GEORGE ALEXANDER NIXON. The Patent Office has suffered another irretrievable loss in the sudden death of George A. Nixon, Principal Examiner, Division 13, on Saturday November 30, 1924. Mr. Nixon officiated at his desk in his usual even judicial temper apparently in good health on Tuesday, November 25, meeting his fellow-examiners in a happy and cordial frame of mind. He appeared to be recovering rapidly from former inroads upon his health and all of his neighbors and friends in the Office were hopeful of the privilege of a continuation of the enjoyment of his friendly official and social companionship for many more years to come. One of his fellow-principal examiners, accompanying him home on Monday evening noted an exceptional elasticity in his step for a man of his age. However, a cold followed by pneumonia taken on Tuesday night acted with fatal suddenness upon his physical constitution. Mr. Nixon was born in Covington, Kentucky on March 20, 1857, son of John S. and Mary Clemens Nixon. He obtained his grammar school and secondary education in the public schools of his native city and at Chickering Institute in Cincinnati, Ohio, and his professional training in Civil and Mechanical Engineering at Rensselaer Polytechnic Institute, Troy, N. Y., and Lehigh University, Bethlehem, Pa., with the class of 1878. His father's death while at Lehigh in 1877 prevented his graduation at that institution. At Lehigh he was a room-mate of Mr. Robert Read, well known in the Patent Profession. After leaving the University he spent some time in his professional capacity in Manitoba, Canada, and in Northwestern United States, the latter period having been in the service of the Chicago, Milwaukee and St. Paul Railway Company. Before coming to Washington he was engaged for a short time in editorial work on the "American Volunteer" at Carlisle, Pa. He entered the Government Ser vice in the Post Office Department in 1883 and on July 16, 1884 was appointed a Fourth Assistant Examiner in the Patent Office, having risen through the grades to Principal Examiner on Nov. 8, 1901, thus completing a total service in the Patent Office of over forty years. Mr. Nixon's contribution to the development of the metal working arts for the past fifteen years is difficult to estimate. His record in the able, conscientious, and thorough treatment of thousands of applications involving great and important advances in these arts is a monument too great to be expressed in marble or granite. Its importance can be measured only by the countless benefits conferred upon mankind by the added comforts of civilized life, in the development of these arts by the genius of invention. In 1888 Mr. Nixon married Miss Dorothy M. Newton of Washington, D. C., who survives him. He is also survived by two brothers, Willard D. and Edward M. Nixon of Cincinnati, Ohio, and four sisters, Misses Dora, Emma and Mary S. Nixon of Washington, D. C., and Mrs. Franklin T. Chamberlin of Brooke, Va. N. J. B. SHALL ONE APPEAL IN THE PATENT OFFICE By L. D. UNDERWOOD, of the Washington Bar The Secretary of the Interior has recently appointed a committee to make an investigation of the Patent Office with a view to expediting the work of that Bureau. A great volume of work has accumulated there because the office force provided by Congress was for years inadequate to meet the steadily increasing demands made upon it. Among the remedies suggested with the above end in view is a simplification of procedure in the matter of appeals. It may be said at the outset that any change in this respect will not greatly reduce the volume of work on hand, but it may be made one of the contributing factors. There are now two appellate tribunals in the Patent Office the examiners-in-chief and the Commissioner. After an adverse decision by the Commissioner an appeal may be taken to the Court of Appeals of the District of Columbia. If not successful there the unsuccessful party may file a bill in equity in one of the United States District Courts, from which an appeal may be taken to the Circuit Court of Appeals of the district. where the suit was instituted, or again to the Court of Appeals of the District of Columbia in case the original bill was filed there. It is not proposed to discuss here these extraordinary remedies, but they are referred to as having a bearing on the extent to which it may be advisable to carry appeals in the Patent Office. That one of the appeals in the Patent Office should be abolished seems obvious enough, even though the remedies beyond the Office be also curtailed. There are five examiners-in-chief, any three of whom may constitute a board of appeals to review the adverse actions of the examiners. The statute prescribes that the examiners-inchief shall be men of legal and scientific ability. If an interested party is not satisfied with a decision of the examiners-in-chief he may appeal to the Commissioner in person. The Commissioner is also a man of legal and scientific ability. But it is at once seen that an appeal from a board of three competent men to one, however competent he may be, is an anomaly in the organization of reviewing bodies. Such an anomaly would probably never have been introduced into the patent system except for the desire of the legislature to keep all final authority in the head of the Office. If we look to the organization of the courts, state or federal, for a guide, we shall see that the court of original jurisdiction generally consists of one judge, who alone passes upon the law and the facts in equity cases, and upon the law in suits at law. The appellate court generally consists of three judges who are selected, as a general rule, because of their marked attainments in the law. When an appeal is taken to such a reviewing body the litigant has the benefit of a hearing and judgment by the majority of the court; and it accords with human experience that such a judgment is more likely to be correct than an opposite decision of the trial court. It is well known that there have been times in the history of the Patent Office when the Commissioner of Patents was selected, not because of any special fitness for his task, but from political considerations. In later years, while the position of Commissioner has been considered a political appointment, the appointing power has been exercised with due regard to the task to be performed. But it matters not whether the Commissioner be all that the position demands; it seems clear enough that there should not be an appeal from three competent men to one, however well he may be fitted for his obligations. If one appeal is to be abolished shall (1) the present organization be retained, making all questions relating to the merits final with the examiners-in-chief, from which appeal may be taken to the court, leaving the Commissioner a mere administrative officer, or, (2) shall another organization be provided? If the first plan be adopted the relation of the examiners-in-chief to the Commissioner would be quite similar to that existing between the Commissioner and the Secretary of the Interior. The statute (sec. 481 R. S.) now provides that: "The Commissioner of Patents, under the direction of the Secretary of the Interior, shall superintend or perform all duties respecting the granting and issue of patents," etc. Other statutes provide certain duties to be performed by the Commissioner. Thus it is seen that while the statutes charge the Commissioner with certain duties and confers upon him certain powers, he is still "under the direction of the Secretary of the Interior." In view of these statutes it was uncertain to what extent the authority of the Commissioner was final and as to what matters he might be controlled by the Secretary of the Interior. Within the last 25 years many appeals and petitions were taken to the Secretary. In Butterworth v. Hoe, 29 O. G. 615, 112 U. S. 50, the Secretary had directed the Commissioner to issue a patent to one of two interfering parties after the Commissioner had decided that the other was the prior inventor and entitled to the patent. The appeal to the Secretary had been taken under rule as prescribed by him. But the Supreme Court decided that the decision of the Commissioner on the question of priority was an exercise of his quasi-judicial power, as to which he was not subject to direction by the Department head. Doubtless it seems rather strange to us now that such a view should ever have been entertained. It is related here to emphasize the point that, if the decisions of the examinersin-chief were made final, there would arise many uncertainties and conflicts as to the respective powers of the appellate body and the Commissioner. If by statute the decision of the examiners-in-chief were made final the scope of their authority would have to be defined. If it were to be provided that they were clothed with authority to consider all questions relating to the merits, the question would at once arise, what is a question of merits? To illustrate how difficult it is to decide between merits and form, attention need only be called to the decision of the Supreme Court in Steinmetz v. Allen, Commissioner of Patents, 192 U. S. 453, 109 O. G. 549, in which it was held that the question of division was one of merits, although throughout the history of the Patent Office it had been considered one of form. The line between quasi-judicial and administrative matters is similarly incapable of clear demarcation, and this would offer no better division of authority. An examination of the decisions noted in the margin will show the conflict of authority between the Commissioner and the Secretary.* If it should be attempted to make a certain question final with the examiners-in-chief, subject to the supervisory power of the Commissioner, there would be continual pressure upon him and attempts to secure review, |