The sun. [volume] (New York [N.Y.]) 1916-1920, 1918-07-28
THE PATENT PROBLEM.
A Serious Discussion Of the Difficul'
tics Involved In Changing the Law.


who did not use their patents should
forfeit their rights
Let me say at the outset that the
proposition Ia not new one but at
least twenty times II has been proposed
by various parties. Indeed, so fire.
quently do this and similar more i'm
mature propositions come up that the
| Patent Law Association In Washington
| Is compelled to maintain a committee
| the duty OF which IL to appear before
the Congressional committees and adj
wise them OF THE effect which such en-
| actments would have upon the law as a
whole for 1t must be understood that
while most members of Congress are
properly anxious to improve the law
very few OF them have any minute and
| particular acQua intance with its pro-
visions or with the reasons for them.
or course such scheme would be
wholly worthless unless 1t could he uni
versaily applied; and it would be so
obviously unfair IL applied in a partial
way that that should condemn 1t. But
there are 700. 900 outstanding patents
to which 1t could not be applied; for
the Supreme Court Of the United States
has said tMcClurg VS.. Kingsland, !
How. 202) that after the issue Of
letters-patent they become property. and
no alteration OF the laws can affect the
property right. unless indeed the letters
patent be appropriated to public use
and paid for.
Another underlying mlsconception is
that patents are all upon specific arti-
| Giles, each OF which IL made under a
single patent, and that when one OF
| these articles Is not made by the paten-
| tee any one else should therefore have
| the right to make IT, Very seldom Is
/ this true 1t Is common that many
patents cover the same machine or
article and the endeavcr to determine
which of these should be said to he
forfeited for an alleged non-user would
lead to an appalling amount of litiga-
ton OF the most complex character.
need only point out that no member
of the public could undertake the
necessary pursuit OF the desired patent
unless he were so well fortified with
| this worlds goods as to fight the
! owners to a finish.
Another misconcepton Is that each
individual patent Is. substantially. q
gold mine, which Is to be worked by the
owner or taken away from him and
| worked by some one else. This Is very
far from the fact. Only about one in
ten OF the patents which are issued Ia
extensively introduced. and while sub
stantial number of the others has some
| extent of use the number of patents
which are worth any great sum 10
| small.
The day of the country boy with the
happy thought has practically passed
away. The bulk of inventions are made
by the engineering stats OF large institu-
lions, manufacturing companies or the
like. and the increment Of each invention
is relatively small; the great progress
In the economic arts is due to the con.
slant hammerings of thousands Of minds
making minor improvements. each OF
which in itself constitutes but small
part OF a complete machine which may
embrace in its construction hundreds or
even thousands of patented inventions.
The expenses OF Introduction of any well
exploited invention are very large
have known $500, 200 to be paid out be
fore any substantial returns were re.
| ceived
The utter unfarness of permitting
such an outlay TO be appropriated by
infringers after the market becomes es-
tablished. because improvements render
| the first form OF an invention obsolete
or at least not so desirable ought. |
think. to be apparent. II the original
patentee and his hackers have a large
invested capital upon which interest and
\ overhead must be paid before there is
any profit. they are quite obviously
handicapped In competition with an in
fringer who can pick up the form OF the
device covered by the supposed forfeited
patent with precise knowledge OF
| what has been done under 1t and with
the right to initiate the most improved
form on which that patent would read
with only the ordinary manufacturing
capital to be accounted for. The seri-
business Of this cannot be appreciated by
one not familiar with manufacturing and
the merchandising OF the output.
1t seems to be thought by many per-
sons. and unfortunately this idea is even
present in the minds of some legislators
who are surprised to learn that It Is Q
mistake, that the property OF a patented
in his issued letters-patent is subject 10
any within OF the public, or OF legislators
or of the courts, and in some underlined
way differs from that of other persons
In their property OF different character
| That is distinctly not the fact. A paten;
| Is in no sense charged with public In
! terest; II is the same as any other piece
OF private property.
| The Supreme Court OF the United
| States has spoken moi once or twice but
again and again, in striking condemna-
tion of that delusion, which ! think
arises largely from the fact that a
patentee obtains a theoretical monopoly
The economic fallacy OF 1t is covered by
the thought that the inventor would
make these inventions anyway, and II he
doesn't get patent on them then any
body ought to be free 10 use them, What
l have said about the cost of introducing
patented articles or machines ought TO
dispose OF that idea.
| 1t is a fact that new ideas simply can
not be marketed at all unless they are
| patented, and II they are incapable OF
patent protection no sane investor will
put a dollar into them. We have had
In our Offices instances of this. where in
ideas which are undoubtedly meritorious
and undoubtedly ought TO be introduced :
| but upon our report that they were In
| capable OF patent protection. the capital
lists have refused to proceed further and
the whole thing has been dropped. This
| is a commonplace of the profession so
far from a fact is it that It Is ad-
vantageous to the public to throw open