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T H E J O U R N A L OF I N D U S T R I A L A N D ENGINEERING C H E M I S T R Y
which was the product of his own brain, and which but for him the public would not have known, and after which period the public has been free to use the invention forever. We need our inventors to keep us not only abreast but ahead of the strenuous efforts which Europe will make as soon as she has calmed down, and, as Marshal Foch has said, to keep us ever ready to meet another scientific war.-a conditioi which would not only enable us to win that war, if it should come, but would tend to prevent its coming. Desirable as it is t o reduce the commercial advantage of Germany in this country to a minimum, let us not take a step which would do us infinitely more harm than her, and that without substantially accomplishing its object.
ARGUMENTS AGAINST ANNUAL PATENT RENEWAL FEES By ELIHUTHOMSON, General Electric Company, West Lynn, Mass.
I am, in general, opposed to complicating our patent system and establishing bureaus which have to deal with renewal fees, with their armies of clerks, etc., a folly which has grown sufficiently in our government affairs,and which should not be extended in other directions. I do not think that the principle of patent renewal fees is a sound one for the United States to adopt. My chief reason for this, aside from the consideration just mentioned, is that an inventor, whose vision is some years ahead of his time, may take out a patent on an invention which the art is glad enough to adopt after, say, I O or 15 years. I think that such an advanced idea should, at least, receive protection for the few years of the patent’s remaining life, withou’ being penalized in any way when the development has been delayed, or when the art wakes up slowly to the need of a thing which the inventor had seen a long time ahead. In such a case, should he delay patenting, he runs the risk of having some one else step in and get the patent; so that he cannot delay, if he desires to hold the benefits for himself. He must patent within a reasonable time, or undergo great risk of losing the whole, since it is a principle of the patent law that due diligence in patenting must be exercised to confer validity. It must be remembered that there are patents and patents, some applying to some small simple affairs, gim-cracks, as one may say, which can be developed with great readiness and put into use a t once. There are also inventions relating to large structures, for example, a steamship or other large engineering work, and it may be years before the inventor (however meritorious his idea may be, and no matter how much he exerts himself) will get the hearing or get the means for putting his invention into practice. If there is any principle which needs amendment in the patent law, it might be suggested that classes of patents should be formed, and the duration of the patent depend somewhat upon the difficulty of exploitation. The patent renewal fee, while it might not tend to stifle activity for certain classes of inventions, would tend to stifle inventive activity for inventions which require expenditure and a considerable time to introduce. It often happens that an invention has a t first a limited application, and as the public gets educated to its advantages, its application grows, and just about the time the patent is to expire there is some chance of its being remunerative. Such fees would be something of a handicap to an inventor without financial resources. Anything is a handicap which creates difficulty, which acts in any way as a cloud upon the title. Inventions do not differ much from real estate in this respect. Then there is, of course, the possibility that unless proper safeguards are set up, an inventor (when the renewal fee may be due) is either ill, absent, or restricted in funds, and unless due and ample notification a considerable time ahead be given him, he may not be prepared when the time comes for the renewal fees to be paid, unless he has continually kept in mind the matter. He may be too busy to do that. With a clean title he has no such handicap to attend to, no such vigilance to exercise.
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The popular idea that wealthy corporations use patents for “blocking” or “protecting” is, to a large extent, false, and where it is done it is a natural procedure, because of the uncertainty of court decisions. It is very easy, after a thing of importance is done, for others to come along with colorable imitations or variations and take out separate patents and then attempt to work them, in spite of the main patent. If the courts were always sure to regard these “steppings-up-behind” in the proper light (which is, that they would never have been made in the absence of the main invention), the case would be different. Where a fundamental and very valuable advance has been made, it is perfectly natural for an individual, as well as a corporation, to take out as many patents on departures from, or modifications of the general idea, as he can afford. In my opinion, this is perfectly legitimate, under the conditions as they exist. It is unfortunate that it has to be resorted to in order to procure that degree of protection which a good patent should confer. If, of course, the decisions in the courts were based upon the opinions of a technical jury, high salaried, composed of the best men that could be found, I think the case might have a different aspect. As it is, there is no such tribunal; the judges have to take what they are told, and it is marvelous that they should get a t the real .essentials of the case as often as they do. The present method of taking testimony, as compared with that which used to exist in the past, is a great improvement, and tends to the obtaining of just decisions. As to whether patent renewal fees would tend to open up for development fields in fact, though not formally abandoned by patentees, I would say that I do not think that fields, generally speaking, are abandoned by patentees when there is a chance to pursue them to a valuable result. Whether the added cost of patent maintenance due to such a system would be sufficient t o deter corporations from disclosing their inventions through patents would entirely depend upon the actual cost of patent maintenance. If the cost were nominal, the influence might not be great; if it were large, the effect would be great. Here again, I object t o the complications involved, the bookkeeping, the keeping of accounts, the slavery to figures. The United States inventor has for many years suffered a serious handicap, as compared with the foreign inventor. In some countries it is required that a patentee shall work his invention within a certain period, or the invention is forfeited. A foreign inventor, a citizen of a country making these restrictions in regard to a United States inventor, takes out a patent in the United States, and is not required to do anything. The result is that the foreign country in question gets the benefit of the invention being made free to the public, while the United States manufacturer hasato wait for the expiration of the patent to a foreign inventor before he can take up work in the field, even though nothing may be done during the life of a patent by the inventor himself. This is a case where “sauce for the goose is not sauce for the gander.” It is a great folly which has been many times pointed out. It is a discrimination against the American inventor which should never have existed, and a good deal of the energy spent on tampering with the patent laws might well have been spent in considering the equitable aspects of this question. Surely, a foreign inventor patenting in the United States should be put under similar restrictions to those imposed by his country on United States inventors. Such fees would tend to induce foreign owners of United States patents to forfeit them, just as the foreign fees have induced and do induce United States inventors to forfeit foreign patents in the case where such fees are demanded, or where continuance fees are required. The hardship in this case is, of course, greatest when the man who has made the invention is considerably ahead of his time, when his vision of the future is the clearest, when his imagination as to what should be done teaches him to improve an art, even before the public has any realization of the need of such improvement.
OCt., 1919
T H E J O U R N A L OF I N D U S T R I A L A N D ENGINEERING C H E M I S T R Y
While I do not favor such fees, I think if they were imposed, there should be, a t least, a ten-year period free from any fees. The size of the fee is a matter for discussion, and largely depends, it seems to me, upon the invention in question. It is doubtful if the fees exacted should be the same for all inventions. I t would be desirable to have them so, but this wight work injustice in many cases. Let me reiterate that I think the system as it stands is quite good enough without these renewal fees. It seems to me it would be better to make them uniform, if they were propoFed. I am in favor of anything which tends to diminish the grip of bureaucracy upon the people or the industries. It is a growing fungus, which tends to sap the national vitality and divert effort from its proper channels. I am not in favor of experimenting with a system which has worked well in the past and which, if improved, could be better improved in other directions. I may say, in conclusion, that I am not much in sympathy with the means proposed for diminishing “the grip which foreignand especially German-inventors have on our domestic industry,” because I would take care of that by penalizing the foreigninventor as the American inventor is penalized by foreign patent laws. We have been very foolish and very lax in the past, and unfortunately the outlook for the future is not much better, without some considerable reform. I do not see why our home inventors should be taxed generally to secure the result which could be much more simply secured in another way, without trouble to such inventors.
SHOULD WE HAVE ANNUAL RENEWAL FEES? By I,. V. REDMAN, President, Redmanol Chemical Products Co , Chicago, Ill.
We begin by assuming that the principle is sound upon which our present patent system is based, namely, that the granting of monopolies and exclusive rights for a term of years to those persons who have new and novel ideas will stimulate invention and discovery. We will not argue this point. We will assume that it is true. Then are patent renewal fees justified? First let us take up the question, what practice exists in other countries? Cther countries have patent renewal fees. I t has been urged that since all other countries have patent renewal fees, the United States should have them. There is nothing in this reasoning which is fundamentally sound, as other countries may be and probably are in such financial difficulties that it is necessary for them to have renewal fees in order to have sufficient funds to maintain their government. What applies to a rich country like America may not apply to a poorer country with large national debts. What others are doing is irrelevant in this case. Patent renewal fees in the United States will be justified if it can be shown that present abuses in our patent system can be thereby eliminated or remedied. Our proposition, the correcting of abuses of our patent laws by levying a renewal fee, holds good, provided we can show that certain abuses in our present system can thereby be corrected. What are these abuses? We can hardly expect that any abuses will be corrected by taxing legitimate corporations for practicing their patents. It is obvious that there should not be renewal fees on American patents if these patents are being practiced in this country. Should a corporation be taxed on patents which are taken out solely to protect the patents owned by the corporation and a t present practiced by them? A practice which Dr. Hesse, in the Journal of Industrial and Engineering Chemistry, labels as abusive of the patent system is the method practiced by corporations of taking out large numbers of patents which are contingent t o their business, but upon which their business does not vitally depend and under which patents these owners do not practice or pretend to practice. Is this an abuse of privilege? We think it questionable whether this is an abuse,: even in the aggravated
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case cited by Dr. Hesse that is, that of the Bayer Company who owned 1200 patents a t the time of their transfer from German to American owners. Fundamentally, a patent is intended to be a monopoly on an idea for a term of years and this monopoly is supposed t o stimulate inventive genius. We cannot enter into an argument as to the soundness of this theory. Let us all agree that it is souncl, for it is the foundation of all patent systems in the world. What we would like to discuss here for a moment is the question as to whether the taking out of contingent patents by large or small corporations, or individual owners for that matter, is necessarily an abuse? We think not, and our reason is that in order that an inventor may have and maintain the monopoly granted to him by our patent laws, it is necessary that his invention be given as wide and as comprehensive interpretation as possible. He takes out contingent patents which are really an interpretation of his original patent, and are taken out in order to protect what our Government has agreed is right, namely, the monopoly of a new idea. The contingent patents are, in every case, patents which run parallel to the original idea and all the inventor or corporation is doing is providing protection against the possibility of closely paralleled ideas growing up to destroy the monopoly. These parallel ideas, although in many cases patentable, do not change appreciably the number or usefulness of things invented. Consequently, they have no fundamental right to exist as a patent. However, the original patentee in taking out these contingent patents saves himself endless litigation and endless trouble in the courts, and he is justified in doing so, remembering always that the intent of the Government in granting a patent was to give him a monopoly on his idea. It has been urged that large corporations prevent advancement by buying up and pigeon-holing new and useful improvements in the lines of manufacture in which they are interested. This is an assertion without proof. Seldom do we find a manufacturer or a corporation of prominence who does not recognize the necessity of producing the best possible article in order t o prevent competition. It is impossible for corporations to buy their way in leadership if they refuse to take advantage of the new and novel ideas they have originated or purchased. The corporation that buys its supremacy by suppression is in the position of the country hhich pays bandits t o stay away from its boundaries. The fee invites piracy. The corporation is already on its way to decay if it buys patented ideas which are in advance of its present practice and then suppresses the practice of those pateais. Now let us consider those.patents which are taken out by patent pirates who prey upon new and useful knowledge without attempting in any way to manufacture or practice under their patents. They take out patents in order to tie up new paten‘ted industries. The outstanding abuse of our patent system (which allows very liberal and promiscuous patenting) is the abuse which creeps in, due to the patent pirate, who without attempting t o manufacture explores a t his desk a new series of ideas which are being patented by others, and, adding a t random, without trial or practice, such knowledge as he may possess in the plying of his trade, he takes out accessory patents in the hope that he may be able to complicate the situation to such a degree that the original inventor or corporation owning the basic patents may be compelled to buy him off a t a handsome figure t o prevent costly litigation. Renewal fees on unpracticed patents will certainly eliminate a great deal of this sort of piracy. If these pirate patents can bewtaxed out of existence a good purpose will be served. The elimination of the pirate is the greatest possible improvement that could come to our existing order. Obviously there should be a non-taxable period beginning with the granting of thetpatentcit should be sufficient to allow
