paddling principle. It is said that both Davis brothers tried to get a patent for Benjamin Montgomery, but they were prevented from doing so by the Attorney General's decision in Ned's case. A few years later, when Jefferson Davis was President of the Confederate States of America, he signed legislation into law allowing slaves to get patents for their inventions. Apparently, Benjamin Montgomery later filed his application for a U.S. patent as a freed man on June 28, 1864, but did not receive a patent. Perhaps this is because of a strong similarity between his paddling propeller and the steamboat that John Fitch demonstrated to the Constitutional Convention. [footnote 7]
In March 1859, Commissioner Holt was appointed Postmaster General to replace A.V. Brown, who had recently died. Later in the administration of President Buchanan, he was made Secretary of War. He was the only member of Buchanan's final cabinet who did not side with the Confederacy.
[Page 153 illustration: Portrait of William Darius Bishop]
On May 7, 1859, William Darius Bishop (1827-1904) of Connecticut was appointed as the new Commissioner of Patents. Mr. Bishop had been president of the Naugatuck Railroad in 1855, and had served one term as a Congressman from 1857 to 1859, and when his term in Congress expired, he was appointed a 31-year-old Commissioner of Patents. Very early in 1860, Commissioner Bishop arranged for photographic copies to be made of certain patent drawings and used these copies to supply copies to the public and also to provide extra copies for examiners to use in examining applications. [footnote 8] This practice was not continued for long. In Mr. Bishop's only Annual Report as Commissioner, that for 1859, he told Congress on January 26, 1860, that he could not comply with [Pg 154] their recently imposed limit of 800 pages for an annual report. He said that he was submitting one of 1,200 pages because a shorter report would be useless. Possibly because he left office very shortly after making this annual report, there were no repercussions. Why Mr. Bishop left office so suddenly seems not to have been reported. On January 28, 1860, Scientific American was praising his work and wishing him continued success and by February 4 was announcing the expected appointment of Samuel C. Ingham to be the new Commissioner.
[Page 154 illustration: Portrait of Philip Thomas]
However, Mr. Ingham refused the office, and the new Commissioner was Philip Francis Thomas (1810-1890), ex-Governor of Maryland, who was appointed on February 15, 1860. Mr. Thomas resigned from the office of Commissioner on December 10, 1860, to become Secretary of the Treasury in President Buchanan's cabinet. Mr. Thomas was soon a Southern sympathizer during the Civil War.
[Page 154 illustration: Portrait of Shimmi Masaoki]
In the summer of 1859, John Mercer Brooke (1826-1906), a lieutenant in the U.S. Navy, was shipwrecked in Yokohama, Japan, where he established good relations with the Japanese government. When Japan was to send a diplomatic mission to Washington the following year to exchange ratifications of the Harris treaty of 1858, Lieutenant Brooke and ten of his seamen were invited to accompany the mission and train Japanese mariners in ocean navigation. The ambassadors, Shimmi Masaoki, Lord of Buzen (1822-1869), and Muragaki Norimasa, Lord of Awaji (1813-1880), left Japan in January 1860 on the American warship Powhatan. A Dutch-built Japanese ship, Kanrin Maru, sailed with the American ship, with Lieutenant Brooke and his men aboard to help train the Japanese crew. [footnote 9] When the ambassadors arrived in Washington, they had a full schedule of visits. On May 21, 1860, the ambassadors were given a guided tour of the Patent Office by Commissioner Thomas. The model cases were unlocked, and Commissioner Thomas handed them for closer inspection any models which seemed to interest them. The Japanese seemed to understand everything that was shown [Pg 155] to them. There was a great crowd of people following them everywhere they went, observing the strange sight of Oriental men in silk brocade robes, knee britches, and dark stockings, who wore curious hats resembling small houses strapped to the top of their heads. In fact, the ambassadors were so besieged by a crowd that they could hardly move, so they cut short their visit to the Patent Office. However, some of the Japanese made several return visits to the Patent Office to examine models and drawings. Others were frequent visitors to Matthew Brady's gallery, learning the daguerreotype business. [footnote 10] One of the extensive crowd noted the visit in his diary. [footnote 11] On May 29, 1860, Charles Mason was invited by Professor Joseph Henry to meet the Japanese ambassadors at the Smithsonian. Charles Mason was not the only one to go out of his way to meet the ambassadors -- whole families travelled 500 miles by railroad to see the fabled visitors from the Far East. The Japanese were unfamiliar with American customs, and Muragaki noted in his diary that another member of his party drank the water in his finger bowl at a state dinner. At the Smithsonian they saw wigs worn by several former Presidents and thought they had seen a disgusting display of scalps removed from the heads of dead men.
[Page 155 illustration: Portrait of Muragaki Norimasa]
Upon the transfer of Commissioner Thomas to the Treasury Department, Chief Clerk Samuel T. Shugert became acting Commissioner for a period of months. He had acted in this office before, during Mr. Mason's attempted resignation in 1855. Mr. Shugert had been a clerk in the Patent Office since about May 1845, [footnote 12] and he was Chief Clerk under Judge Mason. He remained Chief Clerk until removed from the office about June 10, 1861. [footnote 13] He made the Annual Report for 1860.
Rufus Randolph Rhodes (1818-1870), a lawyer of Louisiana, was appointed assistant examiner in the Patent Office on June 20, 1857. [footnote 14] He was soon a principal examiner and a member of the Board of Appeals. On November 24, 1860, Judge Mason received a letter from W. W. White of Burlington, Iowa, suggesting ways that war could be avoided. Mr. Mason showed the letter to several Southern friends, who said if there were 100 men like Mr. White in the North, they felt they would have hope of avoiding war. When he showed it to Rufus Rhodes, Rhodes said that if he thought there were two men like Mr. White in the North, he would have hope. But hope soon disappeared, and Mr. Rhodes resigned from the office and headed South.
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