Patent Laws and the Chemist FREDERIC B. S C H R A M M , Attorney & Councilor-at-law, Union Commerce Bids., Cleveland, Ohio
The decline of inventions in the past decade indicates a fly in the patent system ointment which we should try to eliminate. Not only are the chemical and engineering professions dependent on oftheseslaws,BUTthe public also gains proper encouragement of the s k i l l of i n v e n t o r s and scientists.
thewiseadministration
WHAT would become of the chemist and the engineer in a patentless country? What would happen to the United States if it were inventionless? The curves and data shown and discussed hereinafter show conclusively that this country is headed fast toward both conditions. Succinctly there was a decline of 41.5% in patented inventions in this country between 1933 and 1943 and this decline continued during 1944. I t is therefore conclusive that at this rate, in not many years, this country will be, as far as patents and inventions are concerned, in the same status as at the end of the last century, and the same as Mexico or India today. The whole chemical and engineering profession has been built up since the beginning of a fair patent system in the early 19th century· These professions have been built up only in the countries where there was a fairly administered patent system: they have continued only in such countries. The matter may well be pondered by chemists, engineers, and others whose jobs depend upon the willingness and ability of industry to maintain research laboratories, as well as by chemical inventors who may work independently and depend directly upon patent protection for financial income from their work. Attacks on the patent system have produced a n alarming drop in the extent to which patent protection is sought. That the patent system is susceptible of improvement is not questioned, but attacks upon it appear to indicate a program of destroying, rather than improving, it.
by
To effect the purpose intended for a patent system the granting must be well planned, and it must be well administered. T h e latter is even more important than t h e former because faults in the granting can be remedied and even cured in the administration, but not the reverse. America was fortunate in having two inventors among the group of remarkable men who invented, installed, launched, and administered through a formative period, the American form of government. Benjamin Franklin's fame as an electrical inventor will outlive his fame as a statesman, and Thomas Jefferson contributed more to the welfare of mankind through the mold board plow alone than he did through his statesmanship, as great and sound as was the latter. I t is not necessary for us here to espouse t h e conclusions of the great historian who maintained that James Watt contributed more substantially to human welfare than all the statesmen, all the soldiers, and all the politicians of the century in which he lived, or to here urge the conclusions of a great anthropologist, that all human progress stems from and is bottomed on the invention of tools. I t is sufficient t o say that these are views of men whose studies have been profound and extensive, though in sharp contrast with certain current views. True enough, little progress was made either in invention or otherwise in the first two centuries of the patent law. During the 17th and 18th centuries both France and England had what might be
Menace to the Engineering Profession Too much has been said in recent years about the fly in the patent system ointment and not enough about the ointment. Unfortunately, it seems that the fly, due to human frailties, creeps into and plagues each and every human ointment, legal and other kind. I t behooves someone at some time to talk about the ointment that is the patent system lest the ointment be thrown out to rid ourselves of the fly, magnified often by calamity howlers and always by the unstudied, the uninstructed, and the unthinking. The American people and the human race should not cease to profit by it in the future, as they have profited by it in the past.
VOLUME
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Fig. 1.
called patent statutes, but the laws were poorly administered, and a poorly administered law is often worse than no law at all because it aids the forces of evil and handicaps the forces for good. Even so, these centuries witnessed some advance, for it was in the 18th century that mechanical spinning and weaving and the steam engine were invented. At the beginning of the 19th century in the United States, through the work of Chief Justice Marshall and his associates, there was instituted for the first time in history a fair administration of the patent law. Popular impetus was afforded this movement by the bodily stealing of the cotton gin invention from EU Whitney b y some Georgia planters. The sectional feud which later became the Civil War was then strong enough t o incite resentment and demand rectification. Response t o the careful work of Jefferson, Marshall, and their associates was immediate and general in the United States. Some of the European countries followed the example of the United States. Only when, and only where, there have been issue of patents and a fair administration of the patent law have there been invention and progress. Of recent years there has been some progress in other countries due to the adoption and use of inventions made in the United States or some European country issuing and fairly administering patents. This was true in Russia where the "five year plans" were nothing more nor less than periods assigned for the adoption and purchase of what had been developed here under our patent system. Some have sought to attribute this phenomenon to natural resources, hut many countries, such as those of South America, Asia, Africa, and the Indies, far exceeded in natural resources such countries as Eng-
Patent Applications Filed and Patents Issued—1880-1943
40,000 11680 £885 l$9Q Î3?S VSGO ^SOfrï^î© 1915 \9'ÀÙ 1925 1 $3© 193^ 194CM945
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land and France and equaled or exceeded those of the United States. Fair Patent Laws Stimulate Invention
Fair administration of the patent law has been followed by a host of inventions. Since its beginning there has been more progress than had been realized before in all the history of man. Most impressive were the inventions of the steamboat, the telegraph, the locomotive, horse-drawn harvesting machinery, and the sewing ma chine, but parallel to these was a host of less spectacular, but equally important, inventions such as machines for making nails, pins, and horse shoes, wire fences, pressed glass, friction matches, driven wells, the circular saw, lead pencils, and the revolver. A man in 1930 was forty times as strong as a man in 1830; the man on the Boulder Dam was 4,000 times as strong as the man on the Great Pyramid. The modern farmer can produce a hundred times as much food in a day as the Revolu tionary farmer. Famine has been abol ished, except where it is renewed by politi cal folly. Hard labor as our grandfathers knew it, and slavery, were thus abolished. The Malthusian doctrine was disproved. Countries like England, which could sup port a population of only 5,000,000 before, now support nine times as many. All this progress is parallel to a fair and just administration of the patent law be tween about 1820 and 1930. All the engi neering and collateral professions, such as chemistry, have sprung up and spread out since this wise administration of patents. Before, the engineering professions were represented by a few surveyors, and chem ists were so little known that Lavoisier, then the world's greatest chemist, was guillotined by the French revolutionists, who did not know the difference between a chemist and a marquis. The patent grant was a means of crystallizing the resuits of his inventions and making the skill of the scientist an asset valuable to both
YBAB
POPULATION, MILLIONS
NUMBER OF PATENTS ISSUED
1880 1882 1883 1885 1887 1890 1891 1892 1894 1896 1897 1903 1904 1907 1908 1909 1911 1912 1913 1916 1918 1921 1922 1925 1930 1932 1933 1935 1937 1940 1943
50.16 52.9 54.1 56 7 59.0 62.94 64.6 65.5 68.0 70.7 71.9 80.5 82.1 87.4 89.0 90.5 93.1 94.6 95.6 99.4 102 β 104.0 105.7 114.0 122.7 125.1 • 126.2 128.0 129.0 131.7 133.9
18,000 22,000 20.000 25.000 20,000 27,000 24.500 24,500 21,000 23,000 22,500 33.000 31,000 36,500 35.000 38,000 35.000 38,000 35,500 46,000 38,800 42.000 40,500 43,000 49.000 52,000 50,000 42,000 38,000 42,000 31.073
533 '
·
PATENTS PERJGOjOOO PERSONS 50, 40 ι 30;
10 [ T S ^ T g W - J ^ g 1^'Λ^^^^^9ΐΦί^&;19^"ί^$:^9^1935
oi
1940 194S„ ~j
Fig. 2 . Invention I n d e x — 1 8 8 0 - 1 9 4 3 . In 1 8 8 0 invention per capita was 3 6 patents per 1 0 0 , 0 0 0 persons; in 1 9 3 0 it was 41 patents per 1 0 0 , 0 0 0 persons, showing rate substantially constant and disproving claim that Patent Office had become patent factory. There was a decline of 4 1 . 5 % between 1 9 3 3 and 1 9 4 3 . (Data from records of U. S. Patent Office)
himself and the public. Before our present system many other schemes, designed to encourage invention, had been tried and failed. These included the bestowing of honors of corations and the patron sys tem now p r o p o s e d again, whereby the sovereign . he state made grants to those who succeeded in winning favor with in ventions offered. Importance of Inventive Ingenuity
In the view of the report of the National Patent Planning Commission appointed by the President, we need not comment that inventive ingenuity, especially im portant in time of war, has been responsible for our industrial success. This ingenuity is not a thing which can be created over night, but must be built up over a period of years, and this and other countries have built it up through the patent grant. In ventive ingenuity is more important than ever before; indeed, it has been said that future armaments will be of little avail because of the resourcefulness of inventive ingenuity in rapidly rendering them obso lete. As everybody knows, this has been PATENTS PER done to a large ex PERSONS 100.000 PER PATENT PERSONS tent in the current 2780 35.9 war, w h e r e d o m i 2400 41.7 nance of one side over 2700 37.0 2270 44.1 the other has swayed 2940 33.9 2330 43.0 back and forth de 2630 38.0 2680 37 3 pending upon the 3240 30.9 weapons p r o d u c e d 3070 32.6 3200 31.3 through this inven 2440 41.0 2650 37.7 tive ingenuity. 2390 41.8 2540 39.4 All these things be 2380 42.0 ing so, should we 2660 37 6 2480 40 3 throw the ointment 2690 37.2 2160 46.3 away merely because 2640 37.9 there is a fly in it? It 2480 40.3 2610 38.3 is more reasonable to 3770 37 8 3840 40.2 undertake, at least as 2409 41.5 far as possible, to 3960 39.6 3050 32.8 eliminate the fly. 3400 29.6 3140 31.8 I n v e s t i g a t i o n of 4310 23.2 records of the U. S. C H E M I C A L
Patent Office shows that inventions per capita remained substantially constant though slightly increasing during the halfcentury between 1880 and 1933. Following this there was an abrupt change, and be tween 1933 and 1943 invention in the United States decreased 41.5%. These were the years when hostility to the inven tor and patentee was manifested by alleged higher standards of invention, "flash of genius" doctrine, and certain rabble-rous ing proceedings. We submit herewith certain curves which show this data and these trends. In Fig. 1 we have shown the record of appli cations filed and patents issued by the Pa tent Office from 1880 to 1943, and in Fig. 2 the patents issued per 100,000 population over this period. It will be noted that im mediately upon the pronouncement of these fallacious doctrines in 1933 the filing of patent applications and the issue of pa tents declined, as well as the isbviL* of pa tents per capita. At left are the data upon which Fig. 2 is based. This shows more in detail the slightly staggered gradual increase be tween 1880 and 1933 and the sudden and substantial decline, continuing steadily between 1933 and 1943. It is clear that we cannot change the rules at will, so as to make it more difficult for an inventor to obtain and uphold a patent, and expect him to continue to in vent. These curves demonstrate the wis dom of our forefathers in the standards which they set and followed for determin ing what entitled the inventor to obtain a patent. Thereby were realized those in ventions and that inventive genius which made us an*industrial nation, as the Presi dent's Patent Commission found, and saved us after the Pearl Harbor calamity. If we change those standards, we sacrifice the gain. These results are consistent with negative experience because there never was any invention or any inventive genius —except in dribbles—until our forefathers established the patent law rules and stand ards there were impaired between 1933 A N D
E N G I N E E R I N G
N E W S
and 1943. D u r i n g those years we returned to t h e age-long former old-world policy of offering insufficient reward, and t h e inventor has done precisely what h e has always done—i.e., refused to work without sufficient offer of reward, just as everybody else does. Nor can we fairly be indignant at t h e i n v e n t o r if he refuses to inv e n t without promise of hope of reward. W h a t would a carpenter do today if we refused to p a y h i m $1.50 an hour? W h a t would any other person do if we refused to pay the price, even though unreasonable? Yet these people need not m a k e t h e advance investment t h a t the inventor must make t o invent. Inventions Should Be Tested Objectively W e c a n n o t promise the inventor a valid p a t e n t on o n e s t a n d a r d of invention basis, t h e n change the basis, violating the promise, and expect a continuation of those inventions which have made our industry and our security. We must theretore hold fast to the s t a n d a r d s of patentable invention found successful heretofore and which m a d e o u r c o u n t r y great. W e m u s t again test inventions objectively b y w h a t they accomplish and what they contribute to the technique of those already skilled in their trades and professions, instead of testing inventions subjectively by who m a d e t h e n , or where, or in w h a t manner. T h e legislative adoption of t h e objective test of invention, based upon advancement of t h e arts a n d sciences, was a n i m p o r t a n t recommendation of t h e National P a t e n t Planning Commission. Unless patent protection is restored to its former force a n d importance as a keystone of our industrial progress, the decline in inventions a n d p a t e n t protection m u s t force into obscurity t h e chemists, engineers, scientists, a n d research workers whose economic existence h a s been made possible by p a t e n t protection. Without means for recouping t h e expenses of development, experimentation, a n d research, whether performed b y individuals o r b y groups of employees in research laboratories, such m e n will no longer be able t o exist while devoting their lives t o such work. T h e y can hope to be n o more than clerks. I t behooves every chemist, engineer, and employee of a research laboratory or manufacturing establishment t o d e m a n d a renewed respect for inventions and p a t e n t protection, a n d t o demand from his representatives in Congress enactment of legislation such a s t h a t concerning the objective test of inventions recommended by the Patent Planning Commission, in order t o revive the value of inventions and p a t e n t protection b y requiring resumption of the use of t h e objective test of invention when determining p a t e n t validity. I t behooves each m a n of science also to be on the alert and to write his Congressman in protest if any more destructive proposals for recodification of o u r p a t e n t system arise in the future. V O L U M E
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Institute of Textile Technology Plans Building Program An
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T H E I n s t i t u t e of Textile Technology, a g r a d u a t e school chartered b y the S t a t e of Virginia, announces through its president, W a r d Delaney, of Charlottesville, Va., t h e approval b y its board of t r u s t e e s of its building p r o g r a m . T h e present office a n d laboratory a c t i v i ties a r e housed in t h e 16-room residence and t h e 6-car garage of t h e p e r m a n e n t home t o which t h e institute h a s j u s t moved. T h e location is near F a r m i n g t o n , 11/2miles west of Charlottesville on H i g h way 250. T h e t e n t a t i v e building p r o g r a m contemplates erection of laboratory b u i l d ings in two rows facing each other across the formal gardens behind t h e residence which will t h e n b e t h e a d m i n i s t r a t i o n building. The i n s t i t u t e library, under this plan, will be housed in a s e p a r a t e building t o t h e west a n d front of t h e administration b u i l d ing. Architectural s y m m e t r y will b e p r e served b y placing t h e assembly hall t o t h e front a n d e a s t of the administration b u i l d ing. The lew buildings will be strictly functional i n design, b u t architecturally they will harmonize with t h e Jeffersonian style which characterizes t h e University of Virginia a n d t h e Charlottesville area. An applications building, equipped with modern textile machinery, will be e r e c t e d across t h e lower end of t h e formal g a r d e n s .
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T h e t w o rows of laboratory buildings will be connected with t h e administration building a t o n e end, and with t h e applications building a t t h e other end, by a covered colonnade. T h e area of the p r o p e r t y is 15 acres. This allows ample space for a power house, machine shop, d o r m i t o r y , and such other buildings as m a y be needed. T h u s opportunities are afforded for achieving efficiency in laboratory research while r e t a i n ing all t h e b e a u t y a n d academic environm e n t appropriate t o t h e campus of a g r a d u a t e school. T h e i n s t i t u t e is a nonprofit corporation, owned b y its m e m b e r s a n d governed by a board of trustees selected by t h e members, consisting of executives prominent in t h e textile i n d u s t r y , a n d its growing field of service now extends from Waterville, Maine, t o Birmingham, Ala. T h e i n s t i t u t e will a c c e p t as fellows only applicant? w h o h a v e t h e i r bachelor's d e grees w i t h excellent standing from recognized colleges and universities. I t cont e m p l a t e s a course of 2 calendar years leading t o a m a s t e r ' s degree a n d 4 years leading to a doctor's degree in t h e various fields of science. I t s prime functions a r e t o train men for the textile industry a n d t o utilize its staff in research in subjects of interest t o the textile industry.
Boxwood, former home of W. A i o n z o Rinchart, is centered in the fHan for the i n stitute of Textile Technology's front group. The residence (administration building) w3ll be symmetrically flanked b y the library on the west and the lecture hail on the east
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