Nasmyth, the well-known inventor of the steam-hammer. "He had been called as a witness in patent cases, and had seen much of the advantages and disadvantages of patent litigation. He thought there was a natural tendency to partisanship among scientific witnesses, and had felt this tendency to become an advocate rather than a witness. His steam hammer had been infringed, but he took a commercial view of the matter. He had seen so much of the enormous expense of litigation that he had always resolved to submit to any infringement rather than fight a battle at law."

Mr. Webster, a prominent barrister, characterized patent litigation as "nothing but speculations on the part of the litigants on the ignorance of the judge and jury; a jury is often very ignorant, and a judge more ignorant than all of them."

Other prominent and experienced men testified to like effect.

When we take into consideration the ambiguous character of many English patents, and the absence of definite claims, the ignorance of judges and juries is not much to be wondered at. In this country, however, a well-defined claim is demanded before the patent can issue; and in litigated cases the matters to be adjudicated on come before the courts in such a shape that the judges, assisted by intelligent witnesses, are very rarely at a loss to understand the invention.

Patent litigation in this country

is not so costly, nor so unsatisfactory, as in England, and this fact may be very largely attributed to the effect of our examining system, in reducing and simplifying the questions coming before the courts. But evils, like in kind if not in degree, attend such litigation here, necessary evils where judges are called amidst other duties to deal with a variety of mechanical subjects, of which it is not to be expected that they have personal knowledge, so that they must arrive at their conclusions by such light as the adverse argument of counsel and testimony of experts may throw on the matter.

There is, perhaps, more patent litigation in this country than in England, as there are also very many more patents, the annual number of patents granted being not less than five times more numerous. But it may be gathered from the testimony of Mr. Nasmyth and of others, that in England patent litigation is governed not at all by the number of patents, but by the wealth and courage of patentees. There is likely to be little litigation when it is so expensive as to task the purse of a rich man, and so uncertain that both poor and rich are likely to prefer quiet submission to injustice rather than resort to the courts. It is the characteristic of the English patent system, to the known evils of which the sage newspaper article we have quoted would have us flee from the imaginary evils of our own, that in leaving the validity

of a patent, as a title-deed, an open question upon which litigation alone can throw any light, it makes litigation so terrible an ordeal, that sooner than invite it, most ordinary mortals would be content to have their rights remain forever undefined and unrespected.

We fancy the most inveterate and unreasonable grumblers would regard an exchange of our own for this system as a jump out of the frying-pan into the fire.

Patent litigation must always, from the very nature of the subject, be costly; the least that can be done then, in justice to inventors, is to insure that they may enter upon it, when necessary, with a tolerable degree of confidence and certainty, that they have something to stand upon.

One of the remedies proposed by those who understand the subject best, for the present state of patent property in England, is the establishment of special tribunals for the trial of patent causes, in which the judges shall have the assistance of impartial experts upon practical subjects. This, perhaps, is something which might be considered to advantage here. It certainly holds out the prospect of giving patentees the benefit of the most intelligent and satisfactory adjudication of their rights.

But this is only a secondary matter. Among inventors and their advisers there must be many who will be disposed, in drawing up descriptions and claims, to adopt the

maxim that "language was made for the concealment of thought," and this tendency must be aggravated if patents are so loosely granted, and there is such uncertainty and risk attending them as to lead to a general impression that vagueness and generality of language may be of service in furnishing some ground, however small, to stand upon. In this way patents become an abomination and a snare, both to inventors and to the public.

Such has been the experience in England; the result of allowing patents to issue without proper examination, without ascertaining whether the specifications and claims be clear, precise, and well defined, is thus graphically stated by Mr. Aston: "Patentees complain that they have not sufficient protection for their property, and the public complain that they cannot defend themselves from the patent. There are some intelligent patent agents; there are also some who are not so. It is very commonly the case that an uninformed man goes with his invention to an uninformed patent agent for assistance; the patentee in the latter case is frequently tempted to put in a very wide claim, or one capable of a very wide interpretation. He, therefore, does not as a rule find out the real value of his title-deed till he goes into court with it; there, for the first time, it undergoes strict examination by the judge on the bench, which is an ordeal which very few specifications can stand."

All this gives point to what we have said in the preceding chapter as to the important beneficial effects of our previous examination in compelling clearness and precision in the drawing of specifications and claims.

To overcome these evils, Mr. Aston suggested that there should be an official examination of the document which constitutes the titledeed; he thought that the examiner should be a lawyer, assisted by persons with technical knowledge.

Mr. Webster, an eminent Queen's counsel, says, alluding to the duties which the law officers of the Crown under the present system, are called upon to perform: "The law officers do not obtain a sufficient description of the nature of inventions in practice; they are not competent to deal with such subjects; they cannot give the requisite time, and they know nothing about mechanical details.

A law officer is the very worst person to discharge the duties for which he is appointed." The act of 1852 made it optional whether they should call in scientific aid, but generally he believed, they call in no such aid. Every application for a patent should be examined by some one competent person who thoroughly understands the subject of the patent. If an invention had been patented before, the applicant for the patent should be informed of it.

In a Parliamentary debate on the subject, Mr. Carr, M. P., said, "his impression was that at the root of all

the mischief of the present patent law lay the want of a proper tribunal, the members of which, combining legal and special knowledge, should refuse patents which ought to be refused."

Another member of Parliament stated his belief that "if the patent laws were to be maintained, it was necessary that there should be, in the first place, an examination to ascertain that the invention was new, that it was sufficiently described, and that it was useful."

Still another well-known Queen's counsel, Mr. Grove, stated that "he was in favor of the establishment of a special patent tribunal armed with the power of granting or refusing patents on the ground that they are or are not for novel inventions."

Other important evidence to like effect might be cited, but we have given enough to show that among those learned and experienced Englishmen who have given their attention to patent law reform, there is a singular unanimity in the belief that discrimination in the grant of patents is of vital necessity, and it may be noted that those are the most urgent in advancing this theory who have had opportunity for practical observation of the exercising of such discrimination in our own country.

We see the evils of the want of such discrimination forcibly represented patents granted with vague and indefinite specifications and claims; patents for old or for useless things, and for things already

patented; patentees left to ascertain in the courts the nature and extent of their rights, and yet afraid to resort to the courts, so that both patentees and public are left in doubt and perplexity as to what the majority of patents are for, whether they cover much ground or little, whether they are valid or worthless.

Surely such a state of affairs as this is infinitely worse and more unbearable than any evils which have been or can be engendered by our examining system.

One of the most prominent objections advanced in England to the adoption of an examining system analogous to our own is the demand which the system is supposed to require for highly scientific officers, and the supposition prevails here to some extent that the officers of our own Patent Office are or should be highly scientific men, and not unfrequently positions in that Bureau are sought on the strength of no other qualification than an assumption of philosophical knowledge acquired by cramming at our schools and colleges.

We cannot conceive a more disastrous event than the filling of our Patent Office with quasi philosophers.

Forty-nine fiftieths of all the applications for patents are based on absolute facts, to be best dealt with practically by matter-of-fact men, who can bring to bear good general and practical knowledge, and powers of discrimination and concentra

tion, without being biased by pet theories of their own.

Purely theoretical knowledge acquired apart from practice is treacherous, and standing alone is but poor capital for an officer of the Patent Office. There have not been wanting instances of theoretical examiners declaring machines and apparatus to be inoperative and impracticable which have been shown to be in every-day successful operation. Whatever science or skill may have been exercised in the production of an invention, the application for a patent goes before the Office, or rather should do, in a dry matterof-fact condition, and may be better examined by a man of shrewdness, tact, and practical knowledge, than by one who can only bring theoretical lore to bear on the duty. Few theorists think alike, and their efforts to elucidate a simple subject often result in confusing it, precisely as scientific experts in poisoning cases, and in not a few patent cases, by their opposite views, frequently succeed in confusing judges and juries, and in obscuring the truth.

There are classes or inventions which demand from the Examiner a degree of scientific knowledge, but the more practical experience this knowledge may be combined with the better will the duties be performed.

We cannot but think that the alarm in England concerning the difficulty of obtaining efficient officers

wherewith to carry out an examining system is a false alarm.

To say that an examining system gives discretion to officials, which good ones may abuse through error or mistake of judgment, and which bad ones will abuse deliberately, is merely to say what is equally true of any system of legal administration depending to any extent upon the discretion of man. If we are to abolish any system in which official discretion is exercised, because good men are not infallible and bad men will do mischief, what branch of government can we permit to survive? apply such an argument to the examining system is to say that a system proper in its theory and beneficial in its aim is bad for the want of capable and honest men to carry it out, an argument to which we think few of our readers will be willing to subscribe.

To

We have shown that the discretionary power which the examining system does confer on those who carry it out, is so limited and welldefined that if placed in the hands that the law intended it should be, the chances of injurious abuses of it are small indeed.

We have shown how beneficial the system has been, even admitting it to have been but imperfectly administered, how grossly its defects have been, from natural causes, exaggerated, wherein the real defects lay, and what kind of changes will be likely to remove those defects.

We have brought proof, too, of the evils ensuing from the lack of such a system.

We believe that our readers, candidly weighing all sides of the question, will coincide with us in the belief that the examining system whatever may have been the defects of administration, has been, upon the whole, of incalculable benefit both to inventors and the public, that its abolition would be a great misfortune, a signal for the reduction of patent property to a state of confusion, and that earnest endeavors to improve the organization of the Patent Office, in those respects wherein it very evidently may be improved, will do much to make the system as successful in practice as it is beneficent and just in theory.

CHAPTER X.

REMEDIES FOR DEFECTIVE
PATENTS.

HAVING in the preceding chapters discussed as fully as our proposed limits will allow, the examining system, peculiar in its character and intent to our law, we will now turn attention to other provisions, which will be found to be equally endued with the spirit of justice and liberality to inventors.

With a patent granted to him after an inquiry into the novelty and utility of the invention claimed, the patentee may come before the public with a reasonable confidence that his title-deed is clear and dis