Chart No. 11 is submitted, not as statistically complete, but as accurately depicting a trend. Substantially the same trend is shown by Chart No. 2.2 The reports of the Commissioners of Patents throw some light on the subject: In 1880, Commissioner Marble was disturbed by this condition in the Patent Office:

"Some of the examining divisions are several months behind with their work, which accounts in some measure for the proportionately less number of patents granted as compared with former years, many of the applications filed during the year remaining undetermined at its close. This is a serious difficulty, because inventors as a class are impatient of delay."

In 1900 Commissioner Duell reports that 75% of the patents granted issue within one year.

In 1913 Commissioner Ewing reports that applications are in the Office two

years on an average.

Mr. W. D. Shoemaker is responsible for the following figures:

The patents from which the data to plot Chart No. 2 was obtained are listed at the end of this report. They were obtained from a number of sources. It is believed that the list is thoroughly representative of the important patents issued during the periods indicated. The average for the decade ending in 1930 may be attacked on the ground that too few patents are included in the study and too many of them are aggravated cases of long pendency. This may prove to be a fair criticism. It is, however, a difficult matter to ascertain what are the important patents among those so recently issued. It is quite likely that a more liberal selection would reveal a lower average of pendency, possibly seven years or eight years, instead of nine or ten. But it is not believed that any representative selection of important patents will do other than confirm what this curve shows-that the length of time important patents are pending in the Patent Office is much greater than the average,-the data available indicates they are pending two or three times as long; and that that length of time is rapidly increasing.

The Court of Appeals of the Seventh Circuit in the recent litigation on the Cowles patent 1,103,567, accurately depicted the situation in a decision, later withdrawn, from which the following is quoted:

one.

"This tendency to thus extend the monopoly period seems to be a growing Not how promptly may a patent be secured, but rather how long may the proceedings in the Patent Office be extended, seems to be the 'preferred' mode of procedure. And this is particularly true if the patent is to be operable in a rapidly developing art. During the pendency of the application, the inventor enjoys, to a limited extent the privileges and advantages arising from his 'patent applied for' notices and warnings. When demand for the article is established, he presses his application, and a patent issues. Frequently, amendments to the claims and specifications appear several years after the original application is filed, and strangely enough, these amendments particularly fit some other devices or combinations that have just appeared on the market and give promise of extensive use.'

Is it not fair to draw the following conclusions from the facts presented? 1. The evil of the long pending application has its roots deep in the history of the patent system.

2. The abuse is more prevalent now than ever before.

3. Remedies previously applied have proven utterly inadequate. Is it not also proper to deduce that the criticism of the patent pool springs largely from the great prevalence of the long pending patent application evil? It is true the United States Supreme Court has approved the principle of the patent pool, but this will not save it from attack in Congress. There can be no question but that the long pending patent application greatly aggravates the condition complained of. A seventeen year monopoly as a reward for invention is accepted as desirable for the general welfare, but is it accepted that a pool of patents, some of which may have been pending in the Patent Office anywhere from

Supra, p. 709.

Supra, p. 710.

five to twenty-five years, really promotes the progress of science and the useful arts and is a benefit to the country?

In 1925 Mr. Arthur C. Fraser, of New York, then Chairman of the Section of Patent, Trade-Mark, and Copyright Law of the American Bar Association, addressed the members on the subject of Patent Law Reform in these words:

"For many years the general feeling in our profession was adverse to any suggestion for amendment of the patent laws. The idea prevailed that if we were to start something in this direction, it would be seized upon by the enemies of patent monopolies and made the occasion of legislation which would seriously injure our patent system. I long shared that opinion; but I now have reached the view that the growing evils which have become excrescences upon our patent system must be abated or the system itself will be in danger. It is better that it be amended at the instances of its friends than left to the tender mercies of its enemies."

Is it not time that the patent profession put its own house in order whether by changes in the Rules of Practice or in the Patent Statutes? Prepared and distributed by the

PATENT SECTION OF THE GENERAL MOTORS CORPORATION.

DETROIT, MICHIGAN, May 26, 1931.

The important patents upon which Chart No. 21 is based

The important patents upon which chart No. 2 is based—Continued

Patent

No.

The important patents upon which chart No. 2 is based-Continued

1,507, 017

DeForest.

1,527, 556

Kadow

1,527, 557

Kadow.

Glass Blowing Machinery.

Radio Tube.

June

Feb.

1, 1926 26, 1929

8 yrs. 3 mo.

3 yrs. 10 mo. 5 yrs.

EXHIBIT No. 111

PROPOSED PATENT LEGISLATION-WHY IT IS NEEDED, THE ADVANTAGES OF THE PROPOSED LEGISLATION AND THE OBJECTIONS TO IT

[By GEORGE H. WILLITS In collaboration with a number of other members of the Michigan Patent Bar]

THE PATENT SYSTEM

The inventor tells what he has invented by filing in the Patent Office a written description of his invention, illustrated with drawings. He is also required to define in accurate language just what it is that he has invented. His definition

of the invention constitutes the claims of the patent. The following statement regarding claims made by the Supreme Court in 1882 is just as true now as it was then:

"Those who have any experience in business at the Patent Office know the fact, that the constant struggle between the office and applicants for patents has reference to the claim. The patentee seeks the broadest claim he can get. The office, in behalf of the public, is obliged to resist this constant pressure.'

After the patent issues, the inventor is held with more or less strictness to be limited in his monopoly to what is defined in the claims. If after taking out his patent he finds he has made a mistake in the claims he can correct it by reissuing his patent if the claims are not broad enough or by reissuing or disclaiming if the claims are too broad. However, if he wants to broaden his claim to cover constructions that did not previously come under it, he must be prompt about correcting it. As a reward for telling the public about his invention, Congress grants the inventor the right to prevent others from using the invention for a period of seventeen years from the date of grant.

From the beginning of the patent system it was recognized that several inventors may seek patents on the same thing and Congress has provided that the Patent Office shall decide who is the first inventor and issue the patent to him. Under this authority the extremely technical and elaborate interference practice has been developed.

CONGRESS HAS ABSOLUTE AUTHORITY IN PATENT LEGISLATION

This authority is derived from the Constitution which provides that Congress has power to promote the progress of science and useful arts by securing for limited times to inventors the exclusive right to their discoveries.

Most attempts to get the Courts to correct abuses in the patent system by judicial legislation are met by statements that the matter is entirely within the control of Congress. This was exactly the position taken by the Supreme Court in the case of Överland Company v. Packard Company, 274 U. S., 4Ì7.

ABUSES OF THE PRESENT PATENT SYSTEM

1. Holding applications in the Patent Office for years and years

The inventor almost always wants to get his patent out promptly. Until he gets his patent he finds it practically impossible to get anyone to put money into the new enterprise. The inventor wants to get his patent quickly, interest capital, and supply the public with the new invention. Often he cannot get his patent out because he is tied up by interference proceedings. This cause of delay will be treated later.

Besides serving the bona fide inventor, the patent system affords excellent opportunity for those who wish merely to speculate in paper patents. This is best done by filing applications for patent on devices that you do not intend to make and sell, but that you think are in the line of future development, and then lying in wait for the inventor who combines with a complete and practical invention the energy to build and market it. Before the judicial legislation in Miller v. Brass Company, 104 U. S., 783, the patent speculator used to buy up issued patents and reissue them with broadened claims to cover inventions developed by others in the meantime. It is very easy to find similarities between dissimilar things if you have the two things before you and strain your imagination to find the similarities. You will recall the sto y of the three blind men examining the elephant. One felt his trunk and contended he was like a snake; another examined his tail and compared him to a piece of rope; and the last grasped his leg and likened him to the trunk of a tree. The blind men could not have made these claims without previous knowledge of the shape and feel of the snake, the piece of rope and the tree trunk. The patent speculator who bought a new article on the market and compared it carefully with prior patents was almost always able to find one prior patent that had sufficient farfetched similarity to the new article so that he could reissue the patent and obtain broad claims to cover the new product. The Supreme Court remarked in the above case that

"patents have been so expanded and idealized, years after their first issue, that hundreds and thousands of mechanics and manufacturers, who had just reason to suppose that the field of action was open, have been obliged to discontinue their employments, or to pay an enormous tax for continuing them."

The Supreme Court put a stop to this practice by judicial legislation. The Court held that you can't correct your patent by reissuing it with broader claims unless you apply for reissue within two years from the date of grant. This is purely court-made law. The court so ruled because Congress failed to correct

the abuse by legislation. By keeping patent applications in the Patent Office a long time the patent speculator can now do the same thing that he could formerly do by reissue. He can file great numbers of applications. He can keep them pending in the Patent Office by amending his application at the last minute, deliberately avoiding final action by the Examiner. He can then watch the market sharply for the appearance of new products, purchase samples of them, and make minute comparisons of the new products and his pending applications to find any imaginable similarities that may exist, and draw claims on those similarities. Or he may have broad claims in the application all the while, refraining from taking out the patent for any one of a number of reasons: Thus he may observe that his patent rights are being respected as it is, and see no need of securing the immediate issuance of his patent. Obviously the longer he can keep his patent pending the longer will his monopoly extend. Or he may conclude that the development is ahead of its time and lie in wait with his patent while more energetic business men create a market for it.

This is what Selden did with his patent on the use of a clutch in an automobile. In this famous case, Columbia Motor Car Company v. C. A. Duerr and Company, 184 Fed., 893, the court said:

"This patent was applied for in 1879 and granted in 1895. For over 16 years the application lay in the Patent Office and the applicant took full advantage of the periods of inactivity permitted by the rules and statutes. It is apparent that he delayed just as long as possible the issue of the patent to him. During this long time the automobile art made marked advances along different lines, and when, in 1895, the patent was granted, it disclosed nothing new. Others had then made the patentee's discovery and had reduced it to practice in ignorance of what he had done. While he withheld