August, 1929
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NOTES AND CORRESPONDENCE Passing the Patent Office Buck RITICIZING the Patent Office is a favorite sport in the best chemical circles. Everybody’s doing it. I do it myself sometimes when an examiner does not agree with my views on chemistry, a recurrent phenomenon which always puzzles and irritates me. Between times, however, I realize t h a t it is just as useful t o fuss about the Weather Bureau. And as I like t o be fair in odd years and this is 1929, I shall pass the buck for the Patent Office, or a t least translocate it somewhat; and then ask you t o tell your troubles t o a Senator. Mainly what ails the Patent Office is what ails the rest of us patent people-the lack of an authoritative, modern body of case law on which t o base reasoning and opinion. Cast! law there is in plenty, but the decisions are either not modern or not authoritative. Up t o 1891 patent litigation went t o the Supreme Court for final adjudication just as any other litigation did. The nineteenth century gave us a host of new ideas, wonderful then and commonplace now. Each was duly patented and many were bitterly litigated, with the litigation winding up in the Supreme Court. I n a general way the Court looked a t all legal questions from the viewpoint of law rather than equity; holding that, a patent being the creature of statute, patentees were entitled t o their statutory rights, neither more nor less. The Court took the letter of the statute and the letter of a man’s claims. If his wording was unfortunate, that was his bad luck. It was hard practice; but it had the advantage of being definite, logical, and consistent. And it had the greatest virtue of all, finality. Then Congress created a lot of Circuit Courts of Appeal, making the decision of each in patent matters final in its own circuit, but not controlling in any other. Appeals t o the Supreme Court were cut out. Since pat.ents are national and not local, I have never been quite able to see the beauty of subdividing an adjudication of validity into fractions. .4nd I understand there are patent owners who find it inconvenient and expensive t o try validity over and over again in different circuits. At first in patent matters the Courts of Appeal all followed Supreme Court decisions, then recent and controlling; but as time went on these decisions became antiquated and new questions arising were handled on new lines, with a tendency t o do equity rather than try law. Gradually the several courts, being wholly independent, veered apart and in patent matters each has established its own view of the law. Today a man trying a patent case in any circuit is well advised if he relies mainly on the decisions rendered in that circuit. In other words, so far as case law of patents is concerned, there are nine kinds in the country now and, as a tenth circuit has just been created, presently there will be ten kinds. Once in a while when the courts range too far apart patent cases go t o the Supreme Court by certiorari, and then we do have a decision which is final and which clears the air on some point. But these certiorari cases are too few to affect the general situation much. Meanwhile the Patent Office keeps on doing business a t the old stand mostly, practicing under nineteenth century decisions and applying the letter of the law t o the letter of the claims as the Supreme Court used t o do it. And when a court man from a circuit using two-point-five statute law interviews an examiner who tips his hat when he passes a shelf of Supreme Court reports, there is profound bewilderment on both sides. I act as interpreter occasionally. The Patent Office is an institution; but it is also a group of
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men whose contact with the public they serve is more individual than collective. There are some 600 examiners, all educated men, mostly liking their jobs and all hard at work under inconvenient conditions in two old buildings crowded with old papers. Of clerical assistance they have little, nor is much possible. The 600 are organized into 62 examining divisions, among which are distributed the 308 classes that embrace all knowledge. Each division is a complete and self-contained autonomous unit headed by a primary examiner and equipped with a clerk and a stenographer. It has no connection with any other division and it does business directly with applicants for patent as long as an application is under examination. Within the division, in turn, there are a number of assistant examiners, each working independently, examining the class, or fraction of a class, assigned t o him. Team work is mostly out of the question. All of which amounts t o saying that the Patent Office is really an association of 600 non-competitive specialists. And the 600 average just as various and just as human as any other bunch of 600 college graduates, recent and not so recent. There is an enormous turnover in the junior grades of assistant examiners, young college graduates spending a year or so in the Office and then resigning. Primary examiners rarely change. Better salaries on the outside are a factor in this turnover, but only one factor. There are a hundred other reasons, 99 of them working, why a young chap may think it looks pleasanter outside than inside. Office conditions play their part. When I left, which was some time ago, it was because of a difference of opinion: the Office thought it was up to me t o examine leather-working machinery and I didn’t agree. The constant parade of green men through the examining corps is hard on everybody, including the piimary examiners and not excluding me. But broadly considering the public interest, however, maybe the turnover is worth while s i x - th- Patent Office has become a sort of Plattsburg school for the industries. Some of the difficulties in the Patent O5ce are mechzniczl, owing t o the expanding field of sear-h. When I was in the examining corps, the patent numbers ran between 700,093 and 800,000. The present numbers run as high as 1,700,000. So my successor has twice as many references t o keep in mind as I had. It used to take me about half a day t o leaf over the patents in one subclass, that of “Evaporating Pans.” It takes him longer unless he looks quicker. Each examiner today, on the average, has about 7000 United States and foreign patents to keep in mind; and next year he will have more. This is too many. What can be done about the expanding field of search I don’t know; nor does anybody else. It is self-evident that examiners must depend more and more on indexes and digests and less on actual searching. And I might venture to suggest that concerns aggrieved by the appearance of what they think new patents on old things would display an intelligent self-interest by sharing their tabloided information with the Patent Office. I had the further advantage over my successors in that I had a certain sweet certitude as to what t o do with a reference when I found it. Not only was the Supreme Court body of case law recent and controlling, but “the practice” in the Office was fixed and standardized. The “Rules of Practice” were then intended t o be followed. There was a distinction between “merits,” which meant mostly novelty, and “form,” which meant everything else in the “Rules of Practice.” From a “rejection” on the merits an appeal lay, first t o a board of examiners-in-chief and then t o the
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Commissioner. From an “objection” to form an interlocutory petition, for which no fee was charged, went to the Commissioner directly. Petitions were filed in flocks every day and the Commissioner’s hand was in every division. Any examiner or attorney with aberrant ideas was soon whipped into line by the umpire. The result of the system of objections and petitions was wholesome. Everybody had to live up to the Rules and “the practice” was uniform. Interlocutory petitions to the Commissioner on miscellaneous matters of practice, however, became obsolete in 1903 with the Supreme Court decision in the Steinmetz case (109 O.G. 549). With that decision, as the Commissioner reacted to it, most of the things we thought matters of “form” became matters of “merit” and objections and petitions were no longer in order. The Commissioner could no longer be reached directly and his powers as an umpire between examiner and attorney went into the discard. Everything had to be dealt with by appeal. For a time a system of piecemeal appeal was tried, but it was too much of a nuisance and it has been dropped. The net result was that the Commissioner lost practically all his supervisory power, as distinguished from his judicial power. To recapitulate, the Patent Office is really in the situation of the sheep when Bo-Peep was lost. It has no modern body of law which i t can or will use. I have had primary examiners, and not the worst in the bunch, tell me that they pay no attention t o
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court decisions because they “vary so much.” It has had n o internal uniformity in practice since e x rel. Steinmetz appeared and tied the hands of the Commissioner, making the “Rules of Practice” a relic. It is really 62 independent patent offices, each going its own way and with its own individual practice, and each struggling with a constant expansion of its work and with a succession of green assistant examiners. It is a surprise to me t h a t the 62 do as well as they do. Coming back to my text, while I shall acknowledge the truth of criticisms of the Patent Office and indeed I could sing some songs of sorrow of my own, yet I want to point out that the difficulty really lies with Congress and not with the Patent Office. I recommend that, instead of throwing bricks, an effort be made to have Congress (1)restore the supervisory authority of the Commissioner in the Patent Office and (2) create a central court of patent appeals to which all patent cases can be appealed, ridding us of the present chaos. This will not only save money, work, and time to patentees, but it will give the Patent Office a body of consistent case law on which it can rely and by which it is bound. Incidentally, somebody will then be able to write a textbook of patent law. K. P. MCELROY 724 N I K T HS T ,N. W. WASHINGTON, D. C . July 3, 1929
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BOOK REVIEWS --The Pyrolysis of Carbon Compounds. BY CHARLESDEWITT organic compounds is not rigorously uniform throughout the text. In a few isolated cases the danger of omitting the initials. HURD. A. C. S. Monograph 50. 807 pages. The Chemical
from the names of investigators was encountered, since work by two men has been placed under the same name in the author index. This monograph, written with two primary motives, “the proThe theoretical discussion in the introductory chapters should vision of as complete a survey as possible of the pertinent literado much toward arousing interest in pyrolysis. The author’s ture, and the rational organization of this material,” maintains analogy between the water, ammonia, and methane systems. the high standard set by previous books in the AMERICASCHEMI- should be of value in predicting qualitatively the course of reacCAL SOCIETY monograph series, and fills an important need in tion, and the study of the electron attraction of radicals should chemical literature. The organic chemist will find an organized be of great interest from the quantitative standpoint. It is to discussion covering all types of carbon compounds, presented in be hoped that more studies will be made also in regard to thermosuch a way that many interesting problems will suggest themdynamic relationships. The inclusion of theoretical discussions selves. The physical chemist will see that his aid is needed in throughout the text, as well as the author’s critical attitude, continuing the work on free energies and other physico-chemical makes this monograph, which might easily have become a mere methods of attack necessary for a quantitative study of the cata!og of the literature, a valuable book from every point oE problems. The industrial chemist is given, not only a concise \-ieW-.-LAWRENCE m‘.BASS discussion ,of his particular field, with numerous references to recent literature, but also a general view of the theoretical background. I t is to be regretted, however, that more emphasis was Proceedings of the Second International Conference on Bituminot placed upon the economic importance of pyrolysis in the nous Coal, November 19-24, 1928. In two volumes. Volume petroleum industry; the automobile, a symbol of current life in I , 987 pages; Volume 11, 940 pages. Published by Carnegie America, could not have reached its present status if cracking Institute of Technology, Pittsburgh, 1929. Price, %15.00. were unknown. The treatise begins with a discussion of general principles and The two volumes which report the proceedings of this conconcludes with a chapter summarizing pyrolytic polymerizations ference give a very fitting rksurn6 of one of the outstanding and depolymerizations. The intervening chapters contain deevents in the field of coal utilization. Over one hundred manuscriptive matter arranged in logical order, beginning with hydroscripts, supplemented by worthwhile discussion, present what is carbons and running through all types of carbon compounds. undoubtedly the most valuable treatise on present knowledge of A s a literature review this monograph deserves high commendacoal preparation, burning, and processing. tion. One great difficulty in compiling literature on pyrolytic Chemists who have occasion t o look up the various schemes reactions lies in the fact that very often they will not be indexed as such in the abstract journals. This situation is responsible for low-temperature coking and the European practice for coal handling will especially welcome these volumes, since most of for some omissions-for example, in the section on proteins. ’ I hen, too, a comprehensive summary of pyrolytic molecular re- the commercial methods which have been recently developed, in both the United States and Europe, are treated by some reprearrangements would have been of considerable interest, even sentative of the promoting company. though the general subject of rearrangements has been covered If the reader will use in appropriate quantity the proverbial by another monograph in this series. “grain of salt” in studying the economic significance as presented The more mechanical phases are in keeping with the general by the backers, he can count on this work as being an excellent excellence o f the rest of the book, The free use of structural formulas, i ncluding those of hypothetical intermediate com- guide. That there should be some discounting of the claims of the various advocates of processes is self-evident. However, pounds, is t o be commended. Twenty-nine of the 64 tables are summaries of the behavior of certain groups of related com- this is a criticism neither of the advocate nor of the splendid conference from which these volumes have come. It is a natural pounds; t hese tables are of great aid in systematizing the data and inevitable result of enthusiasm for a new method which and in conserving space. The usage in compounding names of Catalog Company, Inc., New York, 1929. Price, $12.50.
