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T H E J O C R S A L OF I - V D C S T R I A L A S D E S G I S E E R I N G C H E V l I S T R Y .
Experience, however, has led the cOurts to adopt a different view and in the majority of cases a patentee has t o contend for the legality of his reservation, sometimes, if not generally, expending the greatest part of his energy in a litigated case in proving his title, a s it were, while curtailment of the granted monopoly is going on without restraint. The reason for this seems t o be t h a t the courts have come t o t h e conclusion t h a t our system of preliminary examination does not, in fact, properly safeguard the interests of the public; the reasonableness of this is clear on considering the practical impossibility of a n y one man, or set of men of reasonable proportion, t o be so fully acquainted with the entire a r t involved in all inventions made and operated, a s to give, in all cases, a decision which is bound t o be just. The remedy, therefore, would seem to lie in the direction of improving or elaborating our system of preliminary examination because I believe a n absolute abandonment of preliminary examination t o be necessarily vicious. The remedy which I beg leave t o suggest is t h a t after a n application has been passed t o allowance in the Patent Office the public, or so much of it a s is interested, be given access t o the disclosure of the invention and a reasonable time within which to oppose the final grant of the monopoly, a s is done in Germany, or a patent might issue subject to t h e conditions t h a t if i t be successfully opposed by the public within a reasonable time from the date of issue, say, one year, the scope of the patent will be diminished to the extent the opposition succeeded or revoked a s the case may be; a patent obtained under either mode t o be given the right of preliminary injunction in its favor and all infringement or alleged infringement thereof t o cease or t o be prohibited pending final adjudication of the validity of the grant. Of these two propositions I a m inclined t o favor the first because so long a s the grant of a patent is withheld exploitation is not likely and enterprises based upon what may be false foundations will be less likely t o be started, a s might well be t h e case under the second suggested remedy thus causing avoidable, and therefore unnecessary, losses and disappointments. B y this means t h e inventor, on the one hand, would receive a patent effectively shutting off infringement and consequent interference in his granted monopoly until his opponents have properly proven the illegality of the patent. The public, on the other hand, would be spared the issue of a very considerable number of patents presumably invalid and b y exercising its rights to oppose the grant of patents of doubtful validity would save t o itself many opportunities of endeavor and development and the expense and annoyance of proving in court the invalidity of a granted patent together with the annoyance and interference which a n invalid patent is capable of producing. I n return for this, the inventor would probably be required t o have his monopoly d a t e from the date of the disclosure of t h e invention to the public-at-large by the Patent Office, t h e time required t o overcome the opposition by the public being very likely a proper charge against t h e patentee’s term of monopoly. It should be noted t h a t it is not contemplated to take from the public the right to attack the legality of the grant of the patent b u t t h a t t h a t right remains fully open to t h e public throughout the entire life of the patent, subject t o
Mar., 1909
the condition that the patentee’s rights must be fully respected until he is proven t o be in wrongful possession. This covers all the changes t h a t I feel I should care to suggest. There is another suggested change t h a t is agitating a great many inventors, economists and the public generally, which is the so-called working of patents. Personally, I am unfavorable to a compulsory working of a n y patents; personally, I believe t h a t a patentee ought t o be permitted to practise his invention where it best suits his convenience and the trade conditions he has t o encounter; so long as he gives the public access to his invention, directly or indirectly, he has in my present opinion carried out t h e spirit underlying our Patent System. If circumstances are such t h a t i t is not profitable or possible t o exploit t h e invention a patentee should not be compelled to work his patent in spite of such adverse conditions. The foundation of the agitation for the working of patents seems to be a supposed loss of income or advantages to t h e public-at-large said to be due t o inventions protected b y United States Patents but imported from abroad, the corrective idea being t h a t the country would be benefitted by having such patented articles or processes produced or practised within the United States. If t h a t be t h e true reason,then it seems to me to be foreign to the purpose and intent of t h e patent law and very probably antagonistic to a full and free exercise of its contemplated and proper functions. There may be other ways, perhaps by levying a special tariff on goods imported from abroad and patented in the United States, t o accomplish this object, such levy t o be reviewable by the Secretary of the Treasury and rescindable upon satisfactorily showing t h a t t h e goods cannot be economically produced in this country. To attach a condition of working a patent, no matter how limited, under penalty of revocation or other restriction of the granted monopoly is, in my opinion, not the best way to accomplish the desired end and, I believe, not in harmony with the purposes a n d spirit of the Patent Law. THE UNITED STATES PATENT SYSTEM, ITS USE AND ABUSE T H E INVENTOR’S STANDPOINT. B y DR. L. H. BAEKELAND.
The patent laws of t h e United States have been conceived with a n unparalleled spirit of liberality towards the inventor. The lawgiver in framing these statutes had certainly in mind to offer t o the inventor the maximum of protection for his intellectual property. I n no other country whatever is a patent obtainable a t such a small cost; nowhere is t h e intended protection extended for a s long a period a s in the United States; nowhere is the real and first inventor so much guarded against possible disclosures or unfair indiscretion of others. I n most other countries the patent laws seem t o have been conceived with the main idea of bringing in a source of revenue for t h e government. I n most of them additional taxes are levied every year which make the burden of the struggling inventor a very heavy one and seem to discriminate in favor of the rich man or t h e rich corporation who can afford to pay the yearly tribute. My relations with the United States patent examiners have shown me t h a t v-ith very few exceptions these officials
NOTES are able, earnest and fair. They can compare very favorably with the best of all other countries. Their honesty of purpose and conduct has never been questioned by anybody except by people who instead of investigating the subject, merely limited themselves t o sneering a t them. In late years one single case has transpired of a subordinate assistant examiner who seems t o have tried to get appointed t o the patent office staff with the very purpose of committing a dishonest act, hoodwinking the vigilance of the chief of his department T h a t such abuses have not occurred oftener is a real wonder when we take into consideration t h a t t h e corps of examiners are a n underpaid, ill-recognized, unrewarded set of fine men. Their devotion to their work with no hope of reward beyond a meagre salary is a fine example of good citizenship. I know of many a time when views contrary to these mere expressed by some impatient inventors who happened to believe that everybody in the world and especially patent examiners ought to be as thoroughly acquainted with their inventions a s they themselves were. To such of my misguided friends, I must recall the fact t h a t the patent examiner here in the United States or a n y other country is a man a t whom are flung every d a y new ideas widely different in scope, in direction and in details. Many of these ideas are undigested or unclearly expressed. Other ones are the result of months and years of mature and deliberate specialization and i t is hardly t o be expected t h a t a man, however open-minded he may be, should at the first glance be able t o penetrate the subject as deeply a s the intelligent, specialized inventor. T h e standpoint the examiner takes in a case where things are not very clear is t h a t of a representative of the average uninitiated public whose interest he has t o protect as well a s t h a t of the inventor. His attitude is best summed u p in slang: “ I a m from Missouri,” and it becomes the task of the inventor of “showing” and “showing why.” I n several of my experiences with the patent examiners here and abroad, I have felt very thankful for the objections which were made t o m y texts and t o m y claims because I was shown either t h a t I was not sufficiently explicit or concise, and by making the required amendments, I avoided much future trouble in t h e eventuality of a n infringement. It may be a consolation t o the United States patent examiners t o know t h a t their colleagues of other countries, for instance England, Germany and Austria, are criticized just a s much b y some diss’atisfied and narrow-minded inventors, although their attitude is just as fair, unbiased and open-minded. Summing up, I could hardly suggest a n improvement in the United States Patent law without curtailing t h e privileges and interests of the poor inventor. If I venture t o make one suggestion, it mould be t o propose a n act of reciprocity, lyhich would consist in exacting compulsory working of all patents taken here b y non-citizens of the United States and whose countries have patent laivs with a clause for compulsory working which means great hardship for the American inventors who take out patents abroad. On the other hand, it is very unfortunate t h a t although the laws for filing and registering a patent in the United States are almost all t h a t can be desired, I must lift m y voice of protest when it comes to testing the rights of the in-
ventor before the courts. Here the poor inventor is entirely a t the mercy of a legalized system of piracy a s carried out by infringers helped by all the tricks of lawyers, and let me say to the shame of.our own profession, helped very often by experts who will back t h e lawyer to confuse a n issue before a judge who most of the time is already incompetent on account of lack of theoretical or practical knowledge in the a r t . This game is so successfully played, t h a t I know of rich companies here in the United States whose main method of procedure is to frighten, bulldoze and ruin financially the unfortunate inventor who happens to have a patent which he is not willing to concede to them on their own terms; t h a t is t o say, for next to nothing. I could cite you several examples of prosperous companies where the money paid in salaries for the technical or scientific staff and for royalties is a mere bagatelle if compared t o the fortunes paid annually to their lawyers who happen t o look after their patent litigations. Thus has it come about that a n otherwise liberal patent law intended for the protection of the poor inventor has become a drastic method for building u p powerful privileges in the interest of big capitalistic combinations. The sooner we have a special and adequate patent court t o which all patent litigation can be referred and which c a n operate without the absurd delays and abominable expenses now- involved in patent suits, the sooner will cease this arrogant frustration of the generous efforts of those who framed our patent laws.
NOTES. PHOSPHORUS FOR THE HEMPEL PIPETTE. The method of preparing sticks of phosphorus for use in the Hempel pipette for the determination of oxygen, a s usually described, does not take advantage of a little device which suggested itself to me some years ago and which I find exceedingly satisfactory. I proceed a s usual until the liquid phosphorus is expected to solidify in the glass tube. Phosphorus is very prone to undercooling and i t often requires considerable patience to await its solidification. When, however, the liquid phase is brought into contact with the solid phase equilibrium is promptly established and the column of liquid phosphorus solidifies the very instant the temperature of the normal point of solidification is reached. Contact can readily be insured because the liquid phosphorus usually protrudes slightly from the end of the glass tube and if a piece of solid phosphorus is suspended by a wire in the cooling bath one can easily bring solid and liquid together while the latter is cooling. I t will be found t h a t this little device not only simplifies and expedites the whole operation b u t insures greater uniformity and f a r greater yield of perfect sticks. H.AUGUST HI-NICKE. MITCHELL-WALKER MOISTURE TEST. During the past year we made investigations in rapid moisture determinations in dairy products. LVe personally examined a number of the tests on the market and consulted the reports of other chemists on the other tests in vogue.
