CHAPTER XVI

Nature of Letters Patent

PATENTS

The Constitution of the United States authorizes Congress "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." It is in pursuance of the power so granted that "letters patent" are now issued.

These "letters patent" give in terms to the patentee, his heirs and assigns, for a period of seventeen years, the exclusive right to make, use, and sell the invention covered by the patent. If the inventor does not apply for a patent, he, of course, may still make, use, and sell his invention to an unlimited extent, but so can anyone else, leaving the inventor or the owners of the invention no monopoly therein nor any rights in the invention superior to the rights of others.

Herein lies the value of the patent. It gives the inventor the exclusive right to do what he wishes with the patented mechanism or process. If he chooses, he may absolutely refuse to permit the use of his invention by others, nor need he use it himself unless he so desires. He may, if he will, play the part of "dog in the manger," and for the allotted period of the patent the courts will sustain him in the role.

A patent is thus in the nature of a monopoly. At the same time it is a monopoly granted by the people of the United States for a good and valuable consideration. The grantee has invented or discovered something useful-something of value to the people -and as an inducement for the disclosure of what he has invented or discovered, and a reward for the good work he has done, the people give him the exclusive right for a specified term of years

to make, use, and sell it, and during that term he may do with it as he will.

Nor is this unreasonable for, speaking generally, a patent "lays no burdens upon the people except that of remaining for a while without that which they never yet enjoyed," and at the end of the term the patent becomes the property of the people and the inventor's exclusive right is at an end.

Patent Requirements

The broad idea of the patent as outlined above is simple. When, however, we come to the practical application of the principles involved the matter becomes much more complex.

Thus to secure a valid patent the invention must comply with certain prescribed requirements as to nature, novelty, and utility. It may be granted only to the inventor or one claiming title through him. The application must be drawn up in prescribed form. The description of the mechanism or process to be patented must be such as to enable anyone familiar with the art to which it relates to construct the mechanism or to repeat the process with the results claimed by the applicant. Matter may not be interpolated for the sake of concealment or to mislead the public. The claims may not be too broad or they will not stand, nor should they be too narrow or they will not properly protect; they must not be vague or they will only lead to litigation, nor should they be too precise or they will limit the scope of the patent. If the application for a patent contains improper subject matter it will be summarily rejected. If it is merely in improper form, the patent office will require that it be redrawn.

If the applicant avoids all pitfalls and errors, and pays the prescribed fees-$15 when the application is filed and $20 when the patent is taken out-and the application is found to be in the prescribed form, and the invention or discovery proves to be patentable, and there are no prior applications, patents, devices,

Robinson on Patents.

or processes conflicting therewith within the knowledge of the patent office officials, the patent will be granted.

Amateur Patent Applications

It is taken for granted that a patent attorney will be employed when a patent is to be secured. Theoretically, his services are not essential. The inventor may obtain a copy of the rules and procedure of the patent office with forms and suggestions, and prepare and file his own application. Occasionally this is done, but in such cases the caustic comment that a man who is his own lawyer has a fool for his client, usually applies. The patent officials do not smooth the way for such applicants. It is no part of their busy life to unravel the complexities of amateur patent applications. Generally such papers are returned time after time for the correction of the numerous defects characteristic of such documents, until the applicant wearies of his task, or concludes that the patent office is in league with the patent attorneys, or realizes at last that the matter is one requiring expert knowledge, and thereupon secures, as he should have done at first, the services of a patent attorney.

Where the invention to be protected is of any material value, the only possible excuse for an amateur application is an inability to pay the attorney's fees, and these fees are usually so moderate -or will be made so if the position is explained-that the inventor would do better to devote his time to raising them than to waste it upon the preparation of his application.

If an amateur application is finally worked through, the resulting patent is viewed with suspicion by all intelligent investors. On the other hand, the mere fact that a patent was secured through capable attorneys adds to its strength and its value.

Patent Procedure

The first step in securing a patent is usually a search or examination of the issued patents in the particular line to deter

mine whether the invention or any of its features have been already patented. This search made by the inventor's attorney is in most cases a simple and inexpensive matter, costing perhaps but $5 or $10, and in a well-equipped office requiring but a day or two, or even less time, to complete. In more complicated cases more time is, of course, required and the cost may run up to larger figures, depending entirely upon the amount and difficulty of the work involved.

The general patentability of the invention will probably have been passed upon by the patent attorney before this preliminary search is undertaken, and the only fact established by the search is-when such is the case-that there are no existing patents to stand in the way of a patent's being issued for the new device. The patent application should not usually be made until this matter is determined. In some difficult cases, however, as the cheapest and best method of determining the facts, the application may be made first and the patent office itself be left to work out any conflicting claims.

It should be borne in mind that patent applications already in the office and not yet acted upon are not open to public inspection, and that conflicts or interferences may be found in these. Such obstacles can be brought to light by the filing of the application and in no other way. As soon as this has been filed, the patent office will notify the applicant of any conflicts found in pending patents, and he will then have an opportunity to prove, if he can, the priority of his own invention or of those parts which are in interference.

After notice of allowance of a patent, the inventor has six months within which the final fee may be paid and the patent be issued. The general purpose of this six months of grace is to give the inventor time to make his applications, if any are to be made, for foreign patents. As the patent dates from the day of issuenot from the day of allowance-it is customary in the case of valuable inventions to let this six months' period almost expire

before the patent is taken out in order to secure the latest possible date on the patent. If the invention is of considerable value, foreign patents will, of course, be applied for meanwhile.

Delays in Patent Application

When an invention is made its proper patent protection is one of the first things to be considered. Sometimes, however, the invention itself is so nebulous that a patent is impossible until it is more fully crystallized; sometimes it is so novel that the inventor does not wish to publish his discovery, not even in a patent application, until he can more fully master its principles and its applications; sometimes it is thought better to wait until the invention is more fully developed so that one comprehensive patent may cover the perfected machine.

Sometimes patent application is delayed merely because the inventor is inexperienced and is not aware of the risk involved— does not realize the unhappy position he will occupy if some conflicting invention comes in ahead of his and secures a prior patent. Those better versed in patent matters take no such chances. As soon as a patentable idea of value is developed, steps are taken without delay to secure whatever protection may be had.

If the new invention is not in patentable form, or conditions make an immediate application inadvisable or impossible, designs and full descriptions are prepared, signed, duly witnessed, and then filed away. Then in case of conflicts in the patent office, the date of the invention and the other essential data are at hand.

Drafting the Patent Application

The patent application becomes on allowance the patent itself. Therefore its drafting is a matter for careful and accurate work. As to its general form and contents, nothing need be said here. The requirements of the patent office are explicit and are insisted upon. If the application is not in technically correct form it will not be filed but returned for correction.