T h e Journal of Industrial and Engineering Ghemistry
Pub l i she d by T H E A M E R I C A N G H E M I G A L S O C I E T Y
Volume IY MAY, 1912 No. 5
BOARD O r EDITORS.
Editor: M. C. W h itak er.
Associate E d itors:
G. P. Adam son, E . G. B ailey, H. E. Barnard, G. E . B arton, A. V . Bleininger, W m . B rad y, C. A . Browne, F. B. Carpenter, C. E . Caspari, V. Coblentz, W . C. Geer, W . F. Hillebrand, W . D. H om e, T . K am oi, A . D.
L ittle , C. E . L ucke, P. C. M cllhiney, W m . M cMurtrie, J. M. M atthew s, T . J. Parker, J. D. Pennock, W . D.
Richardson, G. C. Stone, E . T w itchell, R. W ahl, W . H. W alker, W . R . W h itn ey, A . M. W right. / ^ \ B L Iqn
P u b lish e d m o n th ly . S u b s c rip tio n p ric e to n o n -m e m b e rs of th e A m erican C hem ical Society , $6.00 y e arly . F o reig n p o stag e, sev e n ty -fiv e cen ts, C an a d a , C u b a a n d M exico ex ce p te d .
E n te r e d a t th e P ost-O ffice, E a s to n , P a ., as Second-class M atter.
Es c h e n b a c h Pr i n t i n g Co m p a n y, Ea s t o n, Pe n n a.
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T A B L E O F CO N TEN TS.
Ed i t o r i a l s:
The United States Paten t S ystem ... 318
Pa t e n t Sy m p o s i u m: The Inventor, the Public and the Law . B y W alter F. Rogers... 320
Patents and Chemical Industry in the United States. B y B. H erstein... 328
The Abuses of Our Paten t System . B y L. H. Baeke land... 333
Or i g i n a l Pa p e r s: Some R ecent Developments in Wood Distillation. B y Thos. W . Pritchard... 338
The Manufacture of Chloroform from Bleaching Powder and E th yl Alcohol. B y F. W . Frerichs... 345
The Causes for Variations in Volatile M atter Determ ina tions. B y S. W . P a rr... 352
Moncl Metal. B y Richard H. Gaines... 354
Free Lim e in Portland Cement. B y H. E. K iefer. . . . 358
The Chem istry of Anaesthetics, IV : Chloroform. B y Charles Baskervillc and W . A . H am or... 362
Testing Methods of Rubber Contents in R aw and Vulcanized Rubber. B y W . A . D u cca... 372
The Volatile A cidity of Gum Tragacanth Compared w ith th a t of Indian Gum. B y W . O. E m e ry 374 The Extraction of Potash and Alum ina from Feldspar. B y H . W . Foote and S. R . Scholcs... 377
A Colorimetric Method for the Determination of Carbon in Iron and Steel. B y Jerome F. K o h o u t.. 378
La b o r a t o r y a n d Pl a n t: The Distribution of Power in Portland Cement Manufacture. B y Richard K . Meade... 378
New Forms of Apparatus for Gas Analysis. B y F. M. W illiam s... 380
Cu r r e n t In d u s t r i a l Ne w s: Tannery W astes in Sewage... 382
Scientific Methods in Earthenware M anufacture... 383
The Decolorization of Sugar Juice w ith “ E ponite” . . . . 383
T he Prevention of Iron and Steel Corrosion... 383
Lohm annizing... 384
T he Influence of Additions to Bronze... 384
Copper Fungicides ... 384
T he Utilization of the Potassium Content of M inerals.. 384
Purification of W ater b y Forced O xidation... 384
T he "Chloride” W ater Purification Process... 385
The Scrpek Process of Nitrogen F ixation ... 385
Diastafor in the Textile Industry... 385
Wood Preserving... 385
A New Filtering Material for Alkaline Liquids... 385
Pum ps... 385
"R a tisa l,” a Trap Substitute... 386
A D ry Fire Extinguisher for Electric Installations 386 A New Pattern in Spray Nozzles... 386
The D igby and Biggs Dionic W ater T ester... 386
New T ank V alve ... 386
No tes and Co r r esp o n d en c e: The Paint and Varnish In dustry... 387
Determination of Manganese in Steel. A N o te... 387
1. Apocynum or Indian Hemp, Rubber. B y Charles P. F o x ... 387
N atural G as... 388
N atural Cement versus Portland Cem ent... 388
E lectric Production of Ferro-Tungsten... 388
Bureau of Standards Analyzed Sam ples... 388
Boo k Re v ie w s: “ R ubber;” Pain t Technology and Tests; Chemicals, Oils and Paints; Circular on Regulations for Illum i nating Gas; M etallurgy of Iron and Steel; Casein, its Preparation and Technical U tilization... 389
New Pu b l ic a tio n s... 391
Rec e n t In v e n t io n s... 393
Ma r k e t Re p o r t... 394
T H E J O U R N A L O F I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y . May, 191-2
EDITORIALS
TH E UNITED STATES PATENT SYSTEM.
Questions concehiing “ our p atent sy s te m ” are being discussed b y the cou ntry as never before in its history. A lw a ys an inventive people, the num ber of our granted patents has exceeded a m illion; three of the last five years our exports exceeded our im ports, and our industries have attained such m agnitude th at m anufacturers exceed im ports fifteen to one. F or a large measure of this developm ent w e know and Em peror W illiam of G erm any assured the late W . F.
D raper th at our wise p aten t system is responsible.
In the Constitution of the U nited States, A rt. 1, Sec. 8, Clause 8, we find th at ‘ ‘ Congress shall have the pow er— to prom ote the progress of science and the useful arts b y securing for lim ited times, to authors and inventors, the exclusive right to their respective writings and discoveries." P ursuant to this con- stitution-au th ority the Federal Congress a t once adopted p aten t laws. These were am plified in 1836, som ew hat revised in 1870 and consolidated w ith the revised statu tes in 1874, since when th e y have been in operation su bstan tially unchanged.
.The underlying principles of these law s are:
1. A m an’s thought, his conception, his invention, belongs prim arily and necessarily to him. It m ay be kept a secret m onopoly for generations and m ay be u ltim ately lost to the world.
2. The people desire to profit b y new and valuable inventions; prim arily b y the inspiration and sug
gestive value in the publication of e v e ry new idea;
secondarily b y the birth and developm ent of new industries, to preserve the discovery from loss, and u ltim ately to secure to the public the free use of the im provem ent.
3. T h eoretically the people should not, and p rac
tically th ey cannot, take a m an’s idea, as b y con
dem nation, w ithout givin g a fair return for its value.
But, w ith the tender of a fair return, the people’s right to secure the good of the com m unity then justifies any means of penalizing a m an’s failure to give the public the benefit of the invention.
In harm ony with these theories, first, the p rivate prop erty of the inventor is not attacked, is subject to no restrictions of w orking or com pulsory license and should b e protected b y all the pow er of the law- available in the protection of a n y other personal property. It is not in a n y sense a govern m ent granted m onopoly; it was origin ally and m ight h ave rem ained the exclusive and p riva te prop erty of the inventor.
On the contrary, it is a revelation an d inspiring suggestion on his parr which he m ust be induced to m ake public fo r th e inspiration and benefit of his fellow countrym en. Civilization cannot afford to lose the im petus which e v e ry invention gives to thousands of im provem ents, im m ediately follow ing its publication. T h e benefit to the com m unity of such prom pt disclosure seems alm ost too obvious to require argum ent, though there m ay be here and there
blind men who cannot see. W ill modern capital undertake the developm ent of a new industry under existing com m ercial conditions, requiring strenuous effort and expense w ith ou t assurance of a fair security in its reward? No experienced m anufacturer needs argum ents to convince him th a t a real promise of large profit is required to induce him to experim ent w ith his own fortune and his own business; to abandon established m ethods and set sail upon the uncharted ocean' of experim ent. No unprejudiced student of com m ercial h istory w ill question the enormous value to industrial progress of these voyages of discovery.
Compare H olland and Sw itzerland when th ey had no p aten t system w ith the adjacen t countries, Germ any, France and Belgium h aving p atent system s. Con
sider Siem en s’ failure to get a p atent in G erm any and his success in E ngland th a t placed E n glan d a decade ahead of G erm any in the steel business. The adoption b y Sw itzerland of these m ethods and the industrial rejuvenation which followed, are insuper
able facts. T h e industrial progress of a nation is proportionate to the com pleteness w ith which it protects its inventors. T h e U nited States offers the m ost perfect protection and has therefore m ade the m ost rem arkable progress. Foreign countries, in m odifying their system s as the results of experience, approxim ate ever more closely th a t of the U nited States. And, in the end, inventions m ust be pre
served for free use of the public. I t is co n trary to intelligence to perm it the entire loss of valu able arts, such as the m anufacture of m alleable glass b y the E gyp tian s and the hard tem pering of copper.
H istory has shown th a t these are no mere argum ents b u t actual conditions: causes and effects traced through centuries of experience.
B u t how m ay the people m ake a fair return in e x change for an idea? Our forefathers w isely recognized the enormous im portance to the nation of securing its publication im m ediately. M indful of centuries of experience under W illiam R ufus and the ea rly English kings, th ey shrew dly selected the only inducem ent which w ould lead the inventor to publish his in
ventions, w ould recompense him in proportion to the value of the prop erty m ade public, would lead capital to assum e the burden of exploitation, and y e t would n ot on ly preserve the invention from being lost b u t tend to prevent indefinite secret m onopoly and secure an early freedom of public use. So the people offered, as an adeq uate return fo r prom pt and com plete dis
closure and for final appropriation of the invention as public prop erty, to recognize th e first in ventor’s e x clusive right for a lim ited period.
T h e people of these U nited States, therefore, in th eir own interest cam e to th e in ventor w ith a pro
posal. A s soon as the invention is com pleted, a full, clear and ex a ct description such as w ill enable a n y one skilled in the a rt to carry ou t the invention, and ex a ct claim s of w h at is new and p aten tab le together
w ith an oath th a t he is the first inventor, shall be subm itted to the proper governm ental departm ent (P aten t Office) together with a m oderate fee for service in exam ination and publication. A fte r care
ful exam ination b y governm ent experts and proper m odification of statem ent so th a t the patent shall define the n o ve lty and lim itations of th e invention, a p a te n t shall be granted therefor, certifyin g the in
ve n tor’s title, which p a te n t to be constitutional should
“ secure to him the exclu sive right to his d is c o v e ry ” and p rotect him before the courts in the exclusive right to m ake use of and sell his invention for seven
teen years after which it shall become public property.
Observe, it is his, b u t after reasonable recompense it is opened for public use. A nd if he use it secretly for an unreasonable period, or does not show due diligence in perfecting it and placing it before the public the people refuse to recognize his right in it;
another m ay step in w ith the same invention, p atent it, and com pel the first inventor to p a y roya lty. Or if he pu b licly uses and sells it for tw o years w ithout filing his p aten t application, the people refuse to recog
nize his special prop rietary righ t and the invention be
comes public property. This is certain ly eq u ivalent to condem nation. T houghtless and ignorant people call a p a te n t a governm ent created m onopoly. This is like so m e o n e ’s definition of a lobster as “ a red fish th at craw ls b a ck w a rd ,” to w hich some w it replied
“ an excellent definition excep t th a t it is not a fish, it is n o t red, and does not craw l b ack w ard .” A paten t is n o t a m onopoly in the ordinary sense b u t a lim ited recognition of ownership, the governm ent did not create it (the inventor created it of the stu ff th at dreams are m ade of) and w h at the governm ent is doing is arranging to eq u itab ly term inate the p rivate ownership w ith ou t discouraging the inventor.
This proposal of contract is v e ry simple and virtuous in its sim plicity. On the one hand it is based on the tru th of the oath of the application and the n o ve lty of the su bject m atter. On the other hand the fair offer is based on the fundam ental wisdom of rew arding creative ingenuity, preserving progress and fostering industry. On the one hand it m ay be set aside b y an y proven fa lsity of oath of application b y incom plete inaccurate statem ent and w h olly or in p a rt b y lack of n ovelty. On the other hand everyth in g th at hum an ingenuity can devise to perfect and sim plify procedure and elim inate needless expense in securing and m aintaining patents for real inventions should be done, n o t m erely “ for the in v e n to r” b u t more p articu larly for the nation— for ourselves. Consider the industrial stim ulus to the nation, and the reduced cost to the consum er if w e could m ake a p aten t ab
solutely certain for e v e ry true invention, and un
questionable when issued. H undreds of inventions th a t are now poorly p rotected and therefore worthless to a n y one in p articu lar w ould be developed into industries. H undreds more th a t are still-born in the struggle of p o v e rty w ould be added to the sum of individual achievem ent and national prosperity.
Y o u m ay lead a horse to w a ter b u t yo u cannot m ake him drink. I t m ay be true th a t “ thé inventor
is an eccentric individual who cannot help in v e n tin g ” b u t the experience of centuries has shown th a t he is quite capable of secreting his invention, of lettin g it die w ith him if necessary rather than giv in g it to the public. T h e prosperity, of a nation consists chiefly in th e profitable em ploym ent of its labor to better p roductive advan tage than th a t of other countries.
This prosperity is based upon the stim ulation of th a t p roductive effort we m ay call invention, i. <?., the d iscovery of new and valu ab le products and b etter m achines and processes for the creation of value.
T o this end we m ust offer the inventor no mean or uncertain inducem ent to insure the disclosure of his invention, and the capitalist a fair secu rity for in
vestm ent and tim e for its proper developm ent.
H avin g made such a bargain it is to th e vita l interest of e very one of us to see th a t the public side of this con tract is adeq uately carried out. In the fullest sense of the word, every a tta ck upon the title of the inventor is a retro-active a tta c k upon ourselves.
E v e ry stum bling block placed b y public p ractice in his p ath is a stum bling block to our own success.
H is p aten t m ust have value to him and to do so m ust h ave a m oney value to the m anufacturer.
L im itation of the righ t which has w isely been granted him is n o t so m uch a sham eful breach of faith on the p art of his countrym en as a piece of arrant stu p id ity th a t kills the goose th a t lays the golden eggs. The sim ple logic which induced and created the original contract, com mands us to m aintain the wise p olicy and to see th a t it is eq u itab ly and ju s tly enforced, w ith the least possible delay, error and expense.
W h at we need is n o t new p aten t laws. Those we have are adm irable— perhaps the best in the w orld—
incom parably b etter than numerous m isbegotten bills, conceived in ignorance and sired b y dem agogery, offered to Congress w ith the hope of catchin g the socialistic v o te b y a flim sy pretense th a t such bills are “ anti- m on op oly” or “ a n ti-tru st,” whereas th e y are in fa ct recklessly destructive of our best socialistic laws, our m ost anti-m onopolistic law s— the p a te n t laws.
T h e p riva te m onopoly of inventive creation can be overcom e on ly b y ju st reward. W h at we need is b etter adm inistration of the v e ry excellent law s w e now have, b etter provision for the service th a t is paid for in the P aten t Office instead of m isapplication of these funds to other uses, more stu d y of the good principles we have instead of carping criticism of the ev il results of our own cherished adm inistration of fu n dam entally good laws. W e need a court th a t shall a p p ly out
law s consistently instead of b an d yin g these seeds of our national prosperity from d istrict to d istrict across the land to drop them sterile in the sto n y places of litigation— a court th a t shall be com petent to sift and judge the issues involved instead of confessedly draw ing lots— ignorance in one hand and bew ilder
m ent in the other. A n d after such, am endm ent of our procedure, a fter due consideration, possibly some cautious strengthening of our present law the b etter to secure for the nation th e fullest in ven tive service b y b etter securing to the inventor his tem porary reward.
320 T H E J O U R N A L O F I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y . May, 19x2 A nd this is d istin ctly your affair. Y o u suffer b y the
d elay and u n certain ty of industrial progress and you p a y the bill. These arc the absolute certainties in an y case. Y o u r life is shortened b y delaying the w orld’s progress while you live. If the inventor of a new plastic is delayed in establishing his rights in certain fields, little or no money w ill be spent in those fields until the doubt is cleared up. If patents on a protective coating for concrete can be fought through one district after another for years the m oney re
quired for new plan t to m eet you r dem and or inform you of its usefulness w ill not be invested on an un
certain ty until the first law of self-defense is satisfied.
If the patents on a new w a y of m aking sulphuric acid, after h avin g been secretly operated for ten years, are so issued to opposing interests th a t th ey overlap and the m anufacturers have to spend years in .fighting outquestions of title, you have to w ait for the progress of the industry and all its num erous dependencies.
If enormous capital is perm itted to drag out inter
ference and infringem ent suits, w hether justified or not, to the im poverishm ent of the independent in
ventors and com petitors, you not only have to get along w ithout the im provem ents and econom ical deviccs b u t you p a y the bill. I t all goes into the selling price w hether it sneaks in through the back door of m anufacturing cost or boldly marches in the front door of p atent account w ritten off. If it costs one inventor $60,000 to fight his interference suits, it costs the other side about as much and w hichever wins, you p ay the bill as soon as he can m ake y o u — lu ck y if you d o n ’t have to p a y the loser’s expenses too, either on the n e xt thing he succeeds in m aking or b y the w a y of the b an k ru p tcy court. A n d you p a y every m om ent of the day. Bed-springs, bath-tubs, soap, sa fe ty razors, wash-cloths, underwear, toilet articles, shirts, collar bu ttons,b reakfastfood sand d ish es,
carriages, autom obiles, train and car service, safety de
vices, elevators, office fixtures, typew riters and cop yin g machines, stationery, pencils, pens and printing m ethods; every convenience or econom y of the busi
ness d ay and e very evening am usem ent brings you its little bill augm ented b y this cost of litigation and delay.
Y ou can help correct the loose and w asteful a d m inistration of a wise policy. Y o u can g ive a little tim e and thought and above all enthusiasm and purpose to the spreading m ovem ent for correction.
Y o u can call the attention of m anufacturers, purchas
ing agents, proprietors, or stockholders to the m ove
ment, givin g them the articles published in this issue
of Th i s Jo u r n a l. Make them w rite to their
congressmen. C ertainly you can w rite a note to the congressman from you r d istrict and to each of the Senators from you r state, “ p u ttin g it up to him h a rd ” th a t the p atent law w e have is of inestim able value to the cou n try— its best bulw ark against mere money pow er or ordinary m onopoly, th a t subversive changes of the law m ust not be tolerated b u t th a t the practice should be sim plified and clarified so th a t the law itself stands clearly forth. T ell him how m an y thousands of dollars w orth of patented goods you make, or use, or sell per year (and you will be am azed if you figure it out) and tell him how m any people you em ploy who are dependent for their livelihood on this work. A nd you. can bring the m atter before you r business or technical associations and pass resolu
tions to the President.
T he average citizen feels th at this p aten t situation is not a m atter of concern to him, but a careful analysis of the underlying principles and conditions shows th a t it is a m atter of v ita l interest to the inventor, the m anufacturer and the consum er— to e v e ry man, woman and child in e v ery quarter of the nation.
W . M. Gr o s v e n o r.
PATENT SYMPOSIUM
THE INVENTOR, THE PUBLIC AND THE L A W .1 B y Wa l t e r F . Ro g e r s.
I am here to-night, not officially, bu t as a m em ber of the patent bar of W ashington and N ew Y ork . Y o u r m anagers believe th at m y professional view s are modified and in a measure directed b y associa
tion work. M y own idea is th at generally the patent law yers are doing representative work, and th a t on the whole th ey cand idly urge the view s of all— the inventor, the mechanic, the m anufacturer, the com bination, the public. As there are com p aratively few com binations, the m ajority of us speak for the individual, b u t we do not condemn unheard the com binations, because w e expect or desire them to be controlled and utilized in the interest of the public w ithout interference w ith their right to a fair profit.
I am told th at all these classes of men are here or represented here to-night, and in w h at I shall have
x P a p e r p re sen te d a t th e jo in t m e e tin g o f th e A m . C hem . Soc., A m . E lectro ch em ical S oc., a n d th e Soc. of Chem . In d ., N ew Y o rk , A p ril 19, 1912.
to say I follow the hint of some of you r com m ittee.
T h ey tell me th a t one-third know all about patents and th a t tw o-thirds do not.
H aving in mind also the “ rem n an t," the one-third, I propose to discuss not only the relations of th e in
ventor and the public and the law to each other from an experience and stu d y covering some th irty y ea rs—
in the P aten t office, the law school and in practice, b u t also to p u t it before you as I see it colored b y the vita l problem s of to-day.
F or a yea r or two the hundreds and thousands of individuals, of sm all and medium shops and plants based on patents, have been forgotten in the fierce discussion of the few great corporations, com bina
tions and trusts ow ning patents, and the m an y are now endangered b y the sw arm of ill-considered and hastily devised remedies intended for the few. The tru th is th at the problem s of to-d ay are in their broad aspects, though in other forms, the sam e problem s which E ngland dealt w ith n early three hundred years ago. L et us see w h at relation the inventor and the
public then bore to each other— and to monopolies—
and w h at is their relation to-day.
The p atent system of the U nited States is a de
velopm ent of the older system of G reat Britain, with, however, fundam ental differences.
T h e B ritish system arose from a negative provision in the S tatu te of Monopolies, 21 Jac. 1 (1624), based upon common law precedents, especially excep ting from a sweeping prohibition of monopolies those granted for a term of years to the im porters of a new art or trade and those granted to the “ first inven
t o r ” of “ new m an u factu res” for a term of fourteen years. The p aten t system of the U nited States rests upon a positive provision of the Constitution, havin g a brQader aim and a m arkedly different origin and expression o f method.
There is in the books and in the minds of m any historians a certain misapprehension o f the origin of the British p aten t law. It was Parliam ent which first endeavored to sustain m onopolies— the trade monopolies of the tow n guilds. T h e concentrated pow er of the guilds controlled Parliam ent through their representatives. The Crown, in the first in
stance, granted monopolies under a salu tary principle.
T h e privileges and charters and paten ts were then granted b y the Crown for the purpose of introducing new arts and trades from abroad into the country, so th a t the workmen who could not get em ploym ent in the trades because th ey were not members of the Guilds m ight receive em ploym ent under the new arts and crafts, and the new trades. T h e result, however, was such an extension of the privileges granted b y the Crown th a t th ey soon becam e abuses, far greater abuses than were the Guilds. T h e y were m ade the basis for extortion and shameless revenue- producing trickery. T h e com mon law courts con
sta n tly strove to hold even the scales of justice b e
tween the royal privilege and Parliam ent as repre
senting the Guilds. I t is to their eternal credit th at the courts evolved and b ra ve ly m aintained, as far as possible, th e doctrine which holds to-d ay as the true one.
It is not necessary in an assem blage of this sort to detail the rising of the English people against this oppression of privilege of the “ system .” A t the beginning of the 17th cen tury E lizab eth realized th at the m atter had reached the danger point. She issued her fam ous proclam ation, and her Secretary, Cecil, w rote the Parliam ent in words so a p tly descriptive of the tim es and thoughts of men th a t a p art of his letter needs to be quoted:
" I dare assure you from henceforth there shall be no more granted, th ey shall all be revoked. And bccause you m ay eat your m eat more savoury than you have done, every man shall have salt as good and cheap as he can b u y it or make it w ithout danger of th at p atent which shall presently be revoked. The like benefit shall they have who have cold stom achs both for aqua vitae and aqua composiia, and the like; and th ey th at have weak stomachs, for their satisfaction, shall have vinegar and alegar, and the like, set a t liberty. Train oil shall go the same w ay, oil of blubber shall march in equal rank; brushes and bottles endure the like judgm ent. The patent for pouldavy (sail cloth) if it be not called in, it shall be. Woade, which, as I take it, is not restrained either b y law or statute, b u t only
by proclamation (I mean from the former sowing) though for the saving thereof it might receive good disputation, yet for your satisfaction the Queen’s pleasure is to revoke that proclamation; only she praycth thus much, that when she cometh 011 progress to see you in your counties, she be not driven out of your towns by suffering it to infect the air too near them. They that desire to go sprucely in their ruffs may, at less charge than accustomed, obtain their wish. The patent for starcli which hath been so prosecuted shall now be repealed.”
T he House, filled w ith joy, sent a com m ittee to call upon the Queen and express their thanks, and on N ovem ber 30, 1601, the leader of all fem inists made her celebrated “ Golden Sp eech ” in which occurred, am ong m an y other sim ilar statem ents, the follow ing:
"Mr. Speaker, you give me thanks, but I am more to thank you, and charge you to thank them of the Lower House from me; for had I received knowledge from you, I might a’fallen into the lapse of an error, only for want of true information.
“ Since I was Queen, y e t did I never put m y pen to any grant bu t upon pretext and semblance made me, th at it was for the good and avail of m y subjects generally, though a private profit to some of m y ancient servants, who ha,ve deserved well; b u t th at m y grants shall be made grievances to m y people, and oppressions, to be privileged under color of our patents, our princely dignity shall not suffer it.
“ When I heard it, I could give no rest unto m y thoughts until I had reformed it, and those varlets, lewd persons, abusers of m y bounty, shall know I will not suffer it.”
The Queen’s bench soon had an op p ortu n ity to pass upon the principle. The leading and fam iliar case is D arcy v. Allein, 11 Coke, 84 b. Abridged, 1 B rodix P aten t Cases, 1. (See also D arcy v. Allin, 1 W eb. P. C.)
The argum ents of counsel in th at case is given in N oy, 173.
"N ow , therefore, I will show you how the judges have here
tofore allowed of monopoly— patents— which is that when any m an b y his own charge and industry, or b y his own w it or invention doth bring any new trade into the realm, or any engine tending to the furtherance of a trade th at never was used before; and th at for the good of the realm; th at in such cases the kings m ay grant to him a m onopoly— patent for some reasonable time, until the subjects m ay learn the same, in consideration of the good th at he doth bring b y his invention to the commonwealth, otherwise n ot.”
I t w ill be seen th a t the com mon law had thus pro
vided an adequate rem edy against monopolies. It classed as unlaw ful, monopolies of existing arts and trades b u t recognized the prop riety of purchasing the introduction of new trades and m anufactures b y granting a m onopoly for a lim ited term. Though legislation subsequently becam e necessary, it was not to supply a deficiency in the law , b u t to reassert the law which was being evaded and defied.
Y o u all, of course, w hether law yers or not, know th at the great nam e in law of those days is Coke.
Sir E d w ard Coke had been the law officer in the cited playing-card m onopoly case of D arcy v. Allein. He defines “ m on op oly” in term s which h ave been sig
nificantly paraphrased in recent decisions of the courts of the U nited States, n early three hundred years later. In his fam ous In stitu tes (3, 181) he says:
“A monopoly is an institution or allowance by the King;
by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling,
3 22 T H E J O U R N A L O F I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y . May, 1912 making, working, or using of anything whereby any person
or persons, bodies politic, or corporate, are sought to be re
strained of any freedom or liberty th at th ey had before, or hindered in their lawful trade.”
I t is probable th a t if E lizabeth had been succeeded b y one of equal ca p a city and of the same intense pride in her people the m atter m ight have been con
cluded, b u t as ever w ith the K in g and the com moner alike, the necessities of the exchequer drove James and Charles to perm it and even encourage excesses under their p rim arily p raisew orthy endeavors to follow E lizabeth in giving a national character to the various trades.
K eep ing in mind how b itte r w as the fight, how b it
ter the protest and the sense of personal and national outrage engendered b y these monopolies, it is of prime significance th at Parliam ent, when it enacted the S tatu te against Monopolies in 1624, m ade th a t n o ta ble exception in Section 5 in favo r of the introduction of a new trade and th a t pregnant exception in Sec
tion 6, in favor of new inventions. L et us once more read Section 6, keeping in mind the fa ct th a t the whole nation was aroused against monopolies and th a t nevertheless the nation realized the necessity of m ain
tain in g two forms of monopolies w hich th ey under
stood could best serve to check the general m onopo
lies. N ow this is the w a y the statu te read upon which the p a te n t and trade law s of G reat B ritain have rested from th a t tim e to this, the p aten t law rem ain
ing w ith ou t am endm ent until 1835.
"Provided also and be it declared and enacted, th at any declaration before mentioned shall not extend to any letters- patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole m aking or working of any manner of new manufactures within this Realm, to the true and first inventor or inventors of such m anufactures, which others, a t the time of m aking such lctters-patent shall not use, so also they be not contrary to law or mischievous to the State, b y raising prices of commodities a t home, or hurt to trade, or generally inconvenient; the said fourteen years to be ac
counted from the date of the first lettcrs-patent or grant of such privilege hereafter to be made; but th at the same shall be of such force as th ey should be, if this a ct had never been made, and of none other.”
O bserve the purpose, not so m uch to encourage and protect the original inventor, as to encourage the introduction of the new m anufacture into the realm, and th at the gran ting of the p aten t remained an exception, and was and is b y the fa vo r of the Crown.
Hapless Charles I., driven b y his m oney necessi
ties, w ent himself into business on a reckless scale.
The result was the creation of the infam ous national monopolies of glass, starch, salt, cloth-finishing, alum, soap, etc.
The licenses and holders of charters and benefits and their inspectors were veh em ently and on every hand charged w ith extortion and blackm ailing, the most offensive form of house-searching and exac
tions, and w ith bringing malicious suits and causing ruinous delays for the purpose of squeezing the “ con
sum er.”
Clarendon, in his H istory of the Rebellion, states
the result, the practice and the failure, briefly thus:
"P rojects of all kinds, m any ridiculous, m any scandalous, all very grievous, were set on foot; the en vy and reproach of which came to the king, the profit to other men, insomuch as of ¿200,000 drawn from the subjects b y these w ays in a year, scarce ¿1,500 came to the king’s use and account.”
F inally, P ym in his im m ortal speech in Parliam ent in 1640, condensed the com plaint against the abuses b y the court of the favors of the Crown and placed the monopolies first on his list of grievances. It was in this debate th a t Colepepper is credited w ith the follow ing speech relating to the practices of the inspectors and licensees when enforcing the charters and grants of the Crown, a speech com mended as a pointer to certain legislators and editors.
"These men, like the frogs of E gypt, have gotten possession of our dwellings, and we have scarce a room free from them.
They sup in our cup, they dip in our dish, th ey sit b y our fire;
we find them in our dye-vat, washbowl, and powdering-tub;
th ey share with the butler in his box, they have m arked and sealed us from head to foot. T h ey have a vizard to hide the brand made b y th at good law in the last Parliam ent of K in g James, they shelter themselves under the name of a Corpora
tion; th ey m ake bye-laws which serve their turns to squeeze us and fill their purses.”
Then when the com mon law had been evaded and defied and when the sta tu te accepted b y the ruler had been rendered p ractically n u g ato ry b y the abuse of the royal privilege, cam e the revolution which for all tim e confirmed both the letter and the spirit of the statu te.
T he S tatu te of Jam es I., the S tatu te of Monopolies, cam e over in the M ayflower w ith the pilgrims, and the patents granted b y the General Court of M assachu
setts first recognized the principle of origin ality, for th e y granted the m onopoly for certain inventions for
bidding others to use such articles unless th e y were different from those of the patentee.
I th in k no one can look upon a w avin g field of w heat or a m eadow of rustling grass w ith ou t p icturing the reaper sw inging his scythe in the sun. T o “ p a te n t”
men this brings to m em ory John Jenks, who in 1646 received a p aten t in M assachusetts for the im prove
m ent over the short, thick, straigh t E nglish scythe, of the longer, thinner, cu rved im plem ent w ith stiff
ened back, still in use, and which for so m any genera
tions cu t and gathered th e grains in the fields of our forefathers.
This idea of granting patents for new inventions prevailed in th at and other colonies. W hen the Con
stitutional Convention m et, th ey had before them and under consideration the English idea and a sugges
tion of a different idea in the practice of the colonies.
The English idea had been to encourage monopolies so th a t the introduction of a .n e w trade or a new art w as th e essence of the law . The constitutional idea, however, was th a t of encouraging dom estic invention, and in the first patent law of 1790, and in a ll'th e sub
sequent am endm ents of th a t law , the basic idea has been to encourage original invention. T h e introduc
tion of those inventions into use w as w isely left to
the incentive of business enterprise. T h e intention w as to encourage inven tive thought, to secure a dis
closure of the inventive th ou gh t as p rom p tly as pos
sible. E vid en tly, it was not deemed wise to require th a t the inventive thought, which m ight be years in advan ce of the day, should be w ithheld until the inventor had been able to m ake provision for a ctu ally introducing the m anufacture. The sooner the inven
tiv e thought was disclosed the sooner it becam c pub
lic property. The sooner the inven tive th ough t was disclosed the sooner it would be an incentive to others to im prove upon th a t in ventive thought. I t was intended to offer the strongest incentive for a prom pt application and disclosure. Inventors were to be m ade to feel the necessity of prom p tly com pleting their inventions and this th ey could do either b y a c
tu a lly reducing to practice the invention or b y filing an application for a patent. T h e y need not pro
vide, in advance, for the m anufacture, or the trading.
W hen it is conceived th a t the essential spirit of the constitution and the p aten t law is to benefit the public b y securing a disclosure, it is clear th a t the dis
closure should be prom pt and com plete.
W hen the inventor has disclosed his invention, th a t is to say, when the p aten t is granted and the disclosure is given to the public, he has done all th at he is required to do. He has com pleted his bargain.
T his it is which has distinguished the law s of the U nited S tates for over one hundred and tw e n ty years from the m ajo rity of other p aten t laws, and it is this spirit which has been recognized b y all the w orld as the ideal spirit of p a te n t law . A ll provisions of w orking, taxatio n , com pulsory license have an es
sen tially different purpose. P rim arily th e y were either revenue provisions, or the equivalent of tariff provisions. T he consistent h istory of the English p aten t law has been th a t of a trade law, and all her restrictive provisions h ave been, in effect, tariff provisions. The sam e is tru e of Canada, where the m ajo rity of applications are filed b y our citizens.
In the continental countries of E urope such p rovi
sions of law have been w ritten w ith an eye to revenue and are now m aintained under vigorous protest prim arily b y a- class of interested people w ho have in mind the additional fees.
T h e English law , w hile prim arily .a trade law, served also b y interpretation to foster and encourage inven
tion. A ll things considered, there is no more im par
tial trib u te than th a t of Bentham in “ Rationale of Rewards,” p. 92.
" I t is an instance of a reward peculiarly adapted to the nature of the service and adapts itself w ith the utm ost nicety to those rules of proportion to which it is m ost difficult for reward, arti
ficially instituted b y the legislature, to Confer. If confined, as it ought to be, to the precise point in which the originality of the invention consists, it is conferred with the least possible waste of expense. I t causes a service to be rendered, which, w ithout it, a man would not have a m otive, for rendering; and th a t only b y forbidding others from doing th at which, were it not for th a t service, it would not have been possible for them to have done. E ven w ith regard to such invention, for such there will be, when others besides him who possess the reward have scent of the invention, it is still of use b y stim ulating
all parties and setting them to strive which shall first bring the discovery to bear. W ith all this it unites every property th at can be wished for in a reward. I t is variable, equable, com
mensurable, characteristic, exem plary, frugal, promotive of perseverance, subservient to compensation, popular and reason
able.”
(Quoted b y Godbolt, 252, and Coryton, p. 37.) O ur p aten t law s express in the form of statutes the purpose of the legislators when dealing w ith a form of p rop erty of which the striking feature is, that the public is to be the legatee.
A ll law is com plicated b y the bew ildering v a rie ty of fa cts and conditions, b y the difficulty of g ettin g a t the tru th ; b u t the p atent law is in its fundam entals clear and simple.
There m ust be first the disclosure of a new idea of a means or m ethod useful in a practical art and n ot obvious even to those skilled in the art. The dis
closure is b y means of an application, and the u tility and n o ve lty are determ ined b y an exam ination in which the application m ust run the gau ntlet of all prior know ledge or prior use in this country, and all prior patents and publications, of a n y dom estic public tise or any publication more than two years prior to the application; and the possib ility of m eet
ing a rival who has already occupied the field, or of being stopped b y the ap p lican t’s previous negligence or concealm ent or b y a foreign p aten t dating back more than tw elve months.
W hen the application is allowed he has a period of six m onths in which to p a y the final fee or he m ay let his application becom e forfeited and then renew w ithin tw o years, subject, however, under a recent ruling, to have his right to renew taken aw a y b y the a c tiv ity of some rival who enters the field in th a t tim e.
M oreover, the principle of this rule obtains now in the courts in the consideration of a patent. Then after the p aten t is granted it is still open to question.
I t is only prima facie valid. The patentee has little hope of ever securing damages, b u t if he has a good p atent is p ractically certain of enjoining an infringer, provided he has the capital to conduct the suit.
T he law provides also th a t the patentee m ay, un
der conditions precedent of the statutes, am end his p aten t to more accu rately describe the illustrated invention or to lim it his claim , and m ay even reissue to enlarge his claim to in clu d e 'th e idea of m eans or m ethod which he had illustrated and described and which he had intended to claim , provided he estab lished these propositions and provided he has been reasonably diligent in applying for the reissue and is n ot held to have expressly or b y circum stances dedi
cated to the public the m atter not claim ed in the original patent.
The patentee m ay hold as infringers all who em p loy su b stan tially his idea of m eans or m ethod, if the claim of his p aten t be broad enough to cover the idea and if he is entitled to such a claim . Thus is the lim ited grant of exclusion offered the inventor, n icely balanced b y the m an y obstacles and restrictions.
B u t there are additional features which seem to tip
3 24 T H E J O U R N A L O F I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y . May, 19x2 the scale down far tow ard the p u b lic’s more selfish
interest.
A s the law now stands, if a patentee has m aintained his patent in eight circuits of the U nited States and one circuit should find his p atent invalid or should find th a t some one m anufacturing a sim ilar device is not an infringer, then his rival m ay m ake the thing in th at circuit and sell it in all the other eight circuits.
It is obvious th a t a great com bination whose w ork is based largely upon patents m ay easily prosecute its applications in the m ost approved manner, m ake v a lid ity searches and carry through elaborate and expensive interferences and infringem ent suits. It m ay also easily com ply w ith an y requirem ents which demand expenditure of cap ital or effort.
Because some of these com binations do, as thousands of individuals are obliged to do, pu t into their safes some of the patents th ey have and decline to m anu
facture, it is proposed to provide com pulsory license and com pulsory w orking and taxation and various other burdensom e requirem ents which can so easily and readily be m et b y these com binations, and w hich it would be m ost difficult for the average inventor to meet.
The average inventor loses a large p art of the life of his patent because he is in advance of the time, because he cannot interest the public, or because he finds it difficult to secure the necessary capital, and som etim es from sheer negligence or inertia.
W h at is the contract w ith the patentee? W h at are his rights?
T here has never been a n y doubt in the minds of th e courts of the prop erty right of a patentee. Chief Justice T an ey, speaking for the Suprem e Court in Bloomer v. McQucwan, 14 H ow. 539, 549, said:
"T lic franchise which the p atent grants consists altogether in the right to exclude everyo n e from making, using or vending tlie thing patented, without the permission of the patentee.
This is all th at he obtains by the p atent.”
A gain Mr. Justice Peckham in Bement v. National Harrow Company, 186 U. S. 70: 46 L. Ed. 105S, sp eak
ing for the Supreme Court, said:
“ I t was, therefore, the owner of a monopoly recognized b y the Constitution and b y the statutes of Congress. A n owner of a patent has the right to sell it or keep it; to manufacture the article himself or to license others to m anufacture it; to sell such articles himself or to authorize others to sell it. A s stated b y Mr, Justice Nelson, in Wilson r, Rousseau, (4 How. 646,674), in speaking of a p aten t:
"T h e law has thus impressed upon it all the qualities and characteristics of property for the specified period; and has enabled him to hold and deal w ith it the same as in the case of any other description of property belonging to him, and on his death it passes, with his personal estate, to his legal rep
resentative, and becomes part of the assets.’ ”
One of the older cases is Grant r. Raymond, 6 P et.
21S, .'4 t , in which the Court said:
“ A n d it cannot be doubted th at the settled purpose of the United States has ever been, and continues to be, to confer on the authors of useful inventions an exclusive right to their inventions for the tim e mentioned in their patents. I t is the reward stipulated for the advantage derived b y the public for the exertions of the individual, and is intended as a stimulus
to those exertions. The laws which are passed to give effect to this purpose ought, wre think, to be construed in the spirit in which th ey have been made; and to -execute the contract fairly on the part of the United S tates, where the full benefit has been actually received; if this can be done w ithout transcend
ing the intention of the statute, or countenancing acts which arc fraudulent or m ay prove mischievous. The public yields nothing which it has not agreed to yield; it receives all which it has contracted to receive. The full benefit of the discovery, after its enjoym ent b y the discoverer for fourteen years, is pre
served; and for his exclusive enjoym ent of it during th at time the public faith is pledged.”
A gain in United States v. American B ell Telephone Co., 167 U. S. 224; 42 L . Ed. 144, the Court said:
“ The only effect of it was to restrain others from m anu
facturing and using th a t which he invented. A fter his invention he could have kept the discovery secret to himself. He need not have disclosed it to any one. B u t in order to induce him to m ake th a t invention public, to give all a share in the benefits resulting from such an invention, Congress, b y its legislation, made in pursuance of the Constitution, has guaranteed to him an exclusive right to it for a limited time; and the purpose of the patent is to protect him in this monopoly, not to give him a use which, save for the patent, he did not have before, but only to separate to him an exclusive use. The Governm ent parted with nothing b y the patent. I t lost no property. Its possessions were not diminished. The patentee, so far as a personal use is concerned, received nothing which lie did not have w ithout the patent, and the m onopoly which lie did re
ceive was only for a few years.”
In the com p aratively recent case of Continental Paper Bag Company v. Eastern Paper Bag Company, 210 U. S. 405, Mr. Justice M cK enna quoted the above case as follows:
"Counsel seem to argue th at one who has made an invention and thereupon applies for a patent therefor occupies, as it were, the position of a quasi-trustee for the public; th at he is under a sort of moral obligation to see th a t the public acquires the right to the free use of th a t invention as soon as is conveniently possible. We dissent entirely from the thought thus urged.
Tli£ inventor is one who has discovered something of value.
I t is his absolute property. He m ay withhold a knowledge of it from the public, and he m ay insist upon all the advantages and benefits which the statute promises to him who discloses to the public his invention.”
Mr. Justice M cK enna then continued:
"A n d th e same relative rights of the patentee and the public were expressed in prior cases, and we cite them because there is som ething more than the repetition of the same thought b y doing so. I t shows th a t whenever this Court has had occasion to speak it has decided th a t an inventor receives from a patent the right to exclude others from its use for the tim e prescribed in the statute. ‘And for his exclusive enjoym ent of it during th a t time the public faith is forever pledged.’ (Chief Justice Marshall in Grant v. Raymond, 6 Pet. 243, p. 242.)”
M any circuit courts of appeals have spoken to the sam e effect. One which cites numerous authorities is Rubber Tire Wheel Co. v. Milwaukee Rubber Wprks Co.
(C. C. A .), 154 Fed. Rep. 35S.
"U n d er its constitutional righ t to legislate for the promotion of the useful arts, Congress passed the p atent statutes. The public policy thereby declared is this: Inventive minds m ay fail to produce m any useful things that they would produce if stim ulated b y the promise of a substantial reward; w hat is produced is the property of the inventor; he and his heirs and assigns m ay hold it as a secret till the end of time; the public
would be largely benefited b y obtaining conveyances of these new properties; so the people through their representatives say to the inventor: Deed us your property, possession to be yielded a t the end of 17 years, and in the meantime we will protect you absolutely in the right to exclude every one from making, using or vending the thing patented, w ithout your permission.”
N ote th at the right granted the inventor is n ot the right to m ake, use and sell the invention. He had th at a t common law. I t is the right to exclude others from m aking, using or selling for the lim ited term of his m onopoly. B u t now it is proposed to perm it an y one w ho looks w ith a longing eye upon the inven
tion to insist upon a license how ever hurtful or ruin
ous— and to clip and trim the already lim ited grant of exclusion b y requirem ents im possible of perform ance b y the average patentee, how ever energetic or earnest. The great m ajo rity of patentees w ant nothing so much as to see their inventions in use.
B y these proposals, if th e y should becom e law , no m atter how near the goal, he m ay see all his hopes slip a w a y into the hands of rivals who h ave given nothing to the public, into the hands of the v e ry com binations his invention w ould u ltim ately have checked.
I t is not the C onstitution w e followed. I t is not the law w e adopted. I t is not the bargain we made. I t is n ot the p olicy which has studded e very county, tow n and ham let w ith th rivin g independent shops and p lan ts— w ith industries w hich never could have begun or lived b u t for the protection of the p atent law. T h e effect of such laws, if adopted, will be to benefit the v e ry com binations a t w hich the bills are aimed. T h e y m ay easily follow the onerous p rovi
sions— and m ay harass e v e ry individual, under the protection of the law.
The inventor w ill then find it still harder to secure capital. A s it is now, the law enables him to get his p aten t in advance even of the dem and. H e seldom can interest cap ital until he has his p a te n t; b u t under such provisions the m ost friend ly cap ital w ill not tak e the risk of h avin g to m eet the burdensom e and harassing litigation certain to be thus imposed. The litigation now required to m aintain a p atent is cer
tain ly sufficient w ith ou t im posing this m ost v e x a tious of all forms of litigation.
. In addition to the general objections which have been suggested there are m any specific objections.
F or exam ple, the proposed bills do not take into ac
count the endless and burdensom e o u tla y p u t upon m anufacturers who have num erous alternate struc
tures devised b y various inventors em ployed a t high salaries. T h e y do not ta k e into accoun t th e effect of the certain ty of a reduction in the num ber of in
ventions produced and patented. T h e y do not take into account the probable confusion of the rights of co-workers, licensees, territorial grantees, etc.
T h e y do not tak e into accoun t the en tirely incommen
surate relation of the p en alty to the offense. T h e y do not take into account in referring to foreign countries the countries which provide for far greater protection under their patents th an does the U nited States, protecting su bstitu te structures as well as the m ain one, a provision not practicable nor wise in this country.
T h e y do not tak e into account th e fa ct th a t the prac
tical application of com pulsory license and w orking clauses has been a constant source of friction and oppression in foreign countries, nor th at the actual w orking of these clauses has resulted in benefits to th e privileged classes in foreign countries and has m ade the p atent laws a sm aller factor in the industrial progress of those countries than th ey have been in this country.
T he citation of other countries is no argum ent.
E ve n if it could be shown th a t sim ilar law s had been of some advan tage to those countries, th e conditions are not the sam e— the purpose is not the same. W e h ave no centralized, com pact, trading country. W e are a far-flung dem ocracy w ith a trem endous inter
state and interstate commerce. W e have no special classes to se rv e— and no near and more pow erful neighbor to fight th at can not be m et b y our tariff laws.
I know of no more am azing instance than this pro
je c t of men who are fighting the tariff, and special interests and m onopolies; than these proposals, whose inevitable result m ust be to cripple and bind the ve ry concerns, the individuals and the independent shops, who, protected b y their patents, are enabled to exist and th rive to the benefit of the public and in the face of the com binations.
B u t for the p atent law s there would, prob ably, be b u t one printing press com pany, b u t one typ ew riter com pany, bu t one electric com pany, b u t one adding m achine com pany— but one of m any now listed in the thousands. W here there is now one com bination there w ould be scores.
Thus, historically and trad ition ally and b y the in
terpretation of the courts, the spirit of our p aten t law s is th at of an untram m eled grant of exclusion.
I t is th a t spirit which has inform ed our law s and has m ade them so successful in practice. It w ould be an archaic and reactionary step to inject into such a sys
tem the mere trade principle of com pulsory license or com pulsory working. There is, however, a fu rth er objection, inherent in the nature of the p rop erty and in the essence of the prop erty right.
The inventor has som ething which he m ay keep secret. He need not divulge his secret. He m ay, if he chooses, em ploy his invention in some practical art. B u t no one, no law , can force him to m ake, use or sell the th in g which is the su bject m atter of his invention. He is, however, a t the m ercy of a n y one who discovers his secret and therefore is generally w illin g to accept the proposition of the G overnm ent th a t he shall divulge his secret, th a t he shall disclose it b y means of a p atent. W hen he is asked to dis
close this invention he is prom ised a reward. He is n ot promised th a t he shall h ave a right to m ake, use or sell the invention. H e has th a t alw ays. He had th at b y the common law. H e had th a t as a natural right. T h e bargain is, as I have said, th a t he shall h ave the right to exclude others from m aking, using or selling the invention. »There can be no possible lim itation upon the grant of exclusion w ithin the term s of our law s and w ithin the spirit of the Constitution.
