most frequently is that it would encourage the filing of hastily prepared, and therefore, faulty patent applications. Simply by way of suggestion there is submitted herewith a proposal which might meet this particular objection to the European system.

Instead of accepting this system outright the present suggestion is to accept it with a modification under which the first to file would be treated as the prior inventor, but the filing date might be projected backward to the filing of a sort of provisional specification which is hereinafter called a "caveat." It will be observed that this so-called caveat is entirely different from the instrument known by the same name and formerly used in United States patent practice.

The suggestion involves the charging of a nominal fee of one, two or five dollars for the filing of a sketch, print and/or description of the invention, fully or partially developed. In other words any one could file such a caveat even if it disclosed little more than an idea, with no practical method developed for carrying it into effect. These caveats are to be filed in a division organized for that purpose and given a date and serial number but no further attention being paid to them at the time of filing. In the normal course, assuming that no other copending application claiming substantially the same invention appeared during the pendency of an application or during the first two years of the patent, the caveat would serve no useful purpose. However, if during such time another application is filed then the caveat can be called for to prove invention at the date of the filing of the caveat provided that the application is filed within a reasonable time after the filing of the caveat, say, one year, possibly allowing a renewal for a shorter period upon the payment of an additional fee, in which event the application would be entitled to the date of the original filing of the caveat as to all sufficiently disclosed common subject matter.

The above suggestion would require the filing of a complete application within the specified time to entitle an

applicant to the benefit of the caveat date, and if not filed within that time then the particular caveat would be of no value for interference purposes but would not preclude the filing of a subsequent caveat in which event the second date only would be available for interference purposes.

The caveats whether available for interference purposes or not would be available as substitutes for affidavits under Rule 75.

Whenever two or more applications or an application and a patent are adjudged to contain interfering subject matter, then the one having the earliest filed caveat would prevail and if two or more caveats are filed on the same day then the first filed complete application woulo prevail. If both the caveats and applications are filed on the same days then other evidence could be admitted or the one having the most fully developed disclosure in the caveat, would prevail.

It will be noted that such a system would involve no work on the part of the office, unless and until a prospective interference developed or its availability under Rule 75 was urged, except as regards the mere filing of the caveat. Consequently the suggestion involves little more than providing a government agency for the reception of evidence which would require no proof other than that afforded by the filing date and serial number.

The so-called caveats and British Provisional specifications would have something in common but the caveats would not have to be filed in duplicate. A fair description would not be necessary and furthermore they would not normally be used or examined in connection with the complete applications and the filing date of the said complete application would not be the filing date of the caveats.

THE BUSINESS OF THE SUPREME COURT

A STUDY IN THE FEDERAL JUDICIAL SYSTEM.

By

FELIX FRANKFURTER.

(Note: The following is a reprinting of a portion of the above entitled article which appeared in a recent number of the Harvard Law Review. It is of interest since it pertains to patent matters. Professor Frankfurter states that this will form part of a forthcoming book).

The history of the movement to create a special court for patent litigation presents a striking contrast to the story of the Commerce Court. The problem of fashioning judicial machinery appropriate for railroad cases has been only one of the many tense political and economic issues in which "the railroad problem" is involved. Projects for a patent court have never been entangled with dominant political issues; they have not touched popular thought or feeling. The movement is professional in origin and largely so in interest. Its advocates, as well as its opponents, have been, for all practical purposes, members of that very restricted fraternity, the patent bar.

Patent law is not rooted in the ancient traditions of the common law, and its equitable remedies have a comparatively recent lineage. Equity was rarely invoked to protect patent rights138 before the Act in February 15, 181913 specifically provided injunctive relief. By the Patent Act of 1836 patent litigation was in effect turned over to the United States courts.140 The stuff of this legal business is thus peculiarly federal in character.111

Early English and American cases are collected in Chafee, cases on Equitable Relief against Torts, 67.

139 3 Stat. 481.

140 Act of July 4, 1836, § 17, 5 Stat. 117, 124.

141 For the statutory history of the jurisdiction of the federal courts in patent contro ersies. see Root v. Railway Co., 105 U. S. 189, 191-194 (1881); Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 19-24 (1895).

The inventor's rights are determined by Congress; they are interpreted and enforced through the federal judiciary. Moreover, the content of patent law is extremely technical in character. The layman knows little and cares less about patent controversies. Juries are seldom brought in contact with its issues.142 The legal profession has generally abandoned patent litigation to a specialized group of men whose legal equipment is supplemented if not by scientific training and aptitude, at least by understanding of the mechanical arts.143 "The distinguishing quality" in Lord Moulton's commanding position as a pateni lawyer, we are told by his son and biographer, was "his extraordinary capacity for scientific thought, even in fields wholly new to him.'14 In fact the "law" of patent law is not its major or most dificult part. The average patent case, according to a judge extensively versed in patent litigation, requires "the careful study of intricate machinery, the manipulation of models, the reading and re-reading of technical evid, ace, the elaborate comparison of documents couched in language which certainly is not that of common speech, the close, hard thinking, sometimes prolonged for weeks. Here is nothing to ignite popular imagination. Devising judicial machinery and legal procedure fitted for the enforcement of patent rights inevitably becomes the specialized concern of those professionally engaged in this most technical of the "federal specialties."

99145

The effective disposition of patent litigation thus presents its own special problems of personnel and procedure. The scope and method of proof, the element of time, the range of recoverable damages and the mode of

11 "During the 11 years the writer has sat on the circuit bench, there has not been in this court a single jury trial in a patent cause.' Lacombe, J., in Wyckoff v. Wagner Typewriter Co.. 88 Fel. 515, 516 (C. C. S. D. N. Y., 1898-, quoted in Chafee, op. cit. 70.

11 See Hand, J., in Parke-Davis v. Mulford, 189 Fed. 95. 115 (C. C. S. D. N. Y., 1911).

144 Moulton, Life of Lord Moulton, 38. His researches in electricity won Moulton an F. R. S. Ibid. 105, 114.

145 Lacombe, J., in Wyckoff v. Wagner Typewriter Co., supra, at 516.

147

'heir ascertainment have distinctive phases in patent litigation.116 Also, the most telling adjudications of patent controversies call for judges of special intellectual bent. Federal judges have not often had much exexperience at the patent bar. Their equipment for patent business must come through study of bewildering records in isolated cases, enlightened by the conflicts of partisan counsel and partisan experts. On the other hand, narrow technicalities must be corrected by applying in adjudication the broad considerations of policy underlying patent legislation; patent rights must be enforced as part of a general system of law, particularly of equitable doctrines invigorated elsewhere than in patent soil. In patent cases, as in others, a judge must have the philosophic insight which penetrates the particular to its general aspects.148

Dissatisfaction with processes of patent litigation fashioned in the primitive, agricultural days of the couutry was bound to manifest itself through the patent bar as soon as the increase of modern inventions began to reflect itself in the courts. The great economic impulses after the Civil War stimulated, and were intensified by, the powerful forces of invention beginning with the seventies. Up to the close of the year 1870 there had been taken out. since the United States began. 120.573 patents; from 1870 to 1911 there were issued 1,002,478 patents. We have seen the stark inadequacy of the federal judicial organization of the seventies to master the demands made upon it by the stupendous growth of the country's business. Programs for radical revision of the federal judiciary were in the air. What more

149

114 Cf., e.g., George P. Dike, "The Trial of Patent Accountings in Open Court," 36 Harv. L. Rev. 33.

Cf. Hand, J., in Parke-Davis v. Mulford, supra.

149 See, e.g., Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 (1917).

119 Frederick P. Fish, "Letters Patent in Relation to Modern Industrial Conditions." 38 Am. Bar Assn. Rep. 805, 821. In 1925 there were 82.215 patent applications. 13 Ann. Rep. Sec. Comm. 210.