OUR BARGAIN WITH THE INVENTOR. A UNITED STATES patent is a contract. The parties to it are the inventor on the one hand and the people of the United States on the other. The inventor, by a public record, informs the people concerning a useful discovery which he has made, which must be original with him and new in the United States. In return, the people, by their letters patent, secure to him the exclusive right to make, to use, and to sell his invention for a limited number of years. At the end of that period the contract terminates and the discovery belongs to all the people forever. A patent, therefore, does not flow from the bounty of the community, as might a pension, or a subsidy, or a medal. It belongs to the inventor by right. It comes into existence in consequence of the legal establishment of a certain state of facts; namely, that the invention is new, useful, and original with the claimant. This disclosure is the consideration on the part of the inventor, who therefore gives to the community something of value which it did not before possess. The community gives to the inventor, not something of value which it already had, as where a part of the public domain is patented to a settler, but simply protection. If the invention is valuable, so is the protection; if the invention is worthless, the protection is without benefit; thus the contract is reciprocal and evenly balanced. The validity of a patent depends upon the maintenance of the facts established. To determine issues of validity is a function of the United States courts; to determine whether the consideration probably exists, and to make the contract itself, is the function of the United States Patent Office. "He who receives an idea from me," wrote Thomas Jefferson, "receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening mine." An idea once made known is subject to human control only when incorporate, and therefore it can become the subject of patent only when it is tangible and existent. In the beginning it may be regarded as a marvel; in time it becomes a necessity of life, a manufacture, perhaps the basis of a great industry. In a certain sense the invention then detaches itself from the inventor; for the patent no longer protects only one man in his right, but through him many men in their rights. The patent system of the United States has now completed its one-hundredth year. The experience of the century shows that the advantages incident to the patent contract constitute a sufficient incentive, not merely to lead people to publish their inventions, but to make them invent. The number of patents granted yearly has steadily augmented; it is now more than 26,000 and is increasing. Under the fostering protection of patents we have developed, and are developing, inventors as a distinctive national product; and because of this we are enabled to exhibit to the world a growth and a prosperity, as a manufacturing people, unexampled in the history of mankind. The patent contract secures to the inventor his right for a fixed period of time, absolutely and without limitation, save by the obligations which every man owes to society. It assumes that self-interest will best conduce to the development of the invention, and therefore it imposes on the patentee no recurring taxes, nor does it compel him practically to operate his device. During the protected term he may restrict or prohibit its use as he pleases. The measure of his reward is what he can get, that is, what the public chooses to pay. A man is not compelled by law to use a new invention. He probably did not feel the need of it before it came, and if he does not wish to pay the price asked, he is perfectly at liberty to let it alone. This is the way in which most people in large cities deal with the telephone. It is necessary only to wait until the patent expires, and then the patented thing may be enjoyed for all time without let or hindrance. On the other hand, there is nothing to compel the inventor to reveal his secret knowledge. He has a perfect right to keep it to himself, and to use it solely for his individual advantage; and the law will protect him in that right. He need never obtain a patent unless he chooses, no matter how greatly beneficial the new idea might be to the community. If the public wants the benefit of his discovery, it must offer a sufficient inducement to make the inventor tell what he has found out. A patent grant is therefore not made in payment for an invention, in the sense that one is a measure of value for the other, but in return for its disclosure. No one can assess the value of a new discovery to the human race for all time. The more important it is, however, the more incommensurate become the returns obtainable during the patent period. The millions made from the patents on the sewing machine, or the reaper and mower, or the telegraph, or the telephone, are utterly inconsiderable beside the enormous benefits which the public acquires through all futurity from these inventions. Whether the thing contrived is to underlie a great industry or whether it is merely an improved pin, the inventor, to be entitled to his patent, must disclose it fully, and without restriction or reservation; so that, when the patent term shall be finished, the public may be able to make and use the thing as well as he himself can make and use it. He is entitled in return to equally full, unreserved, and unrestricted protection. To lessen the enjoyment of that protection, or to limit it by harassing requirements, such as taxes or obligations to work the invention, as the opponents of the system have proposed, would amount simply to failure on the part of the people to comply with their side of the contract. In order to insure, as far as possible, that the description furnished by the inventor shall be so full, clear, and exact that any competent workman familiar with the art to which it belongs can make from that description the thing described; in order that his claims may set forth his invention and no other, so that both patentee and public may definitely learn therefrom what is protected; in order to prevent misdirected energy in the reinvention of old things, or in labor upon wild and chimerical notions; in fine, in order to avoid the grant of useless and invalid patents, we have established a system of official examination into the novelty and utility of every invention for which a patent is asked. This is the work of the Patent Office. More particularly this examination seeks to find out whether or not the invention has been patented or described in any printed publication in this or any foreign country before the applicant's discovery, and whether it has been in public use or on sale in this country for more than two years prior to his application. If it has been so patented, or described, or publicly used, it is not patentable. Logically, such an examination, if it should terminate favorably, ought to be followed by a patent guaranteed to be valid. But a perfect examination is impossible. Even if we should collect all the printed publications in the world and digest them so as to make their contents accessible, still there is no way of obtaining information as to prior invention by anybody and everybody throughout the land. The British method is to grant, as a matter of course, any regular application for a patent, no matter whether the device has been the subject of a former patent or not, and then to leave the patentees to fight out their respective rights afterward in the courts. Whether, as an abstract proposition, the examination system is better than this, is open to debate. The fact remains that our patent system, which has undeniably promoted our national prosperity, is founded on an official examination, which, as its ultimate result, tends to protect the rights of both parties to the contract. Obviously, the more thorough and intelligent the examination, or, what is the same thing, the more efficient the Patent Office, the better for the nation and for its inventors. Is the Patent Office, as now organized, efficient? If not, why not? At the very outset of this inquiry we are met by a host of anomalies. As a part of the machinery of a government no function of which is to make a profit out of the people governed, here is an institution not only self-sustaining, and as such unique, but paying into the United States treasury a surplus revenue of nearly $230,000 a year. And more than this, its accumulated profits over and above all expenses, including the cost of its building, only a part of which it is permitted to occupy, now form a fund of nearly $4,000,000. All of this vast amount has come out of the pockets of inventors, and not one cent from those of the tax-payers at large. The inventors, therefore, and not the general public, maintain-and more than maintain—the Patent Office. They have a right to demand the most efficient service that it can give them, for that is what they pay for. When a surplus is put aside, it is not an unreasonable presumption that the service is so efficient that the extra money is not necessary for further improvements. Now, let us consider the facts. The presiding officer of the Patent Office is a commissioner who, to meet all theoretical requirements, would need nothing short of omniscience. He is a judicial officer, an executive officer, a legislative officer, and an accounting officer, all in one. As a judge, his jurisdiction is both original and appellate. As a law-maker, he devises rules having the force of statutes, subject only to the perfunctory approval of the secretary of the interior. As an executive officer, he regulates and controls the ministerial affairs of the Patent Office, and commands its 589 employees. As an accounting officer, he receives the immense sums paid into his bureau and accounts for them. He is presumably an expert in every branch of applied science, a skilled mechanic, a consummate electrician, and a chemist of high ability; and perhaps he ought also to be a "lightning penman," seeing that about one tenth of his time is wasted in the clerical work of signing patents. Of all the bureau officers that have power to nominate persons to a cabinet minister for appointment, he is the only one without whose nomination the minister cannot appoint. This superior being, vested with all these multifarious capacities, we expect to obtain for the sum of $5,000 a year; which is perhaps the most remarkable fact of all. We do not get him. To make sure that we shall not, we have converted the office into political spoils, and we have filled it, not infrequently, with lawyers from the cross roads and with experts from the stump. They give up the ghost, officially, after average terms of eighteen months of the hardest work that they ever did in their lives, and then they invariably begin practice as patent attorneys. In a very few instances we have secured for a short time the services of a competent and experienced patent lawyer, such as the present incumbent, Mr. Charles E. Mitchell, of Connecticut. During such administrations, undertaken obviously by these men at no small sacrifice of personal interests, bad rules are abandoned, worthless employees are weeded out, absurd and conflicting decisions-alas for their number!-are harmonized or reversed, and the service is generally improved. At other times the office either remains in statu quo, or retrogrades. |