WHAT THE CHEMISTRY STUDENT SHOULD KNOW ABOUT PATENT PROCEDURE I. DEVELOPMENT OF OUR PATENT SYSTEM LLOYD V A N DOREN, WARPIELD& WATSON, 247 PARKA m . . NEW YORKCITY The outstanding position occupied today by the science of chemistry and the chemical industry in the business of our country and of the world makes it highly d e s i r a b l t i t may be said perhaps even necessary-that our chemical industry be placed on as firm a foundation as possible. There are various ways and there are various factors which will contribute in order to accomplish this result. One of the contributing factors, and perhaps as important if not more important than any other, is the strength of the chemical patents which are granted by our Patent Officeon chemical inventions-be they process or product. This article is the first of a series which will be presented with the object and the hope that therefrom the student of chemistry will acquire a t least a somewhat fuller knowledge of chemical patents and the procedure in accordance with which they are granted. The end sought is that when he passes into the industry and, in the course of his duties makes an invention or is placed in charge of others who make inventions, he will be the better able to assist the attorney in whose charge the preparation of the application for Letters Patent is placed. Also he will be the better qualified to evaluate and properly limit the scope of his own inventions and the inventions of others and will be the more competent t o perform his own duties and direct the investigative activities of others. Accordingly, it seems proper to take up the discussion of patent procedure, more particularly as it relates to chemical patents a t the point of inception of our present patent system, and it might also be said a t the logical starting point, i. e., the Constitution of the United States. It was with remarkable vision and understanding that those charged with the drafting of the Constitution foresaw the requirements which a system should possess in order to insure that the general public and those making inventions would be mutually benefited. Of equal importance was their foresight in providing a system which would be and has been the very foundation of our industrial development and a great incentive to such development. To provide for such a system our Constitution declares that, "The Congress shall have power.. .to promote the progress of science and useful arts by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." This is section VIII of Article I. It was reputed that James Madison was largely instrumental in introducing this provision into the con~titution.~ Wyman, J. PPatent OficeSociety, IX,P. 71 (1926-1927).
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Most of the present-day patent systems go back historically to the old English system. This, however, does not detract from the foresight and vision of him who wrote the above provision into our Constitution. The English system has developed rather through a process of evolution than logically-it might be said also somewhat irregularly. The aim, however, has always been to foster new industries rather than to directly stimulate inventive genius. I n the sixteenth century the royal purse was frequently in need of replenishment, and a favorite ,means was by the granting of monopolies in exchange for cash. The abuse of this procedure gave individuals the sole rights to sell the ordinary commodities of life, such as salt, sugar, and tobacco and the royal power was limited quite early through legislation. It is well recognized today that a government monopoly for the sale, for example, of tobacco or matches, or sugar would be highly undesirable, and so it will be realized that the conditions must have been intolerable when all kinds of the usual commodities of life were controlled by individuals through monopoly grants from the crown. The statute abolishing such abuses has now become famous as the "Statute of Monopolies." It, however, made an exception in the recognition that the crown had the power or should retain the power to grant a monopoly to "the true and the first inventor" of "any manner of new manufactures within this realm." The Statute of Monopolies was enacted in the year 1623 and the exception has proved to be of the greatest importance as the foundation upon which the English patent system has been built. It perhaps may properly be said that the whole complex structure of patent law throughout the world is based on this rather slender foundation. In exercise of the power given to Congress under the Constitution, the first patent law was enacted in 1790. Since then several patent statutes have been enacted from time to time, up to that which we have a t present. The early statute provided for no examination as to operability and novelty and i t was not required that the individual making the application should himself be the inventor. I t is rather difficult to assign a definite time a t which the present statute was passed, in as much as there have been changes and modifications a t intervals so that in its present form i t may be looked upon as the result of a certain process of evolution. However, the main provisions of our present statute were established in 1836, and although changes have been made a t various times, the underlying principles have undergone little modification since their enactment. It was in accordance with this Act that our present system of examination as t o operability and novelty came into being. The credit for this system, which has been the pattern for many of the patent systems in the world, should be given to Senator Ruggles of Maine. Sir Robert A. Hadfield of Sheffield, England, one of the world's greatest
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inventors, a leading authority on metallurgy, and a steel manufacturer of world-wide reputation, said : As showing how Patents for Inventions strike a 'hew" nation, it may he mentioned that the Japanese Government, when considering the establishment of a patent system on the lines of that created by the American Patent Act of March 1, 1899, appointed Mr. Takanashi their special commissioner to Washington, D. C. On being asked why the people of Japan desired t o have a patent system, he replied: "It is only since Commodore Perry in 1854 opened the ports of Japan t o foreign commerce that the Japanese have been trying t o become a great nation, and we have looked about us t o see what nations are the greatest, so that we can be like them, and we said: 'There is the United States not much more than 100 years old, and America not discovered by Columbus until 400 years ago.' We said, 'What is it that makes the United States such a great nation?' and we investigated and found that i t was patents, and we will have patents.'" The writer in every way agrees with this wise statement by the Japanese representative and wishes his countrymen would insist upon a British Parliament giving t o the British empire a patent law as liberal and as equitable as that of the United States of America.'
The early practice, i. e., under the Act of 1790 in connection with the granting of patents, required that each patent be signed by the President, the Secretary of State, and the Attorney General. Thomas Jefferson was Secretary of State, and the duty of examining applications and granting patents resided in his office. Jefferson was much interested in the system, apd the early patent applications were all examined by him personally. As illustrative of the patents granted under the early system, reference may be made to the fourth U. S. patent which was issued to Francis Bailey of Philadelphia on January 31, 1791. The invention pertained to methods for forming punches. I t was signed by George Washington as President, Thomas Jefferson as Secretary of State, and Edward Randolph as Attorney General. Each of these early patents also carried a notation that it was delivered to the inventor as of a certain day and the notation in this case is signed by Thomas Jefferson. At that time the patents did not go into any very great detail, nor did they contain any claims. The entire description of the patent granted to Francis Bailey is as follows: Methods not before known or used for forming punches by which t o impress on the matrices of printing types, whether such types he for letters or devices, as well as t o impress on any metal or other substance capable of receiving and retaining impressions of all marks which are difficultt o be counterfeited, and the said invention appears to he useful and important.
The early granting of patents, up to 1802, was a part of the general clerical business of the Department of State. The Patent Office, as a distinct unit, was created during that year, and Dr. William Thornton became its first superintendent at a salary of 61400 a year by appointment by the Secretary of State, Madison. The Patent Office as a separate bureau
was instituted through the action of James Madison rather than established by law. About 1810 the Patent Officereceived a particular allocation as to space when Congress provided for the purchase of accommodations for the General Post Office and for the Patent Office. The space thus provided was occupied by the Patent Office until 1836, when the building was destroyed by fire. Following the destruction of this building, Congress authorized the erection of the present Patent Office building, which consists of four wings enclosing a court approximately 264 by 106 feet in area. This building is at Ninth and F Sts., N. W., Washington, D. C. The
first wing was completed in 1840; a second wing in 1852; a third in 1856; and the fourth wing in 1867. The present series, in accordance with which our patents are numbered, began subsequent to the passage of the Act of 1836. The term of the patents was for a period of fourteen years, with the privilege of extending this period for a further period of seven years upon request. Should the inventor so desire, he might obtain, under the early patent laws, a grant for a period of twenty-one years. In 1870 the patent statutes were modified. The privilege of renewing a patent was withdrawn and the term
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definitely set for seventeen years. Our patents since then have been granted for this tern. The first patent, under what may be termed the present statute, was granted on July 13, 1836, to John Ruggles of Thomaston, Maine, "For Traction Wheels," specifically "Locomotive Steam Engine for Rail and Other Roads." It is patent No. 1. At the beginning of the present century, 640,166 patents had been granted. Patent No. 1,000,000was granted on August 8, 1911, to Francis H. Holton of Akron, Ohio, for a "Vehicle Tire." The last patent granted in the issue of December 4, 1928, bears the number, 1,894,363. This illustrates the growth in patent practice, in as much as it will he noted
that seventy-five years were required to issue the first million patents, whereas it has required only a little more than seventeen years, or since August 8, 1911, to grant 694,363 patents. Patents a t the present time are being granted a t the rate of from 750 to 950 a week. This shows the vast amount of work which is required of the examining corps in the Patent Office, but it does not evidence by any means the entire amount of such work, because there are many applications filed which do not mature into patents. This is for various reasons, and perhaps largely because the examiners in the Patent Office find that the subject matter is unpatentable, but it is frequently for the reason that the inventor or his as-
signee prefers to abandon the application rather than have i t appear as a patent. The story is told of an examiner in the Patent Office, who, about the year 1845, decided to resign from his position and did so. Shortly thereafter, upon meeting an intimate friend, he was asked by this friend as to his reason for resigning. The friend stated that he appeared to have a very good position and one in which he had pleasant associations and enjoyed his work. To this the examiner replied that he had reached the decision to resign because apparently everything possible to be invented had been invented and there would soon be no work for the examiners in the Patent Office. At the end of that year patent No. 4347 was granted, and in as much as Patent No. 1,694,363 has now been granted, one may form his own conclusion as to the wisdom and foresight of this examiner. It may seem a bit inconsistent and paradoxical to state that the field of invention becomes wider as the number of inventions in that field increases. At first thought it would seem as though the situation really should be that the more inventions there are in a given field, the narrower that field becomes. However, each invention disclosed, in the same way as each piece of research undertaken and disclosed to the world, makes possible the disclosure of several additional inventions, so that that which is apparently a paradox is rather a reality. According to the patent statutes, an individual, if the Patent Office considers him to be the first inventor of an alleged invention, is granted a patent whereby there is bestowed upon him the prima facie right to a monopoly of the fruit of his labors for seventeen years. It is frequently thought and expressed, erroneously however, that a patent grants to the individual the right to make, use, and vend that which constitutes his invention. This right was already his because it was the fruit of his own labor and came to him under the common law. What the patent does grant to an individual is the right to exclude all others from making, using, and vending that which constitutes his invention for a period of seventeen years. Stated somewhat differently, a patent grant is a contract which is entered into between the government on the one hand, representing the people of the United States, and the inventor on the other hand. The inventor is permitted to exclude all others from practising that which he has invented, for the consideration that he disclose that which he has invented in sufficient detail that a t the expiration of the patent the public may be able to avail itself of the benefits of the invention.
