Research, Invention, and Patents A . A . POTTER, Dean of Engineering, Purdue University, Lafayette, ind., and Executive Director, National Patent Planning Commission
The patent s y s t e m , in. emphasizing the rights of the people, above, the rights of the State, and stimulating creative talent, is largely responsible for Americas pretent high standard of living. FINDING
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operation is bound to find this country relatively poor in material resources, with an enormous national debt, with the lives of millions of our people greatly dislocated, and with keen industrial competition by reason of the acceleration of technological progress in other countries. T o maintain our standards of living and full employment in the years ahead, American industry must make maximum use of research as an effective substitute for destructive economic tactics in highly competitive fields. For American industry to prosper, it must aid in establishing new frontiers of progress by constantly creating something new, as it must be realized that research, and invention, rather than governmental action or special legislation, have absorbed labor surpluses in t h e past, and have elevated our living standards. Security for American industry, for both employees and capital, can be attained only by expecting, anticipating, and directing the inevitable changes which are bound t o result from the present world conflict. T h e industrial progress of this country and the high standards of living of our people have usually been attributed to the abundance of our natural resources. Few, however, realize that the Americans, more than any other people in the world, are responsible for most of the epoch-making inventions of t h e past century. Our entire social structure has been altered during the last century b y inventors, who are the constructive builders of our civilization. These inventors opened new frontiers and opportunities for abund a n t life, not b y depriving people and nations of their property rights through robbery, trickery, and offensive warfare, but b y creating new wealth in the form of new materials, new processes, new devices, new industries, more economical manufacturing methods, and new products. The act of inventiveness m a y be the result of logical scientific thought and tireless experimentation or it m a y depend upon intuitive insight. Intuition appears t o be the innate ability of some inventors. T h e inventor at times finds a correct solution or creates a working mechanism based o n laws not known at the time the discovery was made. Intuitively, some inventors are able to foresee correctly the future and its requirements and t o arrange
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and direct their efforts accordingly. Men of genius have, upon occasions, created correct theories or m a d e true discoveries long before enough tangibleevidencehad become available to justify their assumptions. Intuition on the part of Leonardo da Vinci enabled him to show in his paintings and writings certain details in accord with scientific data and discoveries which were unknown in his time. Insight is the father of invention far more indisputably than necessity is its mother. Economic security for the people of this country was achieved in a large measure by inventions which h a v e definitely extended gainful employment. Only one in six inventions has as i t s primary purpose the saving of labor; t h e other five sixths of all inventions create employment, increase wages, increase wealth, decrease drudgery, improve working conditions, improve quality of product, and reduce the cost of goods. E v e n in 1940 fourteen million persons in this country were earning their livings in the manufacture, sale, and distribution of patented goods, and this number is m u c h greater a t present. Environment and t h e form of government account for t h e fact that Europeans —not nearly as inventive in Europe as the Americans—have produced in this country a Steinmetz, a n Elihu Thomson, a Pupin, a Tesla, a Zworykin, a Baekeland, and a Sikorsky. These m e n of genius would probably never h a v e achieved t h e inventions which America brought forth from them had they remained in their native environment. Another factor which has contributed to the creativeness in this country is t h a t in America, more t h a n i n any other country in t h e world, along with the enterprise t o create, there is also a willingness t o discard a satisfactory present in order t o create a better future. R a p i d obsolescence engenders invention. Still another factor is "Yankee ingenuity" originating from the environment of t h e early settlers which forced them t o invent or starve. This country is responsible for m o s t of the epoch-making inventions of our times because the American Revolution and t h e Constitution t o which i t gave rise emphasized and idealized the rights of the individual above those of the State. T h e American patent s y s t e m , which was established i n 1790, under t h e Constitution of this country, emphasized the rights of t h e
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individual and hence is consistent with the theory of government under which our country has attained its greatness. Our patent system, stimulating the creative talents of our people, is largely responsible for the industrial supremacy of America, and for the high standards of living of its people. Our patent system guarantees t o inventors and to those who invest in inventions far greater protection than that of any other country, and under it, the best and the largest body of inventions in the world has been developed. What is a patent? A patent is a certificate issued by the Government to the inventor, which grants to him the right t o exclude from benefiting b y his invention during the life of the patent. A patent right is a property right, but differs from other property rights in that protection by the Government to the inventor is accorded only if he can prove that he himself has created something new, which has not existed before, and that he is willing t o disclose his invention which becomes part of the public domain 17 years after the patent is issued. The American patent system implies the right of the inventor t., keep his discovery secret, and rewards him for bringing his invention o u t in the open, thus disclosing t o the public the products of his creation. Our patent system is intended t o reduce reliance upon secret processes. Disclosure of new knowledge through t h e patent stimulates and instructs others t o invent. T h e American patent system affords adequate protection for new ideas a s a n incentive for the inventor to create new machines and processes, and it acts a s an inducement to the investor t o finance t h e conversion of an invention into a marketable product. Invention is essential for industrial progress, b u t no one will invest in research t o produce inventions or t o develop and commercialize inventions made by others unless t h e new knowledge can be adequately protected by patents. T h e inventor and those who back him are protected b y the American patent system i n order that development, manufacture, and sale m a y be carried o n without unfair competition from those who have not shared in the invention or in its developm e n t and commercialization. Our patent system enables the public to benefit from new industries, based upon invention, b y protecting not only the invention but also its development and commercialization. T h e ownership of patents, and the control such ownership gives over the inventions covered, are basic t o many industries and utilities which would have never existed
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without the protection of the American p a t e n t system. The electrical communication industry is an example of a great industry built upon patents. On the other hand, lack of patent protection may accoun for the slow progress of low-cost housing. Since December 12, 1941, the National Patent Planning Commission, created by the President of the United States through Executive Order N o . 8977, has been appraising our patent system to make certain that i t is operating most effectively in the public interest. The commission realizes that a n y changes in our patent system must ensure maximum incentive to the inventor and definite encouragement to those who develop inventions into marketable products, keeping in mind that any weakening of our patent system would prove particularly harmful to the individual inventor of small means and to the thousands of small industries which rely upon patented products to serve the public in competition with large corporations. I t must be remembered that nearly onehalf o f our patents are granted to individual inventors, more than one third to small industries, and less than one fifth to large industries. Findings of the Commission
T h e following findings and conclusions of the National Patent Planning Commission will no doubt influence the patent policies of our Government: 1.
The protection afforded by our aided our war effort a free and complete exchange of scientific and technological knowledge and the products of inventive genius between our industries and our Government. 2. Present legislation is adequate to serve our Government's wartime needs, since existing laws permit our Government and its contractors t o use or to manufacture a n y invention regardless of the citizenship of t h e owner, upon the payment of reasonable compensation. 3. An investigation of the factors which justify the nonuse of patents and of the various charges of suppression, whicb has been given general publicity, indicates that American industry is not guilty of suppression of patents to any significant degree. Nonuse does not necessarily involve the suppression of a patent. Patents are often shelved pending financial, commercial, or technical development, but a patented article or process for which there is a substantial public demand will not be long kept from the market. 4. Compulsory licensing of patents may have some justification as a measure of self-defense in countries of limited natural and human resources, or in those lands which have a major portion of their industries under foreign control, or in countries which have a considerable portion of their patents granted to foreigners. Our country has great creative genius and a fair abundance of natural resources during normal times. Our industries are under American control, and about s e v e n eighths of t h e patents issued by our P a t e n t Office are granted to citizens of this country. Thus, a general system of compulsory licensing is undesirable for this system has pyatent bringing about
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country from the standpoint of public good. Compulsory licensing would prove most detrimental t o the individual inven-, tor and small industry, as the larger corporation would, through compulsory licensing, be in a position to deprive those less able financially to enjoy the benefits of their inventions. Furthermore, the rapid growth of our research laboratories requires a type of patent protection which would b e denied if a broad, compulsory patent licensing system were adopted. 5. While the commission does not favor a broad compulsory patent license system for our country, it h a s recommended that a public register b e established in the Patent Office on which patents could be entered upon the request of their owners, with a statement of the terms on which a license would be granted. I t is believed that this system, called in British patent law "licenses of right", may aid individual inventors in finding means for exploiting their inventions. 6. Patent cases have represented less than 10% of all antitrust cases during the past 50 years and are, therefore, not a major contributing factor to unfair competition in restraint of trade. At the same time, patents may be and have been used in a manner detrimental t o the public. The abuse arises, not from the patent itself, but b y virtue of secret, improper, and even illegal agreements. The commission has, accordingly, recommended the compulsory requirement for the recording of all agreements so that they will be available t o the public, t o governmental agencies, and to congressional committees. 7. During recent years, certain courts have ruled that a patent should not be granted if t h e invention is the result of "the slow b u t inevitable progress of an industry through trial and error". Even more significant w a s the opinion announced by t h e Supreme Court o n November 10, 1941, that "the flash of certain genius" must be revealed to justify a patent. The "flash of genius" yardstick is influencing the courts in a manner which is detrimental to t h e granting of patents for important improvements, and for new devices and processes which are the result of research, experimentation, and development. The National Patent Planning Commission h a s recommended that Congress, b y legislative enactment, declare a policy that "patentability shall be determined objectively b y the nature of the contribution t o the advancement of the art, and n o t subjectively by the nature of the process by which the invention may have been accomplished". 8. T h e provision of an objective yardstick for determining the existence of an invention m u s t be followed by a uniform application of the yardstick. Seldom is an issued patent declared invalid b y a court on the basis of the same facts and records known t o t h e Patent Office a t the time of the patent grants The validity of a patent i s now passed initially by about 100 different district courts, and occasionally by the Supreme Court. I t is felt that if, during the adjudication of a patent before a court, new facts and evidence unknown t o the Patent Office are submitted, the Patent Office should be advised and afforded an opportunity to reexamine its action in granting the patent on the basis of t h e additional information. T o ensure t h a t the test of invention is applied in a uniform manner, the commission has recommended that "whenever t h e validity of a patent is attacked in an infringement suit before a district court, the court shall certify the record t o the Patent Office for a report on the valid-
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ity of the patent", this report to be advisory only. _ 9 . T h e commission also favors that the jurisdiction of the existing Court of Customs and Patent Appeals be expanded, so that it functions as a single Court of Patent Appeals, receiving and deciding appeals from all the district courts in patent cases. 10. Public interest requires the avoidance of deliberate delays after a patent application is filed. A proposal of long standing, favored by the commission, is that a patent monopoly shall not endure more than 20 years from the date of its filing in the Patent Office. This plan allows 3 years for prosecuting an application to allowance. The second report of the National Patent Planning Commission deals with the administration of patents which have come to be owned outright by the Government and also with the respective rights of the Government and its employees and contractors in inventions involved during the employment or contract relationship. N e e d for Central Registration
Realizing that there exists a need for an adequate central source of information as to patents or rights under patents held by the Government, the President of the United States, acting upon the recommendation of the commission, established in the Patent Office, by Executive Order N o . 9424 of February 18, 1944, a register of government-owned patents, and the work of registration of such patents is nearing completion. I t seems reasonable to conclude that the general policy of the Government should be that of making its patented inventions available for commercial and industrial exploitation by anyone, but the Government should have the power to grant exclusive licenses or otherwise to dispose of patents under appropriate conditions and safeguards whenever it is determined that such action is necessary to assure the commercial development of an invention of a government-owned patent. The Government legally stands in the same relation to its employees in regard to inventions developed by the latter as do corporate employers. Accordingly, it appears desirable that it should be left to the agencies of government initially t o determine the action which will best serve the interests of the public, the Government as represented by the agency, and the encouragement of inventiveness by the employees. While it is not feasible to have uniform practice with regard to patents resulting from government-sponsored research, it appears, however, that since the Government has no need of the right to exclude, conferred by a patent, and does not enter into ordinary commercial enterprises in competition with its citizens, full ownership of patents should not be asserted by the Government. An exception of this policy would be the situation in which private ownership of patents would conflict with national interest.
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Science and engineering have demonstrated their value in supplying the type of knowledge needed to wage a modern war. To maintain our place in a warlike world, we must keep our-scientific and our engineering knowledge at a high level as a basis of national defense. We must continue research in war equipment and we must maintain an active armament industry as insurance for the future. At the same time, we must have more men and women who have the ability to invent and develop new machines and processes useful in providing full employment and high standards of living for our people. For our country to grow and prosper, we must have more epoch-making inventions fully protected by a sound patent system. For our war industries to be utilized most effectively in providing full employment, we must have more new knowledge. For new wealth to replace the material losses the world has suffered in this war, we must create new wealth through research and invention. The third and last report of the National Patent Planning Commission has as its objective the stimulation of inventiveness and maximum encouragement of new enterprises. Carroll L. Wilson, consultant to the National Patent Planning Commission, reporting his findings in studying plans for promoting inventions and discoveries, said: Trace the careers of inventors—or, for that matter, any other group of creative workers—and you'll find a startling number of hindrances placed in their way. Parents set the first great "road-block'' when they teach a child to believe implicitly whatever he's told. Thus, for most of us, the edge of our curiosity is permanently blunted; but without curiosity we cannot invent. Legislators
in search of ever-rising revenues build a tax structure which penalizes risky investment in new ventures. Thus the inventor comes to seek in vain for financial backing; but without funds, inventions cannot be converted into useful products. These two examples illustrate a general rule—namely, that society, perhaps because it fails to understand how and why an innovator works, generally acts not to help but to hinder his efforts. To grasp the opportunities these obstacles present for promoting discovery and invention, we must first reject certain rather widely held notions: (1) that ingenuity in any given individual is fixed solely by heredity, and therefore will not respond to cultivation; and (2) that ingenious persons are impelled to invent in spite of themselves and regardless of incentives offered. These beliefs are fallacious and irrelevant. Making generous allowance for a wide range of native abilities, one can nevertheless materially enhance the exercise of initiative by most people through (1) keener inspiration, (2) better "know-how", (3) more effective team support, and (4) greater financial incentives. Every one of the major obstacles so far explored promises to yield to some device contrived from these primary elements. Here are a few suggested approaches to certain problems in this field which directly concern engineering professions: Incentives for Inventor-Employees. To stimulate the productive efforts of inventor-employees, each employer in his own self-interest would do well to establish a program of special bonuses or distinguished service awards. By ensuring compensation for unusual contributions over and beyond line of duty, such bonus plans would furnish powerful incentives to engineers and research workers. Protection of the Patentee's Property Rights. The uncertain protection now furnished by law for the property rights of the patentee should be greatly strengthened. Adoption and support of a uniform, objective standard of invention, as already recommended by the National Pat-
Varnish Production Trends Discussed at Production Club Meeting The trend in varnish manufacture is distinctly in the direction of larger oilbodying "set" kettles, incorporating more power and more efficient agitators and heating systems, said S. T. Russell, chemical engineer of Blaw-Knox Co., at the April meeting of the New York Paint and Varnish Production Club. Materials used in varnish kettle construction were discussed; those found best are the 18-9 stainless steels, Inconel, Monel, nickel, and aluminum. Preference is given to colurnbium-bearrag stainless steel, in view of its resistance to corrosion, relative availability, and cost. Clad stainless steel has also been found suitable for construction of kettles. Mr. Russell discussed direct and indirect heating systems in varnish making and showed that oil usually costs least, gas a little more, and electricity more than gas. The following data, were presented for a medium-sized varnish plans: VOLUME
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Fuel Used Oil Propane City gas Electricity
Material Processed 0.0007 cent per lb. 0.00136 •• •• •• 0.00184 " '* " 0.00213 •• •• -
Annual Costs $ 7.500 14,400 19,800 22,800
A more recent development is chemical heating systems for varnish kettles, such as Dowtherm employing phenyl-phenyl oxide. The speaker described & new line of kettles in which the Dowtherm heating unit is built integral with the kettle. Advantages of phenyl-phenyl oxide heating are better temperature control, more rapid and easier cooling, the absence of overheating, and freedom from fire hazards. There is no flame involved and fumes are less objectionable. Joseph Mattiello, vice president, Hilo Varnish Corp.,, described physical changes in bodying linseed and other drying oils from 535° to 600° F. in air and vacuum. He proved his contentions by pigmenting the oils with reactive pigments such as
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ent Planning Commission, would do much t o foster their purpose. In addition, positive means should be established by law, t o ensure the maintenance of the patentee's presumptive rights in the courts. More. Funds for Development. The enterprising individual investor has always been a primary source of financing for new products. Logically he is still the intventor's most promising running mate. But the rising load of federal outlays has resulted in a tax structure which effectively chokes off the investors' appetite for risky new ventures. In order to reestablish an adequate flow of funds into new development, these tax obstacles should b e removed or greatly reduced. Our patent system, which is the soundest and best in the entire world, has offered maximum incentives to the individual inventor, to the research laboratory, acid to those who make possible the conversion of inventions into marketable products. A sound patent system is the very lifeblood of American industry and is an absolute necessity for the protection of investment in research, development, manufacture, and sale of new patentable devices and processes for public benefit. Bibliography National P a t e n t Planning Commission, First R e p o r t , printed as House D o c u m e n t No. 2 3 9 , 78th Congress, 1st Session, June 18,1943. N a t i o n a l P a t e n t Planning Commission, Second Report, printed as H o u s e D o c u ment N o . 22, 79th Congress, 1st Session, Jan. 9 , 1945. (Copies of these reports m a y be obtained from "the H o u s e of Representatives or from Commissioner C o n w a y P . Coe, E x e c u t i v e Secretary. N a t i o n a l P a t e n t Planning C o m mission, P a t e n t Office, Washington, D . C.) PRESENTED at the Winter Meeting of the Industrial Research Institute, Jan. 26 and 27, 1945, in Chicago, Ill.
peacock: blue, zinc oxide, and nonreactive products like titanium dioxide. Dr. Mattiello said that linseed oil in the early stages of bodying develops the best wetting properties for pigments; hence, a synthetic wetting agent with the same properties would be invaluable. The particular oil fractions with the wetting properties would have to be identified. These are present in the low poise stage when bodying attains a very low viscosity. Some 900 different grinds were made in the test, and data on degrees of flow from buttery to livering were presented. T h e color was improved through blanketing or bubbling, although this was undesirable when the oil was to be mixed with a n alkaline-reacting pigment. Low acid values during compounding are not conducive t o satisfactory wetting. The drying time of certain fish oils was improved through heat bodying. Don B. Bolley, National Lead Co., discussed chemical reactions during heat bodying, and Arretta I y n c h Watts, Du Pont public relations department, talked o n recent chemical contributions to industry. 721
