The republic. [volume] (Washington [D.C.]) 1849-1853, 1851-02-13
Reform in the Patent Laws.
To Me Editor Of the Rep1blie:

ing reform in the Patent laws, coupled with re-
presentations based upon the fact that am In favor
of the bill reported by Mr. Turney, (with proper
modifcations,0 to the effect that nave changed
the views which expressed in the reports alluded to-
If the individuals referred to deem my opinions,
past or present. of the least importance to the intel
ligent gentlemen composing the highest Leeisia-
ture known country. II 10 but Just That they
should be fully understood, and not msrepresented
In the extracts referred to, express myself In
very decided terms against that class OF persons
technically denominated pirates who knowing
ly and wifully appropriate the inventions oil others
10 their own use /; and also recommend modih
cation of the patent laws, introducing among
other reforms, the process of sce 5acias by which
rood patents may be established, and VOID and
fraudulent ones vacated and set aside
To these opinions still adhere am IN favor oil
all proper legislation TO reach the tcI nfringer,
and also to set aside and avoid all patents original
or ressued, fraudulently, surreptiously, or lille
gally obtained, which arc nuisance to the public,
detriment to the true inventor, and winch pring
discredit upon the patent system, threatening, IN
the revulsion of public opinion against IT, TO sweep
il entirely from existence And with these views
am in favor of Mr.. Turney's bill, with the modi.
New Hampshire, which will, in my judgment, am
ply secure both the meritorious patentee and the
public in the enjoyment of their mutual rights
am aware that from certain sources, by no
means including the class of meritorions inventors,
but from persons unjusty holding old patents that
have been extended or reissued with enlarged
claims, much opposition is made to Mr. iurney
bill There some sections in 1t which merely
confirm by legislation reforms in the mode OF keep
ing records in the Patent Ofhce, which were intro
duced while was Commissioner. II does no harm to
confirm those reforms by legislation nor Is essen
tally necessary, But they are, indeed, unlmPort-
ant parts of the BILL and may. without much detri-
ment to the public, be stricke out
But there are provisions in that bill, and in the
amendments proposed by Mr. NORRIS, wh ,r ,h IA
protection of the patentee and the patent system IT.
self as the public; for hold to the opinion that the
public has rights to be protected as well as the
natentee Those provisons relate TO re- Issues, ad-
ditions to and extensions Of patents, and to the
,ere facias for the repeal illegal and void patents
Section of tho new bill provides that, i'll sur
renders for reissue, the Hey patent shall embrace
only those matters contained In the original specl
fication drawings, or model This ID certainly
right To go beyond it would open the door TO IN
Vulnerable frauds upon the public and upon indi
viduals. =
II also provides that all machines or articles OF
manufacture, made or begun before such reissue,
may be used and sold.
This feature is violently attacked. But is it not
lust? Who is to be blamed, and who ID to suffer-
If the patentee, by negligence, or by the incompe-
tency of his agent, shall have failed to notify the
public in his claim, Of the extent OF his rights-hc
innocent individual, unconscious o. wrong, VINO
which is claimed by nobody, or the negligent paten-
tee who has failed TO give notice to the public, IN
his claim, of the extent OF his invention: lhat
honest man, will respond that the negligent patcn-
tee must suffer, if any one,
The clamor against this provision shows the
character Of the opposition to other parts OF the pill
Section of the bill provides that when apPlica-
tions are made for reissues additions to- or extern
sions of patents notice shall be given, and that per-
cons interested may come in and oppose such APP
plicatons .oo; :,
but little responsibility in the examining branch OF
the Patent Office and that reissues may be made,
if they have not already been, Improperly, not 10
say surreptitiously, in spite OF the vigilance OF the
Commissioner, notice to the public, and the privi-
legc Of opposing reissues, Gas the public are now
permitted to oppose extenslons,) seem to me 70 DC
emnently just and reasonable.
If such notice had been required when was
Commissioner, certain we'll known patent, which
has caused much excitement i'll the country, would
never have been reissucd particularly IN the form
in which it now exists, and which, in my Judg-
ment, covers what the original patentee meyer in
vented nor claimed. 1T was done In my absence,
and under circumstances which throw very dark
suspicious the proPreiy OF the transaction, 80
far as the party, the agent, and the examiner are
concerned. Notice to the public, with the privi.
lege to any person to come in and oppose, would
put an end to all such proceedings in the Patent
Office.
Section provides that all reissues and extern
sions obtained either of the Commissioner Of Pa
tents Congress, surreptitious!y or frauduently,
shall be subject to examination in courts OF Justice
and vacated, if justice require
This provision is rendered necessary by the con-
ficting decisions of the courts. In the northern
circuit the judges have decided that, in matters OF
reissue the Commissioner is the sole Judge, ana ms
decision is binding on courts as well as lndlvldu-
ais, unless fraud has been practised on him. Such
an Interpretation of the law gives no opportunity
to correct the of that officer founded on mis-.
take misconduct, II the latter may be supposed
ever to occur.
On the other hand, in the Maryland district
doctrine conflicting with the one just stated is held
and the defendant has been permitted to try before
no. pybatha mott
ent is for the invention as that covered by the
| original patent Should not these conflicting de.
cisions be rcconciled? And should not the official
acts Of the Commissioner Of Patents in any case be
subject to revision in courts of justice? can hardly
sec how an objection can be raised against propo-
stion 30 reasonable
1t remains to consider the scre tdcids for the
repeal of fraudulent illegal patent, provided
for in section 5. The section, az proposed to be
amended, gives the right to any person. as in Eng
land and France to out the scire fdcids to re-
peal patent 1t gives the right to prior patentec
to repeal subsequent patent which infringes
| his, as we'll to any individual interested In
any trade manufacture to repeal patent,
| interfering with his business which he believes
| to have been unjustly or fraudulently granted.
1t requires security for costs i'll the proceeding,
and notice TO all parties Interested in sustaining
| the patent to appear and defend the same. III
| the proceeding is not sued out and prosecuted IN
good faith authorizes the court to order non suit
If SUITS or proceedings in law or equity, are pend
ing in any court of the United States against the
person suing out the scne tdcids, 1t suspends tneh
until the fate of the patents decided On the other
hand, it compes the person contesting the patent
to keep true account of all profits accruing from
the invention in dispute, in whatever part OF the
| United States he may be using the same, and to
give ample security that he will pay them over to
the paentce, if the latter shall ultimately prevail
In short, it confines the great battle between tho
parties single district and thus tends to put an
end to litigation Can provisions be more just and
| equitable between the parties? think not
1t also provides that, in second proceeding OF
scire facias, the party suing out the same shall
| give bond to respond both costs and damages, in
both the scire acias and action of infringement if
one may be pending ,ahus preventing infringement
| by irresponsible persons.
In my reports expressed the opinion that ono
trial in scire facias should perpetually establish
the patent think, mature reflection, that SUCH
a provision would be too stringent upon public
right. Every lawyer, at all acquainted with the
practice under the patent laws well knows that
matters avoiding patent may not come TO iight
for years after it has been issued Therefore they
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