On the 24th day of February, 1S39 Nathaniel Hayward, of Woburn, Mass., secured a patent for vulcanizing india rubber by means of sulphur, which patent was assigned to Charles Goodyeara man of a shrewd and future grasping mind. Some idea of the importance of this improvement may be formed from the fact that it has been a subject of continual litigation for a number of years ; yea, almost since the day the patent was issued. It is the real vulcanizing substance now used in the manufacture of india rubber fabrics of every description. The claim is in these words, " the combining of sulphur with gum elastic, whether in solution or in substance either by mixing with the digested india rubber, kneading t, or sprinkling it on the surface of sheets and pressing it in." The conspicuous litigants have been Goodyear, versus Horace H. Day. Daniel Webster distinguished himself not many months before he departed from this earth, on the side of the complainant, before Judge Grier, I at Trenton, N. J. That was a famous court scene ; there were Webster and Choate, of Massachusetts, engaged in legal conflict " with eye to eye and foot to foot opposed." The fame of such legal champions brought together a crowd of admiring and wondering list-ners, who " ne'er shall look upon the like again." The result of that hearingit was not a trial at lawresulted in victory to the side on which the great deceased lawyer and statesman had devoted his talents and learning, and the result was an injunction to restrain H. H. Day from infringing Goodyear's patent. As the patent of Hayward expires on the 24thThursday next weekit was not to be expected that the proprietors of this patent would calmly suffer it to become public property without an effort to get an extension for seven years. Indeed, we have heard it stated, that the great amount of law business connected with this patent during the past few years was all a well arranged contemplated matter, in order to present a great bill of losses to prove that the inventor, in his agents, had not received sufficient compensation for benefits conferred upon community by the invention. Be that as it maywe cannot credit such storiesthe extension was prayed for, and the case has been heard before the Commissioner of patents. It was the most extraordinary hearing for an extension of a patent that has ever been brought to our notice. It continued for eight or nine days, we believe, from the 1st inst. before the Commissioner, and eminent counsel, three or four on each side, were employed by those interested in the patent and those opposed to it. This is the first time that such a mighty quantity of speech making has been presented to a Commissioner of Patents ; it shows us something of the value of the invention. But it is only a few weeks since that all the circulars issued from the Patent Office contained these words in reference to the extension of patents, " all arguments must be submitted in writing." That rule has been departed from, and we are afraid that it may lead to an increase of expenses to inventors by opening up a new field for lawyer's fees. It appears, however, that the law, Sec. 18, Act 1836, contemplated that argumentreal argumentshould be allowed, but it makes provision only for those opposed to the extension. It says, " any pci-son may appear and show cause why said extension should not be granted," but makes mention of the applicant furnishing his petition proofs, and statements in writing only. 11 I appears to us that no provision is made in the I Patent Laws for such an exhibition of speaking and oratory, as has lately taken place be-I fore the Commissioner of Patents in reference I to the extension of this patent. The law is I plain that the Commissioner shall hear and decide upon evidente produced, both for and I against the extension of the patent, but this. I in our opinion, has reference only to state-li ments of facts, not fspeeche ; but at the samt IV imei it certainly means oral statements ; we think there can be no doubt of this, and the present Commissioner has the same right to say how they shall be made, as the previous one to say, "they shall only be in writing." The public, however, should have full information about such things ; we are only afraid, as we said before, that this new mode of hearing arguments will lead to a great evil in entailing unnecessary expenses upon inventors. The great question discussed before the Commissioner was whether he had or had not aright to extend the patent to an assignee. Those opposed to the extension contended that he had no such right, and the applicants contended he had. The law by strict construction says, and means no more and no less, than that the patent is to be extended to the patentee only. There is not a word in section 18, Oct. 1836, about an assignee, and that is the only authority the Commissioner has for his rule and guide. In England it is not uncommon to extend a patent to an assignee in conjunction with a patentee, but not otherwise, so far as we are informed. It appears to us, however, that an assignee may often suffer injustice from inf ringers, without recompense by our laws, which grant a man a patent, but do not provide for its enforcement. . In England, the Attorney General always appears for the patent plaintiff in the Court of Exchequer, but this is not the case in our patent trials. It is a hard thing for a man to purchase a patent and then have to pay high fees to counsel to bring a case of infringement before the courts of the government which has granted it, whose title deeds have been infringed. Our inventors, we believe, would rather pay $60, or more for a patent fee, if the United States District Attorneys were by law compelled to pursue inftingers. The District Attorneys might get $1,000 per year additional salary from the patent fund, for the performance of extra labor. As it regards the extension of a patent to assignees, however, it appears to us that Congress alona can do this, as no provision is made for an extension to such persons by our Patent Laws.
This article was originally published with the title "The India Rubber Case Again—Extension of the Patent"