The republic. [volume] (Washington [D.C.]) 1849-1853, 1851-02-13

To he Editor Of Tie Republic:

TO ne Editor Of the Republic: sH NJ
am informed that certain individuals are circu-
lating among members of Congress extracts from
my reports while Commissioner OF Patcnts' iAvof-
ing q reform in the Patent laws, coupled with re-
presentations based upon the fact that am In iavor
of the bill reported by Mr.. Turney, (with proper
notifications, ~ to the effect that have changed
the views which expressed in the reports alluded to-
If the individuals referred 10 deem my opinions,
past or present. Of the least importance TO the intel
igent gentlemen composing the highest Legisa-
ure known TO country. 1t 10 but just that they
should be fully understood, and not misrepresented
In the extracts referred TO- express mysen n IN
technically denominated pirates who knowing
" and wilfully appropriate the inventions oil others
70 their own use and also recommend modih
cation Of the patent laws. introducing, among
other reforms, the process Of scire acias, by which
rood patents may be established, and void and
fraudulent ones vacated and set aside.
To these opinions still adhere. am IN isvor OF
all proper legisaton TO reach the scid infringer.
and also 10 set asldc and avoid all patents, original
or reissucd, frauduently, surreptitiousy or lie
gaIy obtained, which arc nuisance to the public,
detrimcnt TO the true inventor, and which bring
discredt upon the patent system, threatening, in
the revulson of public opinion against II, TO sweep
Il entirely from existence. And with these views
am in favor Of Mr.. Turney's bill. with the modi'
fications proposed by the Hon. Mr. Norris, from
New Hampshire, which will, in my judgment, am
DIV secure both the meritorious patentcc and the
public in the enjoyment of their mutual rights.
am aware that from certain sources. Dy no
means including the class of mertorions inventors,
but from persons unjustly holding old patents that
have been extended or reissued with enlarged
claims, much opposition Is made 70 Mr.. Turney's
bill There are some sections in 1t which merely
confirm by Legislation reforms in the mode of keep
ing records in the Patent Office, which were intro
duced while was Commissioner. II docs no harm TO
confirm those reforms BY Legislation nor 70 y essen
ant parts of the bill, and may without much detri
ment to the public, be stricken out.
But there are provisions in that bill, and in the
amendments proposed BY Mr.. Norris. when, ~, ~
protection of tho paentce 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
ditiops to and extensions Of patents, and TO the
asiys facias for the repeal Of illegal and void patents
Section of tha new bill provides that, in sur
renders for reissue tho nev patent anal sm I
fcation, drawings, or model: This 10 certainly
rioht. TO 90 beyond it would open the door TO in
Vulnerable frauds upon the public and upon indi'
| viduals. -, .
manufacture, made begun before such reissue,
may DO used and sold.
This feature is violently attacked. But Is it not
lust. Who is to be blamed, and who Is to suffer,
IF the patcntee by negligence, by the incompc-
tency Of his agent, shall have failed to notify the
public, in his claim, of the extent OF his rghts-he
| innocent individual, unconsci0ue Of wrong, VINO
invests his capital and his labor in manufacture
which II claimed By nobody, or the negligent Paten-
tee who has failed 70 give notice to the public, IN
his claim, Of the extent of his invention. That
Of Ss s.snF IL hs he negsen e
The clamor against this provision shows the
character of the opposition to other parts OF the Dill
Section of the bill provides that, when apPlica-
tions are made for reissues additions to, or extcn-
sions of patents notice shall be given, and
sons interested may come in and oppose SUCH ap-
| pcations.
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 to
say surrepttiously in spite OF the vigilance OF tne
legc OF opposing reissues, Gas the public are now
permitted TO oppose extensions,) seem TO me TO DC
eminently just and reasonable.
| liz such notice had been required when waa
Commissioner, certain well known patent, which
has caused much excitement in the country, would
never have been reisspcd, 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. It was done in my absence,
| and under circumstances which throw very dark
suspicious the proprieiy OF the Transaction 30
a. the party the g;n and the ss aha ARE
4 lege to any person to como In and oppose, would
put an end TO all such proceedings in the Patent
Office.
/ DrOVlOe6
sions obtained either OF the Commissioner Of Pa
| tents or Congress, surrepttiously or frauduentiy
shall be subect to examination in courts OF justice
and vacated, if justice require.
This provision is rendered necessary by the con-
| hicting decisions of the courts. In the northern
circuit the Judges have decided that, in matters OF
reissue the Commissioner is the sole judge, and hia
decision is binding on courts q: well as indiv1du
ais, unless fraud has been practised on him. Such
an Interpretation of the law gives no opportunity
to correct the errors of that officer founded on mis-
/ take or misconduct, il the latter may be supposed
| ever to occur. .s ita
| On the other hand, in the Maryland district Q
doctrine conflicting with the just stated is held
and the defendant has been permitted to try before
jury the question whether or not the reissued pat
ent 10 for the invention that covered by the
original patent. Should not these conflicting De.
cisions be reconciled3 And should not the official
acts of the Commissioner of Patents in any case be
subject to revision in courts Of justice! can hardly
SEQ how an objection be raised against propo-
sition reasonable.
II remains now to consider the scre acias for the
repeal Of fraudulent or illegal patent, provided
| for in section 5. The section, a. proposed to DO
amended, gives the right to any person, a. in Eng
land and France, to out the scire acias to re-
peal patent It gives the right to prior patented
to repeal a subsequent patent which infringes
any trade or manufacture to repeal patent,
| interfering with his business, which he believes
to have been unjustly or fraudulently granted.
1t requires security for costs in the proceeding
| the patent to appear and defend the same. II
the proceeding Is not sued out and prosecuted IN
good faith, authorizes the court to order non
If SUITS or proceedings in law equity, are pend
ing in any court of the United States against the
person suing out the scre facias. it suspends them
until the fate ofthe patents decided On the other
hand, it compels the person contesting the Paten.
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
the patentce, If the latter shall ultimately prevail
In short, it confines the great battle between the
parties to single district, and thus tends to put an
end to litigation. Can provisions be more just and
equitable Between the parties? think not
| II also provides that, in second proceeding Q!
scire fdcias. the party suing out tho same shall
| give bond to respond both costs and damages, in
both the scire acias and action Of infringement, il
one may be pending, thus preventing infringement
| by irresponsible persons.
| In my reports expressed the opinion that one
trial in scire facias should pcrpctually establish
the patent. think, on mature reflection, that such