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with probably a new line of decisions dealing with what would thus be reviewed and what would not; also much dissatisfaction and charges of favoritism by those who were unsuccessful. This plan would also have the disadvantage of reducing the prestige of the position of the Commissioner as head of the bureau, thus reducing the probability of securing competent men for the position. If all power of supervising the decisions of the examiners-in-chief were taken away, the unique situation would be presented of the head of an office who could not control its important function. The Commissioner would then be only an administrative officer with uncertain powers. It is believed that such a plan is both unwise and impracticable.

Should, then, the examiners-in-chief as an appellate tribunal be abolished, and all appeals be taken to the Commissioner? Yes, with modifications of practice. What is needed is a review of the examiner's decisions, not by one man alone, but by at least three men, in all vital questions. The unusual suggestion is here made that the examiners-in-chief be made assistant Commissioners, the present assistant Commissioners being made, respectively, First and Second Assistant Commissioners, who would in turn succeed to the position of Commissioner in case of his absence or disability, as provided by sec. 178, R. S. However, as the chief clerk of the Bureau is eligible to the position under certain circumstances, this point may require some further attention. All petitions or appeals would then be taken to the Commissioner-a simple procedure. As the Commissioner may, under the present law, delegate his authority to one of his assistants, he may likewise delegate it to two or more of them. When an appeal is taken to him he might therefore direct the appeal to be heard by three of his assistants, or it might be heard by him and two of his assistants. If three of his assistants were directed to hear the appeal, they would review the case and report their conclusions to him. It seems probable that after such a consideration the Commissioner would wish to

If the question re

adopt that conclusion as his own. viewed were a close one, there might be two of one opinion and the third of another opinion. It would then be within the Commissioner's power to adopt either viewpoint, and if he favored the dissenting opinion, the situation of a divided court would be presented, which ordinarily should result in an affirmance of the decision reviewed, but might be otherwise as the Commissioner should think best. This would be a different result than that which ordinarily attends a review by a tribunal composed of three members; but it is believed that it would result in securing justice, all in all, better than could be secured in any other way, under the circumstances. It would not be practicable to make the conclusion of the majority of this body binding upon the Commissioner, because there would then be a separate tribunal, such as the examiners-in-chief above considered, whose scope and authority would necessarily have to be defined by statute, and the same resulting conflict would ensue.

Under the proposed plan the Commissioner might assign the various questions to his assistants in any way to insure just and expeditious results. The procedure would be very simple, as it would be immaterial whether the paper which sought review should be called a petition or an appeal, and would make for economy for both the applicant and the Office in time and expense. The procedure would necessarily have to rest upon an understanding of the intention of the legislature that the new organization was provided with the above ends in view, -the principal one of which would be that on appeal to the Commissioner there should be a thorough review of vital questions by three competent men whose decision. should be the decision of the Commissioner unless there should be some extraordinary reason for doing otherwise. This system would also be more flexible-capable of meeting efficiently any changes which might arise. Doubtless the objection will be made that this plan places too much power in the hands of the Commissioner, but such an objection has no real foundation, for every act

done in the Patent Office is now subject to the direction of the Commissioner but in a different way. As a matter of fact it would be a moral limitation of his power, which, if not faithfully carried out according to the intention of the legislature, would be a proper subject for remedial measures by the Secretary. By this plan the procedure would be simplified in many ways, illustrative of which comparison might be made of its directness in the situation presented by present Rule 139 with the complexity which arises under the present practice. It would save all the present reviewing work of the Commissioner in patent cases on matters relating to the merits, as all such cases must first be considered by the examiners-in-chief; consequently more time could be given to this work, if necessary, and time be left for the consideration of other matters.

To those who may raise the objection that by dispensing with one appeal the inventor has lost a chance to secure a favorable decision, it is replied that reviewing bodies are not created for the purpose of affording "chances" to secure a favorable decision, but only for the purpose of giving consideration and judgment by a thoroughly competent body, in order that any initial errors may be corrected; when such consideration is given, as contemplated by the plan proposed, justice will have been served.

*Butterworth v. Hoe, 29 O. G. 615, 112 U. S. 50; Bernardin v. Duell, 86 O. G. 995, 172 U. S. 576; Davis v. Garrett, 112 O. G. 578 (1904); Knight v. Bagnall, 176 O. G. 1115; Warner v. Stimpson, 78 O. G. 1901 (1897); Petithomme v. Bedbury, 52 O. G. 605 (1890); Edison v. Edison, 9 O. G. 403 (1876); Houston v. Barker, 44 O. G. 697 (1888); Poole v. Avery, 87 O. G. 357 (1899); Casey, 101 O. G. 2567 1902); Daniels v. Morgan, 67 O. G. 811 (1894); Commissioner of Patents v. Whiteley, 4 Wall 522 (1866); Hunt, 13 O. G. 771 (1878); Workman v. McNaught, 16 O. G. 220 (1879); Manske & Co., 63 O. G. 1687 (1893); Noakes, 66 O. G. 575 (1892); Jenkins v. Armat, 78 O. G. 1902 (1897); Maconochie Solderless Tinning Co., 99 O. G. 1173 (1902); Faller v. Lorimer, 111 O. G. 579 (1904); Blackmore v. Hall, 120 O. G. 1477 (1906); Wurtz( 123 O. G. 320 (1906); Wenzelman v. Overholt, 123 O. G. 995 (1906); Dukesmith v. Corrington, 126 O. G. 3425 (1907); Lambert, 135 O. G. 1584 (1908); Dunkley v. Beekhuis, 158 O. G. 886 (1910); Wedderburn v. Bliss, 83 O. G. 296 (1898); Robertson, Commissioner v. Baff, 285 F. 911 (1922); Church, 82 O. G. 1987 (1898).

PATENTS UNDER THE INTERNATIONAL
CONVENTION.

by

EMERSON STRINGHAM.

Introductory.

During the year 1925 there is to be held at the Hague, a convention of delegates from about forty countries, to revise the Washington Convention of 1911. The occurrence of this gathering makes it worth while to present, in brief form, a history of the earlier meetings.

European patent laws usually provide for granting patents to the first applicant and usually make patents invalid if they were published anywhere, prior to the application. Consequently it was necessary, in the days before the convention, for inventors to have their applications filed in every country in which they desired protection before they obtained the patent in any country. Frequently they failed to accomplish this, and consequently lost their protection in various countries. To prevent this deprivation of protection seems to have been the dominant purpose of the convention. Other purposes will be developed in connection with the detailed discussion of the treaties.

History prior to 1911.

The international aspects of patent protection received attention earlier than 1854 (Myers, 1922: 504), but the earlier activities were of restricted scope, and the United States seems to have taken no part in them. In connection with the Vienna Exposition of 1873 a meeting was held to consider patent matters. The Austrian govern

ment refused to recognize this congress as official and it became an informal gathering of persons prominent in patent matters. The President had commissioned John Marshall Thatcher, Assistant Commissioner of Patents, to represent the United States, and he participated in the gathering; a sketch of his life will be found in the Journal of the Patent Office Society for August, 1920. Several other Americans also attended.

The resolutions adopted by the Vienna gathering were mostly of a routine character but the suggestion for compulsory licensing, at rates to be fixed by some governmental agency, aroused opposition. In view of appeals for moral support from America which have been made in recent years, one paragraph written by one of the Americans present at this meeting, has almost contemporary interest. Referring to the proposal of compulsory licensing he says:

Those who sustained the original proposition had a large majority, and nothing but their feeling that they needed the moral support of the Americans had prevented them from passing the clause long before. (29 Scientific American 356).

Two of the Americans finally voted for a compromise resolution on this matter, but the others opposed it to the end. Thatcher made a report to the Secretary of State, but the writer has not seen a copy of it.

Among the voeux (recommendations or wishes) laid before the Washington conference of 1911, there is a single one from 1873, which had been repeated at Paris 1878. Translated, it is as follows:

In view of the great diversity of existing laws on the subject of patents for inventions, and the changes in the present international commercial relations, it is urgently important that the governments seek, at the earliest possible date, to achieve an international accord on the protection of industrial property (patents for invention). (Actes, 1911: 358).

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