Proposals for Improving the Patent System

SOME PROPOSALS FOR IMPROVING THE

PATENT SYSTEM

A. PURPOSES AND OBJECTIVES OF THE PATENT SYSTEM

Those who built the governmental structure under which we live were exceedingly wise, and they were particularly so when they created a strong patent system based on the Constitution. It has three great objectives:

First, it aims to stimulate both invention and the assiduous search for new applications of knowledge, which is the basis of invention. It does this by placing the inventor in a position to secure a reward.2

Second, it seeks to create conditions whereby the venture of funds to finance the hazardous introduction into public use of new devices or processes will be warranted. This is done by protecting the industrial pioneer for a limited time against the uncontrolled competition of those who have not taken the initial financial risk.3

Third, it aims to prevent the creation of an industry permeated by the intense secrecy with regard to its processes which characterized the medieval guilds and which can only retard the realization by the public of the benefits of scientific progress. This it does by extending a temporary monopoly to those who, in keeping with the American ideal of openness and frankness, will make a full disclosure of their new ideas so that they may be utilized to the full by those skilled in a particular art.*

Our early statesmen were fully on their guard against special privilege or the abuse of monopoly to the detriment of the interests of the public, and they had real reason to be as they viewed the industrial history of the countries from which they or their forebears had come to this land. Yet they appreciated also the necessity for safeguards that would secure to citizens the enjoyment of their personal property in their land and possessions, and extended to them the support of the basic law in excluding others from them. They did not hesitate, moreover, to extend similar ownership to ideas, to authors by copy

1 Art. I, sec. 8, of the Constitution of the United States provides that the Congress shall have power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

See Allen v. Hunter, Fed. Cas. No. 225 (C. C. Ohio, 1855).

This objective is well illustrated by the testimony of Charles F. Kettering, vice president, General Motors Corp., in U. S. Temporary National Economic Committee, Investigation of Concentration of Economic Power, hearings, pt. 2, December 5-16, 1938, pp. 341-345 (referred to hereafter as TNEC).

See Attorney General ex rel. Hecker v. Rumford Chem. Works, 32 Fed. 608 (C. C. R. I., 1876).

right and to inventors by patent. In fact Thomas Jefferson, who was certainly vocal in regard to the evils of the type of monopoly which had plagued the Colonies from their inception, nevertheless favored strongly a patent system. Since those days we have recognized the advantages of monopoly in the public utility field, and placed it under regulation. We have also enacted antitrust statutes to prevent unreasonable restriction of competition. But the rights granted under patents have remained substantially unchanged. It is the patent monopoly with which we are here primarily concerned. Our forebears made the latter a temporary monopoly and imposed upon it practically no further governmental control.

It worked well. This country has prospered beyond all others in the wide application of new techniques and in advanced industrial processes. Undoubtedly much of this was due to the width of the land in which great homogeneous markets were developed, and to the pioneering spirit of the people which could be applied as well to industrial as to geographic frontiers. Yet the patent system was largely responsible for the vigor of our small enterprises and for the effectiveness with which new things were promptly brought into use. Life was made more comfortable, healthy, and worth living for large numbers of our citizens.

Yet it would be a fallacy to assume that all progress in bringing new devices into use depends upon the inventor, or even upon the industrial pioneer. It is well to emphasize that back of all material innovation lies a great body of science, and that the extension of our scientific knowledge is fully as important as its application. The fundamental scientist, working in his study or his laboratory, is not concerned with the utility of his findings; in fact when he becomes unduly thus concerned he ceases to be a fundamental scientist. He cares little about the patent system, and usually knows practically nothing about it, for it is of no moment whatever in what he does. " 7

To a certain extent this is true even of the applied scientist. And, in this connection, it is notable that there are many inventions made in the course of scientific research which never need the machinery of the patent system in order that they may be useful. Any research scientist in a laboratory who is worth his salt is making inventions every little while, new and useful combinations which would be patentable under the law, but which he never thinks of patenting. His

5 Jefferson wrote: "Certainly, an inventor ought to be allowed a right to the benefit of his invention for some certain time. Nobody wishes more than I do that ingenuity should receive liberal encouragement." He was likewise of the opinion that "in the arts, and especially in the mechanical arts, many ingenious improvements are made in consequence of the patent right giving exclusive use of them for 14 years." (U. S. Patent Office, The Story of the American Patent System, 1790-1952, Washington, U. S. Government Printing Office, 1953, p. 1.)

6 For typical quotations on these benefits of the American patent system see the foreword by Robert L. Lund in Patents and Industrial Progress, by Folk, New York, Harper. 1942, pp. ix-xiii. See also the two pamphlets issued by the National Association of Manufacturers: Patents, Progress, and Prosperity, by William R. Ballard (Economic Series No. 62), September 1953, and The Importance of the United States Patent System, addresses given at seminars on What Inventions Mean to You, held by the patents committee, NAM, 1948-52 (Economic Policy Division Series No. 56), December 1952.

See Inventors Behind the Inventor, by Burlingame, New York, Harcourt, Brace, 1947, and Inventors and Moneymakers, by Taussig, New York, Macmillan, 1915, especially ch. 1, The Instinct of Contrivance.

An apt illustration is provided in a two-page chart on the geneology of an invention (television) in Fortune, vol. 50, December 1954, pp. 134-135.

Benjamin Franklin declined a patent for the "sole vending" of the Pennsylvania fireplace invented by him, with the following comment: "As we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.' March of the Iron Men, by Burlingame, New York, Scribners, 1938, p. 79.

ingenuity is devoted to finding ways in which he can get at a scientific result, and the tricks he uses to attain a measurement or to bring materials into a special form are just a part of his overall effort. They may indeed be of use to other researchers as well, and he publishes them freely when he presents his results. Usually they involve procedures that any laboratory may readily adopt, constructing the necessary apparatus from components readily available to all. There is no need whatever for the use of a patent system in order to bring them into use. And no sound scientist would think of attempting to exclude others from the ingenious laboratory procedures which he has found useful in his own research.

Occasionally instruments and the like are invented in scientific laboratories which are of general use, and in such cases the patent system is often of aid in bringing them into use. But these are exceptions. The real point is that, throughout scientific work, especially of a basic nature, inventions are freely made as a part of the scientific research process, yet the operations of the patent system are of secondary moment, although such research provides the basis on which all future technical progress depends.

This attitude among scientists which relegates patents to a position of secondary importance is both understandable and, in many areas of inventive activity, quite sound. Many of them feel that they wish to have nothing to do with the patent system in any way. This is an aspect of their general attitude that, in fundamental science at least, they work to advance man's knowledge and do not wish to be concerned with minor objectives. This attitude is especially strong among medical men, and among those conducting medical research. They do not wish their work for humanity to be contaminated by considerations of profit, or the mores of the market place. Usually they are quite right, and the inventions they make will become of benefit without the aid of patents.

Unfortunately, they often carry this point of view over into an area in which it does not apply, and genuine advances of a technical nature become impeded. This is because they often fail to grasp the fact that the introduction of new methods sometimes requires far more than the mere conception of an idea, and that these special cases require explicit action.

An example will illustrate this point. When the obstetrical forceps were invented, the invention was held secret for a time, and passed down from father to son, while many women suffered unnecessarily.10 Any scientist who took such a course on an important matter today would certainly be ostracized by his fellows. He would be regarded as

8 On the relationship of research and patent departments in industrial corporations, see, for example: The Theory and Practice of Industrial Research, by Hertz, New York, McGraw-Hill, 1950, ch. 13, Patent Policies in Research, pp. 307-333, and The Organization of Industrial Scientific Research, by Mees and Leermakers, New York, McGraw-Hill, 1950, pp. 279–284.

As Dr. Torald Sollmann,_dean emeritus of Western Reserve University School of Medicine, wrote in an essay, Fundamentals of Medical Research, published in 1946: "The medical profession traditionally looks askance on patents because by definition they aim to restrict the free use of discoveries that should have the widest possible application to human welfare." In Smith (ed.), Medical Research, a Symposium, Philadelphia, J. P. Lippincott, 1946.

See also American Medical Research, Past and Present, by Shryock, New York, Commonwealth Fund, 1947, pp. 140-144; and Medical Patents, by Palmer, Journal of the American Medical Association, vol. 137, June 5, 1948, pp. 497-508.

10 See Priests of Lucina, the Story of Obstetrics, by Findley; Boston; Little, Brown, 1939, ch. 12, The Chamberlens, pp. 155-168.

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a worthy member of his profession only if he published promptly for the benefit of all his colleagues. Still, even if made known at once, the probability is that it would have been years before such an instrument was manufactured in quantity and generally introduced. The patent system, properly used, could have expedited this process, by rendering it justifiable for some industrial organization to spend the money needed for development, tooling, and introducing such a device.

There are also in-between areas in which the patent system is not of primary or crucial importance in the development of new products, but still can be used to public advantage even where private profit is not the objective. In fact, in cases where scientific laboratories of a nonprofit nature avail themselves of the patent system in cases of this general nature, they usually forego a profit entirely or else, which seems fully justifiable, direct any income which may occur into channels where it is used to extend the research being done for the public benefit.11

Thus, there are many inventions made where a patent system, as generally considered, is not of great importance. But this is recited so that there will be no misunderstanding, for there are areas in which it is of great importance.

Another point should perhaps be considered before treating of the system itself. There are two sorts of inventors, those to whom invention is a side issue, an incident in their professional work, and those to whom invention is a central and sometimes exclusive interest. The latter are prone to overemphasize the contributions of the inventor to society, and to regard the patent system as a means, primarily, for extending a reward to those who invent.12 Actually invention is only one part, and sometimes a relatively minor one, in the long process of rendering a new device or combination useful to the public. There has to be sound science to precede the act of invention to produce the knowledge on which it is based. And following invention there needs to be sound engineering, study of possible markets, development and design, and finally the expenditure of venture capital to provide the facilities for production and for advertising and selling.13 The patent system was not set up primarily to produce rewards to inventors. It was set up to produce a public benefit by accelerating technical progress, and the reward of the inventor is only one aspect of its operation.14

11 The patent policies of university and other nonprofit institutions are considered extensively in the two following reports: Nonprofit Research and Patent Management Organization (Publication 372), and University Patent Policies and Practices (Publication 257), by Palmer, Washington, D. C., National Academy of Sciences-National Research Council.

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Proposals for Improving the Patent System: Committee Print...84-2