EDMUND BURKE,

Commissioner of Patents, 1845 to 1849.

By N. J. BRUMBAUGH,

The second Commissioner of Patents was born at Westminster, Vermont, January 23, 1809. He studied law and was admitted to the bar in 1829, practicing at Newport, New Hampshire. He established the New Hampshire Argus and edited it for several years. He was elected as a democrat to the 26th, 27th and 28th Congresses, 1839 to 1845. Appointed Commissioner of Patents by President Polk May 5, 1845, he served ably and faithfully in this office until May 9, 1849, after which he became for a brief period associate editor of the Union in Washington, D. C., and later resumed the practice of law at Newport, New Hampshire, and Boston, Massachusetts. His death occurred at Newport, New Hampshire, in 1882.

At the beginning of his administration the examining force consisted of two principal and two assistant examiners, the principals being Charles G. Page and W. P. N. Fitzgerald, and the classes of invention were twenty-two in number.

In his first report to Congress, February 24, 1846, he urged legislation authorizing the Chief Clerk to act as Commissioner of Patents in the absence of the Commissioner, giving the Commissioner power to "enlarge the claim of the patentee" in a reissue, and reducing the fees required of foreign inventors. The Republic of Texas having become part of the United States, he urged Congress to provide for the transfer of the records of the Patent Office of Texas to this Office. This allusion to Texas is interesting as showing the wisdom of the founders of that great state in their appreciation of inventions and inventors.

In the report for 1846, the Commissioner says: "The operations of this Office during the past year prove, as the circle of every year proves, that the inventor is ever the benefactor of his race. His genius bestows its favors on all. The manufacturer, the mechanic, the agriculturist, the merchant, all are the recipients of the benefits which are ever flowing from his toils, energies, and some

times his great and sublime conceptions. No theme is more interesting for contemplation than this and there is none which more deeply impresses the mind with a sense of the continued and onward progress of society in the grand career of civilization."

This early Commissioner had occasion to criticise Congress in failing to provide for the necessary help to get off the work. "The Office is seven or eight months in arrear of its business and is daily becoming more and more embarrassed. Thus have I in five separate communications to Congress and its appropriate committees within the last two years made full expositions of the embarrassed condition of this Office growing out of its greatly increased and increasing business and the inadequacy of its force to perform its duties."

On May 27, 1848, the salary of the principal examiners was raised from $1500 to $2500 and that of the assistants from $1250 to $1500. Referring to the standard of the work performed by the examiners, he says: "The rigid examinations now made in the Patent Office with regard to originality and patentability of new discoveries and improvements result in the rejection of a much larger proportion of the applications than formerly when a less scrutinizing system of examination was pursued. The proportion of applications patented to those rejected is now about two to three, whereas formerly about half were patented."

One of the defects in the patent laws regretted by the Commissioner was the inadequacy of the protection to the patentee from "wilful infringers who are as bad as common thieves." "If his invention were not required to undergo a severe and critical examination in reference particularly to its novelty and originality at the Patent Office, there would be some propriety in making his patent merely prima facie evidence of title in suits for infringement. But after it has passed such an ordeal, one trial at least in a court of justice had in good faith upon the merits of the invention should be sufficient to establish its validity and secure to the patentee an undisturbed enjoyment of his property until the end of the term of his exclusive privilege."

Commissioner Burke had to dispose of the notable interference of S. F. B. Morse and Alexander Bain for

certain improvements in electric telegraphs. The history of the beginning of this interference is related as follows in the report of 1848: "It appears from the records of the Office that the application of said Alexander Bain was made April 18, 1848; and upon examination of his claim it was found that the before-mentioned claims could be admitted to patent, no invention of like character appearing in the public records of this Office, nor in any printed publication.". Before sending the application to patent, however, the "secret archives" were consulted and another interfering application was found.

Under appointment from President Polk, Chief Clerk Henry H. Sylvester was empowered to act as Commissioner of Patents in the absence of the Commissioner.

During his service in Congress Mr. Burke was an indefatigable worker in committee, but seldom spoke upon the floor of the House. He favored direct taxation and was an advocate of free trade. The only speeches he ever made in Congress were called forth by tariff matters. His first speech was in defense of New Hampshire; it was instigated by a speech of Representative Arnold, a Whig member from East Tennessee, who, in the course of debate on the tariff, made slighting and contemptuous utterances regarding that "sterile piece of earth." In a curious introductory apology for burdening the House with his remarks, Mr. Burke disclosed the small value he placed upon oratory and the high value he set upon work in committee, then launched into a truly eloquent tribute to the state he represented, and then marshalled an effective array of statistics comparing New Hampshire with Tennessee, and especially East Tennessee, to the disadvantage of the latter. At the close of his remarks Mr. Burke sent up to the Clerk's desk a story involving a one-time associate of Mr. Arnold in the Tennessee Legislature. The story described a speech, eulogistic of President Tyler and the State of Virginia, in which the orator placed Plymouth Rock and the Pilgrim Fathers in the "Old Dominion, the Mother of Presidents," and Burke insinuated that the incident was illustrative of the knowledge of historical facts to be expected from Tennessee legislators. This defense of New Hampshire aroused Mr. Arnold to such a degree that he indulged in a bitter and insulting personal attack upon Mr.

Burke, in which the House interfered and the debate was stopped only by a motion to adjourn. Mr. Burke's most important speech was upon the tariff, and exhibited painstaking care and an array of statistics gathered at great labor. He was also the author of a resolution admitting the Republic of Texas into the Union.

While Commissioner of Patents Mr. Burke made an able technical report on "Steam Boiler Explosions," published December 30, 1848, Senate Ex. Doc. No. 18. In 1846 he published a series of twelve important essays on "The Protective System Considered in Connection with the Present Tariff."

The agricultural reports begun by the Patent Office during Commissioner Ellsworth's administration grew to such popularity in Commissioner Burke's administration as to create demands for reprinting and excite the comment of Congress on the enormous number of requests for them. It was said on the floor of the House by Mr. Badger: "All I know upon the subject is that there is no book published which is more generally sought for by plain men, unconnected with politics, and from which, if we may suppose and presume they are adequate judges, they derive material assistance in the prosecution of their agricultural pursuits." Many other comments of a similar character were made in debate upon the proposition to reprint these reports in 1849.

The following tribute to the great work of the inventor shows Commissioner Burke to have been a worthy pioneer in a long line of able men who have honored this great office:

Many valuable and profitable discoveries in the arts are the result of a sudden and lucky conception in a happy moment; but most of them are the fruits of days and years of incessant toil, anxious and harassing thought and great pecuniary sacrifice. This toil, this mental effort and these pecuniary sacrifices establish a title to the patent which is their offspring, as sacred and irrefragable in the eye of justice as the title to his farm, his workshop or his merchandise, which a man has acquired by his labor, skill and economy. Some of the inventions of the last few centuries have burst upon the world with the brilliancy of the morning sun, changing the whole aspect of society and conferring incalculable benefits upon the human race.

DEBATE ON A BILL TO INCREASE FORCE AND SALARIES IN THE PATENT OFFICE.

Thirtieth Congress, First Session.

(Extracts from the Congressional Globe.)

December 29, 1847.

Senate.

Mr. Westcott (Florida), from the Committee on Patents and Patent Office, reported a bill to provide for additional examining clerks in the Patent Office.

January 4, 1848.

House.

Mr. Farrelly (Pennsylvania) reported bills to provide for additional examiners in the Patent Office.

February 1, 1848.

Senate.

The Senate proceeded to consider the bill to provide additional examining clerks in the Patent Office, etc. Mr. Westcott explained that the amendment was simply a substitution of the bill introduced in the House of Representatives, which was considered as more satisfactory than the bill which had originated in the Senate. *

The amendment was agreed to and the bill was reported to the Senate as amended. The amendment having been concurred in, the bill was read a third time and passed.1 February 8, 1848.

House.

Mr. Farrelly stated it was important that this bill should pass immediately.

Mr. Henley (Indiana) urged immediate action on the

1 This bill, among other provisions, provided for two additional examiners at $2500.00 and two additional assistant examiners at $1500.00. At that time the salary of examiners was $1500 and of assistants $1250.