The Washington herald., 1921-01-05
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THE REAL JOKER IN THE
PATENT BILL,

to the attention of many for the
first time that the patent bill, which
has for its main object increase of
pay for the underpsid examining
force OF the Patent Once and the
needed increase Of that force, also
contains other and possibly unde-
sirable provisions riding into legal
enactment on SO worthy An issue.
1t has been pointed out that this
bill contains a "joker." in that Sec
ton 8, thereof makes provision
whereby government employees
may secure patents without the
payment OF the Patent once fee,
and that their exploitation shall be
by governmental agency for the
beneft Of the employees. As the bill
makes no exception Of any class Of
employees, II is construed as per-
mittinE Patent once examiners to
take out patents. Former Commits
sioner Newton contends that this
does not happen because OF a law
forbidding this very thing. It may
be a question, however, whether in
view of that law and the broad
general terms Of this bill. that such
inconsistency would exist as to
make the enactment of the present
bill a repeal of the former incon-
sistent law. II the intention is 9TH
erwise. 1t should be stated in the
bill. II this practice were permit
ted, it would most surely lead to
much evil and help to destroy large
ly those features of our patent
system and policy that inspires con-
hdence and insures security to in
ventors for their ideas.
Section Is still a Joker. however.
as 1t gives the impression that gov
ernment employees cannot take out
patents. They are doing 1t all the
time. and I have never known the
except in an ethical way, where
nical employment under the govern
ment along the line of employment,
or where the work od the employe
leads directly to the inventive
achievement, and, from the obii-
cations OF the employment, natu-
rally gave the government a para
mount right. The technical en-
ploye Of the government has always
graciously given to the public the
result OF his invention, and / have
known a few such who could have
patented. but preferred to give the
public the full benefit OF their dis
covery, and no further provision
of the law is needed to stimulate
such a class to greater inventive
effort. That there exists a need
for the provision OF Section 3 has
never been apparent to the writer
in long experience in patent work,
nor has he found it to exist in the
minds of other patent attorneys.
To support such a need, it would
seem to require some special con-
dttions or circumstances that are
not generally known and which
are by no means matter Of COM
mon observation and which are
certainly not within his knowledge.
Moreover, the provision is pater-
naltstic in its nature, and imposes
costly services on an already over
burdened government. When we
fnd that this paternalistic service
Is to be without any fee being
charged the employe for the patent,
and that the bill increases the fee
for filing applications one-third of
the present fee, It does seem
proper to call this section a Joker
and to require for It more defense
than has SO far been made.
But the greatest Joker in this bill
Is In section 3, which seeks to sup
plant section 4s7 of the Revised
statutes, which gives the Commits
sioner OF Patents authority to dis
par for gross misconduct solely.
Under section 4S3 he was given au-
thority to establish regulations not
Inconsistent with law for the con-
duct of proceedings in the Patent
once, and II has been under an un-
warranted expanded construction o,
this section that rules have been
made governing the intimate con-
duct and practices of attorneys in
their business outside OF the Patent
once. The new section 4S7, as pro-
posed by this bill not only seeks to
write this doubtful exercise of au.
thority into law, but in a law that
is not tempered with the wholesome
restriction that the rules and regu-
lations so made must not be incon-
sistent with law, and it gives to the
commissioner the unheard-of auto
cratic authority to regard no law
in the making of his rules and to
disbar any person who refuses TO
comply with them. Such rules were
made by Commissioner Newton IN
a commendable effort to check the
abusive tendencies in the advertis-
ing matter of attorneys who adver-
tised largely, and while his right to
make and enforce these rules was
challenged by many as inconsistent
with law and not warranted by sec
tion 4S3 or 4S7. and as unwarranted
interference with rights of persons
and property, in no way in conson-
ance with our fundamental laws,
and as tending to a condition more
unsound and n1ischievous than the
evil sought to be corrected, yet the
tr;f ~
but little antagonism, many attor-
neys acquiescing in these rules and
regulations, though believing that
they were without the warrant of
law and a serious trespass against
them. So what was done without
due authority OF law by reason OF
a desire on the part of attorneys to
cooperate in most cases and
largely because of the duress Of
threatened disbarment, is by this
bill sought to be written into law
that is un-American, wholly at vari-
ance with the fair play spirit of our
Jurisprudence, and one that would
be intolerabIe even in Soviet Russia.
II It is wrong for patent attorneys
to advertise, let Congress say so in
a direct law. II II is wrong for
them to offer any inducsment that is
the life of advertising. Congress
should say so in a law and not leave
it to the personal views of every in
cumbent of the office of the Com
missioner of Patents. The patent So
licitor is from the nature Of his bus
mess in some way or another an ad-
vertiser. Some warranted by their
large organizations and equipment
| for large business carry their ad-
at al In Ta