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the humblest laborer knows he can come to him for counsel. His dealings with’others are marked by his love of honesty and justice, always fair, never taking advantage. When circumstances make it necessary to make an adverse decision, it is always tempered with a good will that breaches the gap. He has been sought by many who regarded him as the master mind in the chemistry of oils and fats. When circumstances were against him, he quietly accepted the inevitable and proceeded to find a way to surmount the difficulty. His acceptance of facts and logical procedure was remarkable. A real scientist, whose work in the laboratory was paramount. At home he spends many hours among his books. His wealth
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of information upon any particular subject is always a source of wonder to those fortunate enough to be associated with him. Never secretive, all his associates knew what he wanted to accomplish and the progress that he made from time to time. His interest never waned and he was a fine instructor. The writer wishes to add his personal testimony to the invariable helpfulness of his contacts with Doctor Twitchell. These were not in business association, but in quiet chats on the train years ago, conferences on welfare work in our industrial community, and personal calls in his home about one affair or another. M. B. GRAFF
NOTES AND CORRESPONDENCE Elements in Patent Law Recently I have heard much of a new doctrine of patent law-the unpatentability of products of nature. It is not new, being just about forty years old; and I am sorry to say it is not law, being but a limber-worded phrase colliding head on with a statute more than twice as old and still going strong. M y regret is because it is a neat, ready-to-kse formula that I could employ occasionally, obviating mental wear and tear to that extent. It is proverbial that thinking between meals is a nuisance. All of which considerations likewise apply to a late syllogisti: extension of the doctrine to the effect that all chemical elements are products of nature and therefore no element is patentable; an extension which now has judicial sanction in the tungsten decisions (see majority opinion, General Electric v . De Forest, 28 Fed. Rep. 641). In a still, small, entirely deferential voice I shall mention that any conclusion is not better than its premises; and that these premises need putty. English is a great and wonderful language and becoming more so as the trade marks multiply. I believe it has 450,000 words already, with vacant places for a lot more, such as the epicene third person pronoun, rhymes for silver and month, a general word for both bull and cow, and one for both horse and mare, and so on. Likewise, there is room for a whole flock of new and definite words to supplement and help out overworked indefinite old ones. “Element” is a word that needs collaborators. We are “slaves of words” and some of our masters are sloppy. Jevons says all English words, except some chemical terms, have several meanings. I don’t know them all; but as far as I have gone, I agree with him except as to the exception. “Nature” has many meanings; so many that it is really a “word of convenience;” a flexible word that means whatever is convenient. “Product” is another abused word; especially in patent matters, where it is quite often the wrong word in the right pew, or the right word in the wrong pew, or something like that-“product patents,” for example. The statute does not mention “products” as patentable. The combination, “products of nature,” sounds better than it means; which is to say, it doesn’t mean much. A pearl is a “product of nature,” and so, I think, is a cherry pie, since the girl who makes it is as much a part in the scheme of nature as an oyster. “Products of nature” made their debut in 1889 in the Patent O$ce Gazette. The syllabus of Commissioner Hall’s decision in ex parte Latimer (46 0. G. 1638) says, “A product of nature * * * (is) * * * not such a patentable invention as is required by the statute.” Hall’s opinion did not carry this language; but some law clerk with the soul of a sloganeer, in digesting the decision, put it in the syllabus. Likely he evolved it from
his inner consciousness, as the Dutchman did his description of a giraffe. The syllabus also quoted a Supreme Court decision as an authority. Mr. Hall decided that a particular fiber made from a particular pine needle was not made patentable as being the product of a certain new process; and that irf a world full of fibers made from all sorts of vegetable sources by retting and the like, he could not grant a patent on every newly produced fiber; and, in detail, not one on fiber from Pinus australis. His point really was that there was no invention in picking out Pinus australis. Hall’s opinion, which was fair and well reasoned, mentioned, but did not rely on, the Supreme Court decision in the wood paper case (American Wood Paper v. Fiber Disintegrating, 23 Wall 566; 1874). In the wood paper decision the court held that a particular cellulose was not patentable because a product of a particular process; and that the evidence did not show it differing in any identifiable way from prior cellulose. It was, therefore, not legally new. The court was not talking “products of nature.” Now, as most of us read syllabi and not decisions, the tradition grew up ( a ) that a product of nature is not patentable, and ( b ) that the Supreme Court had so decided in the wood paper cases. And this alleged doctrine of e x parte Latimer has had a profound influence on patent practice in and out of the Patent Office. In the Patent Office with forty years reiteration it has become somewhat of a dogma; it is deemed axiomatic. And a belief in it has crept into the courts. However, it will not stand analysis. “Products of nature” per se carries no definite meaning, since nature produces a great variety of things and results. Paraphrased t o “something existing in nature,” the onus is thrown on “existing,” which is as broad a word as we have. In much the same sense that Latimer’s fiber existed in the pine needle, the Venus of Milo exists in any block of marble or an axe handle in any stick of hickory. Latimer isolated his fiber by removing its surroundings; and the same can be done in isolating the Venus or the axe handle. Paraphrasing again t o say “something already existing as such in nature,” the formula now becomes nearly true. Its accuracy is increased by changing “already existing” to “already known to be existing” since the statute (R. S., Sec. 9430, formerly 4886) makes knowledge of existence, rather than existence, the bar to patentability. But in so doing, “nature” can be thrown overboard as excess baggage. The statute says, in part: Any person who has invented or discovered any new and useful * * * manufacture or composition of matter * * * not known or used by others in this country * * * and not patented or
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described in any printed publication * * use or on sale within this country * * * may
* and not in public * * * obtain a patent.
In other words, under the statute prior existent?, in nature or anywhere else, is no bar t o patentability provided nobody knows it-if there is no use or sale or description in print or in a patent. If, however, e.x parte Latimer is t o be amended by removing the “nature” and the “product” and inserting the definitions of Section 9430, it might be perhaps as well t o abandon e,x parte Latimer and rely on Section 9430. This I recommend. Reverting t o the “chemical elements,” the first duty of man is, of course, to get his definitions on straight. To any chemist the world “element” signifies several things. One is a particular substance of particular properties, existing as a material in a form in which it can be weighed, measured, tested, or bottled. This is a “free element.” Another is an abstract mental concept; the finally indivisible; an “element in a state of combination.” hIellor in his “Theoretical and Inorganic Chemistry” [Vol. I, p. 272 (192i)], in talking about hydrogen in the sense of the free element, says: We really know nothing about the hydrogen as it is combined with oxygen in water. It is a fashion of speech t o say the compound contains the element, or that the element occurs in or is present in the compound when the element can be obtained from the compound by suitable methods of decomposition. “Potassium” in the free element sense is a particular soft white metal, generally kept under oil because of its tendency to excitement when wet. “Potassium” in this sense is not found in nature and is not likely to be-not in a damp climate, anyhow. But we also use the word “potassium” for the abstract conception K in KC1. What this K really is we know no more than blellor knows of H, although the mathematicians are busy guessing. It is perhaps safe to assume that if KCl were a vapor a t the ordinary temperature (which it is not) the K would form one end of the integral molecule KCl; perhaps to assume further that K. is here a truncated or mutilated atom with one electron missing, this electron having migrated into the C1 system. It is quite certain, however, that in a bottle of KC1 there are no sticks or blobs or grains of a light white metal taking fire with water. Nor are there in feldspar or in any other K compound in nature. Metallic “potassium” is merely one member of the series of K compounds and it is not their basis. Both KC1 and the metal are articles as well as compositions; both are built up structures of molecules arranged in some way t o form crystals. Sir Humphrey Davy first made metallic potassium. He applied an electric current t o a lump of caustic potash and obtained silvery white molten globules of metal. Taking advantage of Einstein’s curved space-time relationships t o become anachronistic and bring Davy up t o date, it is obvious t h a t he had transformed or reduced matter to a new condition or state; which is t o say he had a new and patentable process. And his product was patentable under R.S. 9430, not because it was a product, but because it was a new thing; a new composition or a new manufacture, whichever you please, not known or used by others, not. on sale or in public use, and not previously patented or described in any printed publication. After the event, speculations on the constitution of K compounds were banal and irrelevant in view of Davy’s amazing new thing, an inflammable metal which floated on water and took fire. Admitting for the argument that which is not true, that the metal was carved out of KOH as the Venus was carved, what of i t ? The metal was new. To secure his rights in his metal under R.S. 9430, Davy would have t o present a short description as a claim, giving identifying characteristics by which the metal could be certainly recognized. So to speak, he would have t o put its finger prints on file. This was necessary both t o differentiate from old materials outside
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Davy’s monopoly and t o establish his rights in the event of an infringing metal appearing. The utility of the identifying characteristic Davy might have chosen was of no importance whatever. A finger print merely serves t o show that John Smith is not somebody else. Davy might have identified his metal by the fact of its firing when wet; and it would be quite immaterial whether Davy regarded the property as merely a nuisance or thought it might be valuable in fireworks. And I can imagine Davy’s surprise if somebody had argued inflammability was inherent in his starting material, caustic potash. All of which is presented as more or less of a parable, perhaps a bit parabolic. I do not wish t o discuss ductile tungsten or its relation either to the “element” \V or t o the compound WO3. Legally that is a closed matter, though the law points are open for discussion. Nor do I wish to express any opinion as t o any injustice which may have been done hfr. Coolidge, of Schenectady. Better luck to the men who actually make metallic hafnium or illinium. 724 NINTH ST., E;. P. MCELROY KASHIKGTOS, D. C.
Patents and Court Procedure Editor of Industrial and Engineeving Chemistry: I am very glad t o see in your editorial columns certain comments on our patent system. Those in your -4pri1, 1929, issue are particularly pertinent. -4s t o an unofficial court within any industry, I am frankly skeptical. It is in line with many other suggestions (and some experiments) looking towards improvements in our judicial system. We have in many states compulsory or optional arbitration systems which operate somewhat along the lines of your suggestion. My own rather limited experience leads me t o think such systems do not operate very well. The problems involved in settling any dispute are fundamental ones that must be solved regardless of the system of trial. We must first of all define the issues t o be tried. Theoretically this is done in a lawsuit by the pleadings-that is, the complaint and the answer. Having defined the questions involved, we then seek to find out what the facts are. This is done by the evidence presented t o the court. The lawyers then present the law applicable t o the case as they see it, or perhaps I should say, as they choose t o see it. The court then decides what the facts are and in what manner the law applies to this state of facts. I n any dispute involving any legal question the only orderly way t o proceed is: ( a ) t o state the question, ( b ) determine the facts, ( c ) determine the law applicable to the facts, ( d ) apply the law t o the facts, and ( e ) thus decide the question. We may believe that we can simplify our procedure by eliminating steps (c) and ( d ) , and the average engineer or chemist shares in the general public impression that cases should be decided on their “merits” and not upon “precedents.” As a matter of fact steps (c) and ( d ) cannot be eliminated. We can substitute something else for what we now regard as law, but, broadly considered, law is merely a rule of action and we must have some rule. If none exists we must make one before we can decide the case. The proposal to try cases on their merits instead of upon precedents merely means that we will leave the decision t o some referee or board of referees, who can decide however they see fit. In other words, we substitute the judgment of the referee or referees for the formal rules of law. Personally I would prefer to have cases decided upon established and settled rules of law rather than upon rules made t o suit the case. Where we can depend with reasonable certainty upon established rules, we can in some measure predict results. If we are t o leave the matter wholly t o the judgment of the referee, it becomes a matter of solving a personal equation, which is always difficult.
