that patent practice shall be made simpler, prompter and less expensive.

In its fundamentals the American Patent System is by far the best that has been devised, and should not be disturbed as to its distinctive features.

These distinctive features may be summarized under the three headings of:

1. What shall be protected by the patent system? 2. Who shall be protected by the patent system? 3. How shall such protection be afforded?

Under these three headings, we find the characteristics of our American Patent System which we believe are responsible for the great development of invention, in full vindication of the builders of the Constitution, who provided such a patent system in the belief that it would promote progress in the useful arts.

These characteristics are:

1st: As to what is to be protected:

Our patent system is designed to protect every new and useful invention which adds to the sum of human knowledge.

2nd: To stimulate inventive activity, this protection is granted to those who by their own ingenuity and tireless research bring out of the dark and to human knowledge and service that which was heretofore unknown.

3rd: A most valuable feature of our patent system is that this protection is granted in the form of an absolute grant to the patentee, without terms, conditions or price, of the exclusive right to exclude all others from the use of his patented invention, except on the patentee's terms for a limited period of years.

This system has stimulated an army of inventors, actuated by the hope of reward, and with the absolute knowledge that each inventor may for the term of the grant, control and exploit his invention absolutely on his own terms, without fear of government intervention, annuities, or irksome requirements as to workings.

Each patentee is allowed to make his own bargain and to profit by his own invention in such manner as he may see fit. In the great majority of instances, self-interest will result in a useful invention being exploited on terms which soon give to the public the full benefit of it, subject to such charges as its value to the public will justify. Any disadvantage to the public which may result from the relatively few instances in which the invention is suppressed for part or all of the life of the patent grant, is more than offset by the vast number of useful inventions which come into public use as the result of the enlightened policy of our Patent System.

Nevertheless, in the statutory procedures, intended to give force and effect to these fundamentals, undoubtedly defects exist, some of which can be readily corrected, and others of which require more careful consideration and prolonged study.

Owing to difficulties which have prevented full consideration of these matters in Committee, we do not at this time make any committee recommendation.

However, out of many suggestions received, the following with comments thereon are presented for your consideration:

1st: That the statutory provisions be brought into alignment with the Constitutional authority to grant patents for all of the discoveries of an inventor, possibly limited to new and useful discoveries.

The entire patent system rests on the Constitutional provision authorizing Congress to grant to authors and inventors for limited period exclusive rights in their respective writings and discoveries. It will be noted that the word "invention" does not appear in the Constitution. This word, and the more limited phrase, "Art, Machine and Composition of Matter" are purely creations of statute, and obviously are less comprehensive than the Constitutional term "discoveries". Until the last copyright act was passed the copyright law was not co-extensive with the Constitutional authority to grant copyrights for the writing of an author. Such defect in

the copyright law has now been cured. It is suggested that the Patent Statute should be amended along parallel lines to authorize the grant of patents for all new and useful discoveries of an inventor.

Second: That the wording of the Statute and of the patent grant should be revised to accord with the actuality of the grant.

It is common knowledge with the profession and the courts that a patentee does not by virtue of this patent acquire any right to make, use or sell the patented invention which he did not have or would not have in the absence of such a patent. Nevertheless, instances are not uncommon where the misleading terms of the patent grant have involved patentees in much trouble and expense. Also a line of decisions has developed to the effect that such a grant creates a presumption that the patentee does not infringe any prior patent. It is suggested that the Statute should be revised to provide that the patent shall grant to the patentee the right to exclude others from making, using or selling the patented invention for the term of the grant.

Third: The grant is confusing in that it is a grant to the patentee, his heirs and assigns. This form of the grant has more than once caused discussion and litigation, as to whether or not, on the death of the patentee intestate, the patent descends, as does land, to the heirs of the patentee, or whether it should be administered as a personalty.

The inclination of the courts of probate, notwithstanding the terms of the grant, is to treat a patent as personalty, to be administered by the administrator.

It is suggested that the Statute be amended to provide that the grant be to the patentee, his assigns and legal representatives.

Fourth: Interferences: The application of the law as to who shall be protected by the patent grant is simple until a contest arises, whereupon we become involved in those outrageously complicated, prolonged, expensive and anomalous proceedings known as interferences.

We know of no other proceeding known to the law in which litigants are entitled as a matter of right to at least two appeals on interlocutory proceedings, and in addition four appeals and two original proceedings, as to the same contested state of facts, making a total of four appeals on the merits.

Many, and perhaps most of the abuses arising out of interference proceedings come under three headings, as follows:

First: Interlocutory appeals.

Second: Multiplicity of appeals.

Third: Absence of effective supervision of the taking of testimony.

In order to bring interference proceedings more in line with judicial procedure, and to that end it is suggested: 1: That there be no appeal from interlocutory orders, but that by proper notice all such questions decided by the Nisi Prius tribunal be reserved for further consideration on appeal, when the whole case is appealed on its merits.

2: That all appeals to the Commissioner as a matter of right be abolished in inter partes cases.

This recommendation is highly desirable from two points of view: The present Commissioner of Patents, who has been very helpful to your Committee, has pointed out that the executive and other work of the Commissioner of Patents, aside from the hearing of appeals on the merits, has grown to such volume that it is impossible for the Commissioner to adequately look after them, and also hear and adequately consider and decide interference appeals, and it is with this acquiescence that this recommendation is made.

As to ex parte appeals, while it is true that such appeals are optional with the applicant, nevertheless the public is interested as to the length of time an application can be kept under cover. It is worthy of consideration whether one ex parte appeal should not also be abolished, thereby lessenging the volume of business to be disposed of.

In Income Tax matters, involving vast sums of money, the hearing is first by the Income Tax Unit, then by the Committee on Appeal, after which the tax payer's recourse is by court action. No reason is seen why the course of appeals in Patent matters should not be equally simplified.

Fifth That the appeal to the Court of Appeals of the District of Columbia, both in ex parte and inter parte cases, be abolished.

Sixth: That Section 4915 be amended to provide that in any proceedings thereunder, the record of proceedings in the Patent Office which it is sought to review, shall be certified to the court and thereupon the court shall hear the case upon such record and such additional evidence, if any, as the court shall permit to be taken.

Seventh: As an alternative to the last two proposals, it is suggested that Section 4915 be repealed, leaving only the right of Appeal from the Patent Office to the Court of Appeals of the District of Columbia.

The foregoing recommendations as to interferences will abolish interlocutory appeals, will confine the hearings on the merits to one original hearing and one hearing on appeal, with a right to a court review if desired, thereby bringing interference proceedings more nearly into line with other judicial proceedings.

These changes will imensely simplify interference proceedings, will free the Commissioner of Patents from a tremendous and unnecessary burden, and will bring about these results with a minimum of change in existing laws and proceedings.

Eighth: As to ex parte proceedings, it is suggested:

(1) That in a second action on the merits of an application, regardless of whether it be a second action on any particular claim, the Commissioner of Patents may notify the applicant of the attitude of the Office as to patentability and in that or any subsequent action, may notify the applicant to prepare his case for final action. Thereupon, in any action after such preliminary notice,