Patent Applications Climb Again After W a r t i m e Disruptions In Thousands .
W h a t Chemist ROBERT CALVERT, 155 East 44th St., New York, Ν. Y.
MAT τ ο DO is probably the most important question for chemists in con nection with patents, yet this subject seems to be new. To formulate an answer or even a series of opinions re quires looking both backward and forward. The chemist, first of all, should lo cate the point a t which he personally stands on t h e graph of invention and progress. Thus located, h e may judge whether h e is arriving on the field too late and visualize the limitation or scope of his opportunities. He may start his mental graph near t h e end of the previous century. A Commissioner of Patents then surveyed the past, forecast the future, and re ported that the work of the Patent Office would probably decline because most inventions had already been made. The commissioner was no doubt aware of the advances in such patented arti cles as improved butter churns that graced the farm homes of the nation, b a r b e d wire t h a t fenced the prairies, and the lead pencil with eraser end that promised almost universal acceptance. Others also were of the same opinion. Robert A. Millikan reports an authori tative lecture about 1894 by an outstanding creator of 19th century physics. T h e conclusion was that probably "all t h e great discoveries in physics h a d already been m a d e " and that the future of t h e physicist would b e largely t h e more accurate measure ment of quantities applying to phe nomena already known. But Millikan was to learn, in less than four years, of t h e n e w x-rays of Roentgen, dis covery of r a d i u m by Mme. Curie, and development of the electron theory of matter by J. J. Thomson. Then Mar coni sent sound signals through the air,
..1850 70
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hould Do About Patents
cially even if of doubtful patentability, and ( 3 ) omit other developments un less a n d until some patentable feature or good prospect for commercial use appears.
Don't Seek Patents Alone
Companies should consider patent applications on all clearly patentable or commercially promising discoveries, even if of doubtful patentability
Millikan himself won a Nobel Prize for measuring the charge of the elec tron, and still later, in 1939, Hahn split the uranium atom without knowing what he had done. The writer 40 years ago thought that he had arrived on the chemical scene too late. Yet in only two weeks follow ing the writing of the first draft of this manuscript, there appeared in the popular press such items as the news of building a pilot plant on the Carolina coast for the conversion of sea to fresh water, curing rubber by atomic radia tion without the use of either sulfur or heat, application of nylon solution to cotton textiles, making pictures bymatch light, preparation of cubic boron nitride that is harder than diamond and more resistant t o oxidation, evidence that the average production of five of even our older, heavy chemicals has more than doubled in the 10 years ending with 1955, and the report that the Nautilus had made the traditional 20,000 leagues under the sea on a supply of U 2 3 5 about the size of a golf ball, instead of t h e 720,000 gallons of oil that would otherwise have been required. The graph of progress is still in an upward trend a n d the slope is becom ing steeper. The chemist today may reasonably expect to witness doubling of the U. S. population and prob ably also of the world, and much more than doubling of the size, variety, and opportunities in the chemical industry during a lifetime. He will live in the midst of invention and progress. He will create much of it. S e e k α Proper Policy It is probably no mere coincidence that the bulk of the recent profits in
the textile industry, f o r example, have gone largely to a major chemical com pany characterized b y an active re search and patent policy, as distin guished from a much l e s s active program in most of t b e old line textile companies. While the chemist employee cannot dictate company policy, lie c a n express views that carry much weight in deter mining technical policies. A reasonable rule to advocate as t o patent policy is this: Apply for pa_tents upon dis coveries that are either ( 1 ) clearly patentable or (2) promising commer-
It is considered a mistake in most instances, on the other hand, for a com pany or a chemist to work primarily to make patentable inventions. Thomas A. Edison, Carleton Ellis, and such groups as the Universal Oil Products provide conspicuous exceptions to any generalization on this point. Inven tions, it does seem, are properly by products of work to develop original information, solve certain problems, or produce new or improved products. Like the chips in the lumber industry, they should be picked u p and utilized only as they appear and not made the primary goal of the work. This does not mean that a corpora tion or its technical workers should be patent blind. Consider, for instance, how much more valuable to the owners has been the research on nylon here and polyester fibers in England than would have been the case if patents had been omitted on those subjects. In fact, it is even questioned whether the syn-
Ten Suggestions f o r Patent Policies Ten Commandments o n patents cannot b e given. Only suggestions are offered for chemists in planning their patent policies. For this purpose it is considered t h s t the chemists should: • Locate themselves o n the patent graph. Accept the fact that they will live in the midst of continuing invention and progress and will create much of it. • Be patent conscious without making patents the primary goal of research. • Determine w h a t p a t e n t filings, including foreign applications if any, are to be made upon a given research before publication of patentable features. • Learn what i s patentable. Consider trying to patent discoveries that are strong in either patentability or commercial prospects. • Make patent disclosures complete, with alternative materials and conditions. • Apply science and b e patent conscious in solving everyday problems. • Seek to avoid infringement. • Include performance clauses, in exclusive license agreements at least, to permit recovery of r i g h t s by patent owner in case invention is not used by licensee. • Be objective and unprejudiced in judging validity of patents. • If an employer, consider a n incentive plan to stimulate diligent and successful research.
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A??L'f SCIENCE IN EVERYDAY LIFE Tco o f t e n t h e chemxst l e a v e s h i s s c i e n t i f i c a b i l i t y a t t h e l a b o r a t o r y o r in h i s b r i e f c a s e . Tr.ere a r e Eany e x a s p l e s showing t h e v a l u e of a p p l y i n g s c i e n c e t o problems a r i s i n g o u t s i d e t h e l a b o r a t o r y . Exanples o f suctt d i s c o v e r i e s t h a t have been rsade i n r e c e n t y e a r s b y p e r s o n s p e r s o n a l l y known t c t h e w r i t e r a r e the f o l l o w i n g : A n t i p e r s p i r a n t s made with aluminum hydroxy c h l o r i d e t o repla.ce t h e t o o s t r o n g l y a c i d i c a l u s i n u s ciiloride . Water s o l u t i o n s of v i t a m i n s A and D which nay be dispersed i n orange j u i c e o r m i l k o r cropped on the t o n g u e . The c h i l d no l o n g e r needs t o swallow a v i t a m i n t a b l e t o r cod l i v e r oil. Tongue d e p r e s s o r s w i t h a p i e c e o f candy i n t h e end. t o reœove o b j e c t i o n s of c h i l d r e n t o the application o f such d e p r e s s o r s . Shen, however, the i n v e n t o r s t e p s o u t of t h e p r o f e s s i o n a l atmosphere and b e c o s e s h i m s e l f d i r e c t l y r o n c e r n e d vlth t h e p o s s i b l e f i n a n c i a l income from an i n v e n t i o n , a psychological b l i n d spot often a r i s e s between the i n v e n t o r ' s judgment and t h e e v a l u a t i o n c f h i s i n v e n t i o n . That, i s p r o b a b l y t h e r e a s o n f o r s u c h s e e m i n g l y comical i n v e n t i o n s a s t h e d e v i c e f o r t i p p i n g a h a t a u t o c a l l c a l l y by a mechanism o p e r a t e d b y a t u b e e x t e n d i n g froxa a b u l b i n t h e pocket of t h e e e r . t l e n a n ; cog f e e d in the shape of a bone o r dumbb e l l - l i k e p a t t e r n ; and opaque s p e c t a c l e s f c r h e n s . These i n v e n t i o n s h a v e been l i s t e d t o g e t h e r t o show p a r t i c u l a r l y the d i f f i c u l t y o f d e c i d i n g an a d v a n c e the s i l l i n e s s o r u t i l i t y o f i n v e n t i o n s d e p e n d i n g f o r success JLc p a r * upon p u b l i c p s y c h o l o g y . Beth t h e deg b o n e of C a r l t o n E l l i s * and t h e s p e c t a c l e s f o r hens were v e r y s u c c e s s f u l c o m m e r c i a l l y . The cog bone i s s t i l l a p o p u l a r a r t i c l e . The s p e c t a c l e s f o r hens were a t . one time u s e d e x t e n s i v e l y b y p o u l t r y m s n t o decrease c a n n i b a l i s m i n w h i t e l e g h o r n l a y i n g f l o c k s . Trie h a t t i p p e r might w e l l have been y e t be s u c c e s s f u l a s a t o y o r gadget be a ne dn t may i o r a i l y anusing n a t u r e .
thetic fiber pioneers, i n the absence of the incentive provided by o u r patent system, would have taken t h e large financial risk required t o conduct the research, prove the commercial feasibility^ and build plants of sucL· size as t o return t h e first net profit. Special incentives to inventor employees is a subject that may b e argued pro arid con. T h e fact remains, however, that the few large concerns that were conspicuous for encouraging invention, b y special bonuses, 4 0 o r so years ago have been outstanding in their subsequent success.
Policy before Publication Premature publication of t h e patentable details will prevent obtaining a valid p a t e n t on the published subject matter in nearly all countries. For example, in most major foreign countries publication b y the inventor 72
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MAKE COMPLETE DISCLOSURES The chemist s h o u l d d e s c r i b e t h e g e n e r a l p r o p e r t i e s o f the s e v e r a l c l a s s e s of m a t e r i a l s t h a t a r e r e q u i r e d ! to make them work i n a c o m p o s i t i o n o r chemi c a l p r o c e s s , r e c i t e at. l e a s t t h r e e i l l u s t r a t i o n s of workable m a t e r i a l s o f each c l a s s , w h i c h t h e P a t e n t O f f i c e u s u a l l y r e q u i r e s , and s t a t e r a n g e s of p r o p o r t i o n s , and t h e c o n d i t i o n s o f r e a c t i o n or t r e a t ment. T h e w r i t e r recommends a l s o r e c i t a l o f t h e "end p o i n t " t o which t r i e t r e a t m e n t i s c a r r i e d . This end p o i n t may be e x p r e s s e d b o t h i n t h e u s u a l numeri c a l manner» such a s t h e number o f h o u r s , and a l s o in t h e c o n d i t i o n t h a t i s t o p r e v a i l a t t h e end o f the t r e a t m e n t . Thus i t may b e s a i d t h a t p h e n o l , f o r m a l d e h y d e , and acid c a t a l y s t a r e h e a t e d , i n t h e p r o p o r t i o n a n d a t the t e m p e r a t u r e s t a t e d , u n t i l th© c o n t e n t of f r e e f o r m a l d e h y d e becomes p r a c t i c a l l y c o n s t a n t , or u n t i l the A s t a g e w a t e r - s o l u b l e p h e n o l formaldehyde c o n d e n s a t i o n p r o d u c t i s p r o d u c e d , w h i c h e v e r c o n d i t i o n may be t h e o n e r e q u i r e d . The e f f e c t o f the d i s c l o s u r e i s i l l u s t r a t e d by the f o l l o w i n g i n c i d e n t . The w r i t e r , w o r k i n g w i t h Robert H. Van Schaack, J r . , a b o u t 1928, made what i s b e l i e v e d t o have been the w o r l d ' s f i r s t s y n t h e t i c r e s i n f i b e r , by h e a t i n g e t h y l e n e g l y c o l i n an open d i s h w i t h c o m m e r c i a l p h t h a l i c a n h y d r i d e in c o n t a c t w i t h a t r a c e of s u l f u r i c a c i d a s c a t a l y s t of e s t e r i f i c a t i o n . The r e s u l t i n g g l y c o l p h t h a l a t e f o l l o w e d t h e s t i r r i n g rod when t h e rod was removed from t h e m a t e r i a l . I t gave a f i n e , s i l k y , f l e x i b l e , w h i t e f i b e r . This f i b e r was shewn t o and d i s c u s s e d w i t h t h e o t h e r c h e m i s t s in t h e l a b o r a t o r y . The p h t h a l i c a n h y d r i d e t h e n used w a s the o r t h o . Subsequent work b y o t h e r s showed t h a t f i b e r s of t h i s t y p e s o f t e n e d a t t e m p e r a t u r e s t o o low f o r s u c c e s s f u l t e x t i l e u s e . I t was not u n t i l t h e i s o m e r i c t e r e p h t h a l i c a c i d became a v a i l a b l e about two decades l a t e r t h a t t h e p r e s e n t T e r y l e n e was made in E n g l a n d ( o u r Dacron) , s u i t a b l y by t h e t r a n s e s t e r i f i c a t i o n , i t i s u n d e r s t o o d , of d i m e t h y l t e r e p h t h a l a t e with g l y c o l . By g i v i n g p r o p e r a l t e r n a t i v e s f o r the p h t h a l i c a n h y d r i d e , i t s h o u l d have been p o s s i b l e i n 192S to h a v e drawn a n a p p l i c a t i o n coveririg a l s o t h e i s o m e r i c e s t e r t h a t c o n s t i t u t e s the p r e s e n t s u c c e s s f u l f i b e r .
or b y another for a day before t h e effective date of filing for the p a t e n t is not permissible. I n a few countries, including Great Britain, Australia, a n d India, the publication to b e a bar m u s t be domestic, a condition met b y t h e arrival of the publication in that country. In Canada, prior publication for two years is permissible. In the United States, publication more than a year before the application is a bar. U n d e r the rules of t h e "International Convention," patents m a y be applied for abroad, in countries adhering t o t h e convention, after publication of the invention, provided the U. S. application is filed before t h e publication date a n d provided also t h a t foreign application is made within a year of t h e date of the U. S. application. The question of what constitutes knowledge of an invention is important. A patent is not granted on a discovery known to another in the United States
before its invention by t h e applicant. It h a s been recently held that a manuscript submitted for publication, b u t not yet published, is not knowledge of what t h e manuscript contains. T h e knowledge required t o anticipate invention i s now held to b e knowledge "available to the public." Publication or public use of the invention i s usually necessary for proof of knowledge of it. Other pitfalls beyond the scope of this article are also to b e considered.
Learn W h a t Is Patentable Discoveries in t h e statutory classescompositions, processes, articles of manufacture, machines, original a n d ornamental designs, and new varieties of plants reproduced asexually—are patentable provided that, as to the first four classes, they are unobvious "as a
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