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And this is distinctly yoztr affair. You suffer by the delay and uncertainty of industrial progress and you pay the bill. These are the absolute certainties in any case. Your life is shortened b y delaying the world’s progress while you live. If the inventor of a new plastic is delayed in establishing his rights in certain fields, little or no money will be spent in those fields until the doubt is cleared up. If patents on a protective coating for concrete can be fought through one district after another for years the money required for new plant t o meet your demand or inform you of its usefulness will not be invested on an uncertainty until the first law of self-defense is satisfied. If the patents on a new way of making sulphuric acid, after having been secretly operated for ten years, are so issued to opposing interests t h a t they overlap and the manufacturers have to spend years in fighting outquestions of title, you have to wait for the progress of the industry and all its numerous dependencies. If enormous capital is permitted to drag out interference and infringement suits, whether justified or not, to the impoverishment of the independent inventors and competitors, you not only have to get along without the improvements and econoniical devices b u t you pay the bill. It all goes into the selling price whether it sneaks in through the back door of manufacturing cost or boldly marches in the front door of patent account written off. If i t costs one inventor $60,000 to fight his interference suits, i t costs the otherTside about as much and whichever wins, you pay the bill as soon as he can make youlucky if you:don’tlhave t o pay the loser’s expenses too, either on the next’thing he succeeds in making or b y the way of the bankruptcy court. And you pay every moment of the day. Bed-springs, bath-tubs, soap, safety razors, wash-cloths, underwear, toilet articles, shirts, collar buttons, breakfast foods anddishes,
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carriages, automobiles, train and car service, safety devices, elevators, office fixtures, typewriters and copying machines, stationery, pencils, pens and printing methods; every convenience or economy of the business day and every evening amusement brings you its little hill augmented by this cost of litigation and delay. You can help correct the loose and wasteful administration of a wise policy. You can give a little time and thought and above all enthusiasw and purpose to the spreading movement for correction. You can call the attention of manufacturers, purchasing agents, proprietors, or stockholders t o the movement, giving them the articles published in this issue of T H I S J O U R N A L . Make them write to their congressmen. Certainly you can write a note t o the congressman from your district and to each of the Senators from your state, “putting i t up to him h a r d ” t h a t the patent law we have is of inestimable value to the country-its best bulwark against mere money power or ordinary monopoly, t h a t subversive changes of the law must not be tolerated but t h a t the practice should be simplified and clarified so t h a t the law itself stands clearly forth. Tell him how many thousands of dollars worth ‘of patented goods you make, or use, or sell per year (and you will be amazed if you figure it out) and tell him how many people you employ who are dependent for their livelihood on this work. And you can bring the matter before your business or technical associations and pass resolutions t o the President. The average citizen feels t h a t this patent situation is not a matter of concern to him, b u t a careful analysis of the underlying principles and conditions shows t h a t it is a matter of vital interest to the inventor, the manufacturer and the consumer-to every man, woman and child in every quarte; of the nation. W. M. GROSVENOR.
PATENT SYMPOSIUM THE INVENTOR, THE PUBLIC AND THE LAW.’ By
WALTER F. ROGERS.
I a m here to-night, not officially, but as a member of the patent bar of Washington and New York. Your managers believe t h a t my professional views are modified and in a measure directed by association work. My own idea is t h a t generally the patent lawyers are doing representative work, and t h a t on the whole they candidly urge the views of all-the inventor, the mechanic, the manufacturer, the combination, the public. As there are comparatively few combinations, the majority of us speak for the individual, b u t we do not condemn unheard the combinations, because we expect or desire them t o be controlled and utilized in the interest of the public without interference with their right t o a fair profit. I a m told t h a t all these classes of men are here or represented here to-night, and in what I shall have 1 Paper presented at the joint meeting of the Am. Chem. SOC.,Am. Electrochemical SOC., and the SOC.of Chem.Ind., New York, April 19,1912.
May, 1912
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to say I follow the hint of some of your committee. They tell me t h a t one-third know all about patents and t h a t two-thirds do not. Having in mind also the “remnant,” the one-third, I propose t o discuss not only the relations of t h e inventor and the public and the law to each other from an experience and study covering some thirty yearsin the Patent office, the law school and in practice, but also t o put it before you as I see i t colored by the vital problems of to-day. For a year or two the hundreds and thousands of individuals, of small and medium shops and plants based on patents, have been forgotten in the fierce discussion of the few great corporations, combinations and trusts owning patents, and the many are now endangered b y the swarm of ill-considered and hastily devised remedies intended for the few. The truth is t h a t the problems of to-day are in their broad aspects, though in other forms, the same problems which England dealt with nearly three hundred years ago, Let us see what relation the inventor and the
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T H E J O U R N A L OF I N D U S T R I - 4 L A N D E N G I N E E R I N G C H E M I S T R Y .
public then bore t o each other-and t o monopoliesand what is their relation to-day. The patent system of the United States is a development of the older system of Great Britain, with, however, fundamental differences. The British system arose from a negative provision in the Statute of Monopolies, 2 1 Jac. I ( 1 6 2 4 ) , based upon common law precedents, especially excepting from a sweeping prohibition of monopolies those granted for a term of pears t o the importers of a new art or trade and those granted t o the “first invent o r ” of “new manufactures” for a term of fourteen years. The patent system of the United States rests upon a positive provision of the Constitution, having a broader aim and a markedly different origin and expression of method. There is in the books and in the minds of many historians a certain misapprehension of the origin of the British patent law. It was Parliament which first endeavored t o sustain monopolies-the trade monopolies of the town guilds. The concentrated power of the guilds controlled Parliament through their representatives. The Crown, in the first instance, granted monopolies under a salutary principle. The privileges and charters and patents were then granted b y the Crown for the purpose of introducing new arts and trades from abroad into the country, so t h a t the workmen who could not get employment in the trades because they were not members of the Guilds might receive employment under the new arts and crafts, and the new trades. The result, however, was such an extension of the privileges granted b y the Crown t h a t they soon became abuses, far greater abuses than were t h e Guilds. They were made the basis for extortion and shameless revenueproducing trickery. The common law courts constantly strove t o hold even the scales of justice between the royal privilege and Parliament as representing the Guilds. It is t o their eternal credit t h a t the courts evolved and bravely maintained, as far as possible, t h e doctrine which holds to-day as the true one. I t is not necessary in an assemblage of this sort to detail the rising of the English people against this oppression of privilege of the “system.” At the beginning of the 17th century Elizabeth realized that the matter had reached the danger point. She issued her famous proclamation, and her Secretary, Cecil, wrote the Parliament in words so aptly descriptive of the times and thoughts of men t h a t a part of his letter needs t o be quoted: “I dare assure you from henceforth there shall be no more granted, they shall all be revoked. And because you may eat your meat more savoury than you have done, every man shall have salt as good and cheap as he can buy it or make it without danger of t h a t patent which shall presently be revoked. The like benefit shall they have who have csld stomachs both for aqua vitae and aqua composita, and the like; and they that have weak stomachs, for their satisfaction, shall have vinegar and alegar, and the like, set a t liberty. Train oil shall go the same way, oil of blubber shall march in equal rank; brushes and bottles endure the like judgment. The patent for pouldavy (sail cloth) if i t be not called in, it shall be. Woade, which, as I take it, is not restrained either by law or statute, but only
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by proclamation (I mean from the former sowing) though for the saving thereof it might receive good disputation, yet for your satisfaction the Queen’s pleasure is t o revoke t h a t proclamation; only she prayeth thus much, that when she cometh on progress t o see you in your counties, she be not driven out of your towns by suffering it to infect the air too near them. They that desire to go sprucely in their ruffs may, a t less charge than accustomed, obtain their wish. The patent for starch which hath been so prosecuted shall now be repealed.”
The House, filled with joy, sent a committee to call upon the Queen and express their thanks, and on November 30, 1601, the leader of all feminists made her celebrated “Golden Speech” in which occurred, among many other similar statements, the following : “Mr. Speaker, you give me thanks, but I am more to thank you, and charge you to thank them of the Lower House from me; for had I received knowledge from you, I might a’fallen into the lapse of an error, only for want of true information. “Since I was Queen, yet did I never put my pen to any grant but upon pretext and semblance made me, that it was for the good and avail of my subjects generally, though a private profit to some of my ancient servants, who have deserved well; but that my grants shall be made grievances to my people, and oppressions, to be privileged under color of our patents, our princely dignity shall not suffer it. “When I heard it, I could give no rest unto my thoughts until I had reformed it, and those varlets, lewd persons, abusers of my bounty, shall know I will not suffer it.”
The Queen’s bench soon had an opportunity to pass upon the principle. The leading and familiar case is Darcy v. Allein, 11 Coke, S4 b. Abridged, J Brodix Patent Cases, I . (See also Darcy v. Allin, I Web. P. C.) The arguments of counsel in t h a t case is given in Nay, 173. “Now, therefore, I will show you how the judges have hereis that when tofore allowed of monopoly-patents-which any man by his own charge and industry, or by his own wit or invention doth bring any new trade into the realm, or any engine tending to the furtherance .of a trade that never was used before; and that for the good of the realm; that in such cases the kings may grant to him a monopoly-patent for some reasonable time, until the subjects may learn the same, in consideration of the good t h a t he doth bring by his invention to the commonwealth, otherwise not.”
I t will be seen t h a t the common law had thus provided an adequate remedy against monopolies. It classed as unlawful, monopolies of existing arts and trades but recognized the propriety of purchasing the introduction of new trades and manufactures by granting a monopoly for a limited term. Though legislation subsequently became necessary, i t was not t o supply a deficiency in the law, but t o reassert the law which was being evaded and defied. You all, of course, whether lawyers or not, know t h a t the great name in law of those days is Coke. Sir Edward Coke had been the law officer in the cited playing-card monopoly case of Darcy v. Allein. He defines “monopoly” in terms which have been significantly paraphrased in recent decisions of the courts of the United States, nearly three hundred years later. I n his famous Institutes (3, 181) he says: “A monopoly is an institution or allowance by the King; by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling,
making, working, or using of anything whereby any person or persons, bodies politic, or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade.” It is probable t h a t if Elizabeth had been succeeded by one of equal capacity and of the same intense pride in her people the matter might have been concluded, b u t as ever with the King and the commoner alike, the necessities of the exchequer drove James and Charles t o permit and even encourage excesses under their primarily praiseworthy endeavors t o follow Elizabeth in giving a national character to the various trades. IGeping in mind how bitter was the fight, how bitter the protest and the sense of personal and national outrage engendered by these monopolies, i t is of prime significance t h a t Parliament, when it enacted the Statute against Monopolies in 1624, made t h a t notable exception in Section 5 in favor of the introduction of a new trade and t h a t pregnant exception in Section 6, in favor of new inventions. Let us once more read Section 6, keeping in mind the fact t h a t the whole nation was aroused against monopolies and t h a t nevertheless the nation realized the necessity of maintaining two forms of monopolies which they understood could best serve t o check t h e general monopolies. Now this is the way the statute read upon which the patent and trade laws of Great Britain have rested from t h a t time t o this, t h e patent law remaining without amendment until 1835. “Provided also and be it declared and enacted, that any declaration before mentioned shall not extend t o any letterspatent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole making or working of any manner of new manufactures within this Realm, t o the true and first inventor or inventors of such manufactures, which others, at the time of making such letters-patent shall not use, 50 also they be not contrary t o law or mischievous to the State, by raising prices of commodities a t home, or hurt to trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters-patent or grant of such privilege hereafter to be made; but that the same shall be of such force as they should he, if this act had never been made, and of none other.” Observe the purpose, not so much t o encourage and protect the original inventor, as to encourage the introduction of the new manufacture into the realm, and t h a t the granting of the patent remained an exception, and mas and is b y the favor of the Crown. Hapless Charles I . , driven by his money necessities, went himself into business on a reckless scale. The result was the creation of t h e infamous national monopolies of glass, starch, salt, cloth-finishing, alum, soap, etc. The licenses and holders of charters and benefits and their inspectors were vehemently and on every hand charged with extortion and blackmailing, t h e most offensive form of house-searching and exactions, and with bringing malicious suits and causing ruinous delays for t h e purpose of squeezing the “consumer.” Clarendon, in his History of t h e Rebellion, states
the result, the practice and t h e failure, briefly thus : “Projects of all kinds, many ridiculous, many scandalous, all very grievous, were set on foot; the envy and reproach of which came to the king, the profit t o other men, insomuch a5 of
