Possibly the plan, or a plan, should emanate from the Patent Office officials. The Patent Office Society has for one of its objects "to further the industrial development of the United States in so far as the patent system is a factor thereof," and it would seem entirely proper for it to suggest improvements.

To be comprehensive in its features and to possess the proper solidity of support, any plan formulated ought to be approved by manufacturers and patent-bar associations. Why then should not these parties interest themselves in the determination of the question?

It is urged that all concerned do some immediate thinking on the subject to the end that something tangible may soon materialize from which to start a forward movement.

In 1860 the number of new applications filed in the Patent Office was 7,653; in 1867, shortly after the close of the Civil War, there were 21,276 new cases filed. If we are soon to experience a corresponding increase in work, obviously means must be provided to care for it.

The session of the American Economic Association held at the Hotel Jefferson in Richmond, on December 28, 1918, was attended by Bert Russell, Secretary of the Patent Office Society, who found opportunity to interest some of the delegates in the improvement of the patent system and to distribute a number of copies of the November number of the Journal.

THE PATENT ACT OF 1836.

By WILLIAM I. WYMAN.

The patent act of 1790, which created the United States patent system, also initiated the examination method of granting patents. The Secretary of State became the keeper of the records under this law, and with the Secretary of War and the Attorney General constituted a board for the examination and grant of patents. Thomas Jefferson, the then Secretary of State, whose views mainly controlled the policy of the board, had extremely high ideals as to the standard and dignity of the grant. The act was rigorously executed, the board exercising its full discretion to the utmost, and a failure to prove the invention to be sufficiently important was ground for refusal. So vigilantly and drastically was this policy pursued that but three patents were granted the first year and only about three score for the entire life of the act. The decision of the board being final (no appeal being permitted) and the percentage of cases escaping rejection being very small, the opposition of the inventors and the industrial classes was aroused to such a degree that the act was repealed and superseded by the law of 1793.

The act of 1793 was a "registration" device, pure and simple. The act which it superseded was considered by the industrial classes to be inimical to their welfare, and the act of 1793 was passed at their instance. It copied the English system. As stated in the debate on the bill, "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". Thomas Jefferson said of this law, "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.

a

previous refusal of a patent would better guard our citizens against harassment by law suits." The law of 1790 required an examination and made the grant prima facie evidence of validity, while under the act of 1793, patents

were granted upon compliance with certain formalities and the attributes of the patent ascertained only by expensive litigation.

The law of 1793 gave trouble from the start. Questions of originality, duplication of patents and grant of frivolous patents became insistent. Courts were overwhelmed with litigation, and determination of infringement suits became matters of perplexity and confusion. Daniel Webster, in 1824, presented legislation to help relieve the burden of the patentees in the matter of costs in infringement cases, declaring in the course of the debate that a patent was evidence of property-that invention was the fruit of a man's brain; that industries grew in proportion to invention; that therefore the Government must aid progress by fostering the inventive genius of its citizens. As befits the largest figure of his time, he had the same views of the relation of invention to progress, the same prophetic vision, and the same desire to promote invention through perfecting the patent system, as had his notable predecessors, Franklin, Washington, Jefferson, Hamilton and Madison.

The failure of the law of 1793 to work out its designed purpose became more and more evident as the evils which arose under its application became more and more pronounced. Investigations of the Patent Office and the system, by the Secretary of State, the President and Congress, follow in almost endless succession. Finally, John Ruggles, who had recently been elected to the Senate from Maine, on December 31, 1835, moved that that body appoint a committee to take into consideraion the condition of the Patent Office and the laws relating to the issuing of patents. Senator Ruggles was appointed the chairman of the committee, which made its report on April 28, 1836, and at the same time submitted a bill for the reorganization of the Office.

Senator Ruggles, in making this report to the Senate, speaking of the practical operations of the law of 1793 and its effect upon inventors and the public, said:

"Under the act referred to, the Department of State has been going on, for more than forty years, issuing patents on every application, without any examination into the merits or novelty of the invention. And the evils which necessarily result from the law as it now exists

must continue to increase and gress shall put a stop to them. lows:

multiply daily until ConSome of them are as fol

"1. A considerable portion of some of the patents granted are worthless and void, as conflicting and infringing upon one another, or upon public rights not subject to patent privileges, arising from either a want of due attention to the specification of claim, or from the ignorance of the patentees of the state of the arts and manufacures, and of the inventions made in other countries, and even in our own.

"2. The country becomes flooded with patent monopolies, embarassing to bona fide patentees, whose rights are thus invaded from all sides; and not less embarassing to the community generally, in the use of even the most common machinery and long known improvements in the arts and common manufactures of the country.

"3. Out of this interference and collision of patents and privileges, a great number of law suits arise, which are daily increasing in an alarming degree, onerous to the courts, ruinous to the parties, and injurious to society. "4. It opens the door to frauds, which have already become extensive and serious. It is represented to the committee that it is not uncommon for persons to copy patented machines in the model room; and, having made some slight immaterial alterations, they apply in the next room for patents. There being no power to refuse them, patents are issued of course. Thus prepared, they go forth on a retailing expedition, selling out their patent rights for States, counties and townships, to those who have no means at hand of detecting the imposition, and who find, when it is too late, that they have purchased what the venders had no right to sell, and which they obtain thereby no right to use. This speculation in patent rights has become a regular business, and several hundred thousand dollars, it is estimated, are paid annually for void patents, many of which are thus fraudulently obtained.

"In this collision and interference of patents, the original and meritorious inventor sees his invention, to the perfection of which he has devoted much time and expense, pirated from him, and he must forego the reward which the law was intended to secure to him in the exclusive right it grants, or he must become involved in nu

merous and expensive lawsuits in distant and various sections of the country to protect and confirm his rights. If he be wise he will generally avoid the latter and submit to the former alternative of injustice, to which the Government, as the law now is, makes itself accessory. The practice is scarcely less reprehensible of taking out patents for what has long been in public use, and, what every one has, therefore, a right to use. The patentee in such cases being armed with the apparent authority of the Government, having the sanction of the highest officers, the seal of the state, scours the country, and, by threats of prosecution, compels those who are found using the thing patented to pay the patent price or commutation tribute. This exaction, unjust and iniquitous as it is, is usually submitted to.

"The extent of the evils resulting from the unrestrained and promiscuous grants of patent privileges may be imagined when it is considered that they are now issued, since this year commenced, at the rate of more than a thousand a year; a considerable portion of which are doubtless void for want of originality in the inventions patented, either in whole or in some of the parts claimed as new.

"A necessary consequence is that patents, even for new and meritorious inventions, are so much depreciated in general estimation that they are of but little value to the patentee, and the object of the patent laws, that of promoting the arts by encouragement, is in a great measure defeated.

"To prevent these evils in future is the first and most desirable object of a revision and alteration of the existing laws on this subject. The most obvious, if not the only means of effecting it, appears to be to establish a check upon granting of patents, allowing them to issue only for such inventions as are in fact new and entitled, by the merit of originality and utility, to be protected by law. The difficulty encountered in effecting this is in determining what that check shall be, in whom the power to judge of inventions before granting a patent can safely be reposed, and how its exercise can be regulated and guarded to prevent injustice, through mistake of judgment or otherwise, by which honest and meritorious inventors might suffer wrong."