A Safe and Sound Constructive Industrial System BY JAMES H. L I G H T F T An Examiner of Patents This paper, which appears in the November number of the Journal of the Patent Office Society under the title "A Proposed De- partment of Invention and Discovery", presents a development from the matter involving fundamental truths as treated in papers read before the Examining Corps September 28, 1916, and before the Junior Examiners February 7, 1918, and is Intended to define a program or system by which those truths may be put into practical effect and without which the requirement of the Constitutional pro- vision may not be fairly complied with. COPYiRIGHT 1918 Our' 19 IQh. JUNE 22, 1918 A Safe and Sound Constructive Industrial System. By James H. Lio:htfoot, Examiner. [This paper presents a development from the matter in- volving fundamental principles as treated in papers read before the examining corps September 28, 1916, and be- fore the junior examiners February 7, 1918, and is intend- ed to define a program or system by which those principles may be put Into practical effect and without which the requirements of the constitutional provision may not be fairly complied with.] If we as individuals and as a nation are to be industri- ally and economically prepared and efficient to meet the necessities of war as well as to compete for industrial su- premacy in times of peace, it is essential that our condi- tion of' industrial procrress and preparedness be based upon certain and secure foundations. There can be no healthful growth or substantial per- manency in our national or private industries if they be founde(i uj>on unsettled, insecure, or defective rights. ^ The problems involved in making America industri- ally sound, etlicient and prepared are real, serious and most highly controlling. These problems cannot be solved except by the active application of fundamentally right principles of industrial progress, security and effi- ciency. DuVing tin' past four years or more there have been sufficient evidences of the need and value of systems of industrial, economic and military preparedness and effi- ciency, and there have l)een sufficient evidences of disas- ter due to the want of such systems to convince even the most pronounced reactionary of the urgent need of a high- ly organized and efficient in lia\i' cihU'avorc'd to jjroduce needed reforms iiiulcr discouraging circumstances, the following condi- tions requiring remedial action still exist: ( 1 ) All patents granted are still merely prima facie evidence of tlie rights of inventors to their inventions, whereas tlie grant itself and the Constitution provide for the LTiJiit of unconditional, secure aiir(('i'dr)it t(t tJir finntt. that tin* alleged invention sought to he patented must have been in fact invented^ patents have been granted and are still granted for things not invented, because of insufficient time and inadequate facilities for tlu' j)ro])er consideration of this important (piestion, and patents have been and are still refused be- cause of the want of a proper system requiring the pre- sentation of practical evidences indicating invention , for the consideration of the examiner. (o) Although the statute (4886) I'equires, as a condi- tion prect'dcfit to tiic f/rant, that the alleged invention sought to be patented must be neir. patents have been granted and are still granted for things not neWf because of the want of proper facilities and snflicient time for full and fair searches in domestic and foi-eicrn patents ant hv nsrful and undei- Statute 4S1KJ that it must be '■'' sufjicientlii useful (md important, pat- (Uits are still granted for theoretical and sometimes prac- tically useless alleged inventions, which have later consti- tuted bars to the irrant of |)atent< to inventors of real inventions that would have practically promoted the in- dustrial arts, this condition ])eing due to the fact that no facilities have been afforded for properly determining the question of utility or practicability so essential to the practical promotion of industrial progress. (o) AltlKHigh the statute (4886) requires as conditions precedent to the grant, (a) that the alleged invention must not have ])een known ru- used by others in this country before the applicant's invention or discovery theiM^of; (b) that the alleged invention must not have been in p}t})Jic nsc or on saJr in this country fur more than two years prior to the ai)plication; (c) and that the alleged invention must not have become abandoned, pat- ents generally have been granted without any investiga- tion of these important questions affecting validity, be- cause no system for the general investigation of these (Questions before the patent is granted has ever been pro- vided. (6) Although Eev. Stat. 490::) plainly requires that helpful ^information" be furnished to applicants to aid them in obtaining proper protection, patents are still granted the claims of which are so limited in scope as to be valueless to the inventor or his assignee owing to the want of a uniform standardized system of examining ap- plications from the standpoint of the inventor as well as from the standpoint of the public. (7) Although the provisions of Rev. Stat. 4904 are l)road, comprehensive and directory in providing for no- tice in all cases of interfering applications or interfering applications and patents, patents are still granted which are rendered practically valueless and the industries based therein practically ruined by the subsequent grant of interfering patents granted on copending applications of which the former patentees had no statutory notice during the copendency of such applications. (8) And patents are still litigated in courts which, with some few able exceptions, are not specially qualified promptly and properly to determine the technical ques- tions arising under the patent laws. These unfortunate actualities which have produced un- settled, unsafe and unsound business conditions would doubtless largely have been remedied had the people gen- erally been educated as to the true importance and real meaning of the Patent System ; had inventors and manu- facturers realized that it is essential to their own safe and secure interests that patent applications be examined from the standpoint of inventors as well as from the standpoint of the public, in a spirit of helpful cooperation with inventors and attorneys ; and had the Congress real- ized its constitutional responsibilities in providing men, means and all facilities for the proper, thorough and full consideration of all pending cases in the Patent Office and for the proper adjudication of all patent cases in the courts. The business interests of the nation in general, the in- terests of the manufacturer, the capitalist, the investing public and the highest interest of inventors who have ori- ginated and made all of our industries possible, all de- mand that reforms in the above-named particulars and others be effectively made in order that the foundations of industrial enterprise may be made safe, secure and free from the complexities and uncertainties of long liti- gation in the courts and of long prosecution in the Pat- ent Office. A system that may, if made uniform, remedy some at least of the defects noted above so far as the considera- tion of alleged inventions by the Patent Office is con- cerned, it is thought, should include the mature and thor- ough analysis and examination of the subject matter pre- sented in patent applications both from the standpoint of inventors and from the standpoint of the public in a spirit of helpful cooperation with inventors and attor- neys and with full consideration of the educational, con- tractual and constitutional characters of the patent grant. An attempt has been made to treat this kind of examina- tion and analysis of patent applications in a paper read before the corps of examiners on September 28, 1916, and, in a more elementary way in a paper read before the junior examiners on February 7, 1918. It is obvious that full, fair and complete examinations of ''alleged inventions" as required by statutory and constitutional provisions as above noted, may not be made by the present inadequate force of examiners, with inadequate time and inadequate facilities and equipment for such essential work. However, if full and complete provision in men, in equipment and in all facilities were made so as to enable the examiners to carry into practical eifect the plain terms of the Constitution and of the statutes as noted above, in the examination of alleged inventions in patent applications, it is submitted that there still would remain much more that should be done, beyond the scope of the examiners' work, in relation to a broader field, clearly within the plain broad terms of the constitutional pro- vision for promoting industrial progress by making in- ventors secure in their inchoate rights before application —5— is filed as well as in their rights after the patent is granted. In order to indicate comparatively the character of such a system that should be established, in order to more fully comply with constitutional and statutory re- quirements, attention is called to the remarkable system of promoting the progress and efficiency of the agricul- tural arts that has been effected by the Department of Agriculture alone and by this Department in coopera- tion with State Agricultural Colleges. A few years ago, comparatively, the Department of Agriculture was a minor section of the Patent Office, the principal function of \\^hich was to issue seed to farmers. Afterwards, in 1862, under Commissioner Isaac Newton, this agricultural section became an independent bureau, and in 1889 under Commissioner Coleman, it became an executive department of the highest rank with Cabinet representation. Today it stands as our most useful In- dustrial Department, with normally about fifteen thous- and employees engaged in promoting one general line of industry, while the Patent Office is provided with onl\' about four hundred examiners who are charged with the constitutional duty of promoting all lines of industry^ by making inventors secure and exclusive in their rights. The Section Chiefs, the Bureau Commissioners and the Secretaries of Agriculture and their associates in work, with clear conceptions of the great possiblities of promoting sound scientific agricultural development, have established an active system of promoting the prog- ress of the agricultural industry by educating the farm- er and farmer's boy, through bulletins and by per- sonal instruction and demonstration in every detail of agricultural knowledge essential to efficiency and success, so that today American farmers thus educated and or- ganized constitute the backbone and the body of a stand- ardized system that is furnishing food to all our allies and to neutrals and abundantly supplies our home mar- kets. This department has established a Bureau of Soils to teach the farmer how to prepare the soil to produce bet- ter crops and how to cure soil defects and insufficiencies. They have established a Bureau of Plant Industry to —6— investigate and teach seed selection, crop selection, bet- ter crop ])rodnction, cnltivation and ntilization. They have established a Bureau of Entomology to car- ry into elt'ect measures to eliminate loss of crops due to the enemies of plant life and growth. They have estal)lishe(i a l^urcau of C'licMnistry to deter mine tlie food values of vegetal)le growths and to deter- mine the proractically evci'v county in tin* country who tak<* the spirit of j)rogress and cllicicMicy of the departmental sys- tem directly to the farmers, and, knowing full well that the efficient fanners of tin* future are best made by in- structing the farmers* boys of today, they have estab- lishiMJ niod«'i"niz(*d systems for tcacliing and encouraging tin* work of tin* ))()ys on the farm. Tliey have establishe<] a r^ur<'au of Markets and Rural Organizations to teach the farmer the best marketing methods for the products of his fariii, for his protection and to prevent loss and failure to ac for promoting the disx-mination of knowledge of the tru«* meaning and provisions of the l^atent System. Specially is this essential because in its most funda- mental sense the Patent System is an industrial educa- tional system and it constitutes one of our most glaring national erroi'> that the public in whose interests the Pat- ent Sy>t<*m was estal)lis|ied has been kept in iirnoi-ance of its true meaning an^l intent. This Educational Bureau should be cliarged with the duty of (establishing a system to instruct the inventing public as to how to prepare to nuike inventions, how to invent in the interest of the publie, and with profit to themselves, what to invent, how to avoid losses through abandonment or want of knowledge as to how to proceed after conception or reduction to practice to avoid compli- cations, how to obtain patents of value, how to study the prior arts before inventing, how to select competent at- torneys, in fact everything connectcMl with making and patenting and maik«'ting inventions just as the Depart- ment of Agiiculture has, through bulletins, publications and tield aireiits, instructed the fanner in all respects liow to idepnie to produce crops, how to produce them, how to protect and conserve them when produced and how to market them in the mo>t efficient way. The incalculal)le \alues in time, money and energy that —9— have been wasted in inventing useless things, in reinvent- ing things that have been shown to be old, and the great values in inventions lost to the nation because the inven- tors have not known how properly to develop them to ma- terial form and how to have them properly disclosed and protected in letters patent, clearly indicate the great need of educational work along these lines. The workmen in the shops and factories, in the labora- tories and on the farms know little if anything of their rights or responsibilities in relation to invention, and manufacturers and their employees know little in rela- tion to the same. This condition has resulted in the grant of many pat- ents to employers for inventions made by employees and has resulted in granting some patents to employees that have been made by employers, all of which patents being thus rendered invalid, have produced complex business conditions. If it be true, as has been stated, that unscrupulous in- dustrial institutions have pirated inventions in various stages of their development and that an enemy propa- ganda has been extended even to pirating inventions in the making and before being patented, it is clear that inventors should be taught to protect their inventions in the making and when completed from these enemies and from others who would pirate them. And if the spirit of inventions is to be encouraged, fos- tered and promoted in the national interests, it is quite obvious that this Educational Bureau should seek to pro- mote the instruction and study in our educational insti- tutions of the philosophy of invention and the true mean- ing and importance of the Patent System. Included in this Educational Bureau may be a corps of Patent Field Agents, just as there are Agricultural, Land and Pension Field Agents, who in cooperation with inventors, attorneys, manufacturers and capitalists, should seek to aid, in every possible way, the interests of inventors and manufacturers, because in this way the public interests will best be subserved. The Division of Information of this bureau should be a well organized institution of well qualified experts who should furnish full and accurate information to solicitors, —10— inventors and industrial institutions, as to fields of va- lidity search, and as to all matters in relation to proced- ure and practices involved in the activities of the de- partment. 3. Bureau of Patents ajid Publications. Thi> institution -hould liavc an able statT of miMi to establish and maintain an efficient classification of pat- ents and an efficient classified library of all statutory publications relatins: to the industrial arts. This staff of specialists should proi)erly dicrest publications for quick and thorou<^h search purposes. It should by a re^adar standardized system seek to procure industrial literature from manufacturers and from all other sources and should classify and syst appellate board of specially qualified men would be more apt to render fair and just final decisions than would tri- bunals that are not thus specially qualified. 7. This greater and broader Department of Invention and Discovery may possibly also include a Bureau of Jji censes and Sales, just as tlie Department of Agriculture has a Bureau of Markets. Such a bureau as this may be found useful in prevent- ing impositions and frauds u[)on inventors by unscrupu- lous profiteers; in })ringing the buyer and seller together in a way that would be for the best interests of the in ventor and the capitalist; and in general by advising in- ventors and patentees how they may properly market their inventions if they be of marketable value. It is a well known fact that it has been too often the case that inventors who have produced by their own ingenuity new forms of property value to the public have derived little or no benefit from their important work, and a properly conducted division or bureau of the character named may in due time work out some scheme bv which the inventor 13— may be assured of a just reward for tiie benefits he con- fers upon the public. 8. And, as has been suggested by a very able patent la\vyer representing important industrial interests, this greater industrial department should include among its activities, a competent Patents Court of specially quali- fied jurists, to promptly and finally determine the ques- tions of validity and infringement. The foregoing is a mere cursory and inadequate pre- sentation of a very important subject and it is hoped that others abler and more capable may appreciate the im- portance of properly presenting this matter in a way that may result in iiiaiigurating an effective movement to establish a safe and sound industrial system under the constitutional provision to which attention has been in- vited. It is appreciated that there is no instantaneous pro- cess by which a bureau with fixed practices of long stand- ing can be enlarged or converted into an executive de- partment for greater and larger lines of work, but it is believed that just as some able men encouraged and sup- ported by the agricultural interests have in due time con- verted the small '^section'' of the Patent Bureau into the great Department of Agriculture, just so other able men, with clear conceptions of industrial needs, if en- couraged and supported by all industrial interests affect- ed by the Patent System, may in due time convert the Patent Office into a Department of Invention and Dis- covery, with full powers for promoting the progress of science and the useful arts under the Constitution in the interest of national and individual industrial efficiency and preparedness, and to promote and establish a safe and sound industrial system based upon secure and ex- clusive rights in letters patent. Should a program or system such as that referred to herein be put into practical etfect the following results would doubtless accrue therefrom: 1. The patent system would be popularized among the people just as the work of the Department of Agriculture has become popularized, and it would be made construc- tively efficient. 2. The Patent System having been popularized and —14— the people generally having been educated as to the true meaning and importance thereof, there would of necessity be a greater and more general development and exercise of tlic iuNcntive faculty and the jjower of original thouglit in the public and individual intcM'csts. .'1. Inventors would be encouraged more actively to promote the progress of the useful arts by the produc- tion of new and useful things, knowing as they would that they would be better protected and made more se- cure in their rights. 4. Manufacturers would feel more assured that their plants were establislied upon more secure and safe foun- dations and they would be encouraged more actively to engage in constructive industi'ial business. 5. The cajiitalist an the nroiiiotioii of safe and secure rights, the professional business and legitimate services of ethical attorneys and solicitors, whose able work for inventors and manufacturers has been a large contributing factor in our industrial growth, would be correspondingly in- creased and made of more imj)ortance and value. 7. And more important still, the industrial interests of the nation, its governmental interests, individual inter- ests, general professional interests, corporation interests, all matei'ial interests and other interests dependent tiiereupon, would be vitalize