We often speak of reforming this and that evil, not because there is a universal shouting everywhere for reform at the present day, but because the reform or reforms we advocate, in our opinion, would be more than a mere change of system—they would result in permanent benefits. We never declaim against an evil until we have a remedy to propose, and have made ourselves acquainted with both the evil and proposed remedy. We are conservative in that which is, until we know of a superior substitute. It is, however, somewhat fashionable at the present day, for would-be patriots and philanthropists to talk loudly of great reforms, which, when calmly examined by the light of knowledge and reason, are nothing but destructive and injurious changes. Of this character is a reform proposed for the United States Patent Office by a Washington correspondent of the " New York Tribune," in a letter in that paper of the 15th inst. Of some things he speaks sensibly and well, but when he speake ol the way alleged new inventions should be examined, and the practice of the Patent Office in examining them, he exhibits a want of correct knowledge of his subject. He says: " With all our worship oi the Baconian philosophy, it seems never thoroughly to have penetrated the Patent Office. A machine or process is submitted to the Examiners, and they rummage their hooks, brains, and perhaps the model Bhelves, to see whether the same combination or method has been devised lor that or any other purpose before. If not, it is new, and, being of course useful, a patent is issued. The last thing the Examiner or Honorable Commissioner thinks of is to inquire whether this new invention is practically superior to others for the same purpose that have preceded it. The law enjoins no such inquiry, unless it be in regard to a claim expressly for an improvement. But has not every man a right to the exclusive use and property ot his own invention, whether it is superior, practically, to all others or not? It may be so. Let him have a patent if he insists oil it. Buff by all means let ihe office thoroughly and scientifically test the practical superiority of the invention over older ones for the same purpose, and if that is found nil, let that fact be certified, or the reverse il otherwise. In other words, let the Patent Office be organized with suitable officers, to try this important question and report in every case, not so much opinions, as honest facts, from which the public may form their own. The present state ot the Patent Law and practice is so much the reverse of this, so completely -Baconian, that the author of a worthless invention stands a better chance of getting a patent than does the author ot a valuable one. A really good invention is almost uniformly more simple and direct in its combination of means ; and just in proportion as it is simple, does it become difficult for the Examiner to find in it novelty—that almost sole legal element of patentability. He is puzzled to get hold of what he calls a "new principle " in it. It may work infinitely better than anything ever employed for the same purpose—indeed, it may accomplish its purpose while every previous machine has proved a failure—and yet, because the Examiner cannot see, from models, drawings, or specifications, a new or distinct' principle,' (0, the mystery there is in that word !) he will refuse a patent! A Baconian commission, which should practically test the results with working machines, or compare the working of the new machine with recorded results of the older ones, would probably bring in a very different verdict. So it happens that from the Patent Office, as at present organized and regulated, real, practical inventors find it very difficult to get protection, while the country at large gets unboundedly cheated." We have quoted the article fairly in order to point out its defects. The law gives the Commissioner of Patents power to decide both upon the usefulness and the novelty of an invention, and it the invention has nothing novel (new) about it, then it must be old and consequently a patent cannot be granted; to do so would be granting a patent for another man's invention. It a new machine operates better than another older one, there must b some reason for its doing so ; it must have some new part, or arrangement to enable it to operate better, consequently that new part or arrangement can be claimed and a patent will be granted if the case is carried up by appeal. There can be no doubt of this, and the writer of the article quoted, shows himself to be ignorant of law in this respect. A certain machine exactly like another may operate better, because more work has been expended upon it, but that is not an invention, and for mere excellence in workmanship, no patent can be granted. The manner proposed of carrying out the said correspondent's Baconian philosophy in the Patent Office savors strongly ot gammon. To carry it out, would require every inventor to construct and furnish a large working machine, and there would have to be commissioners appointed to test and examine the same, whose expenses, no doubt, the inventor would be called upon to pay, and after all their judgment might be inefficient, and they might condemn a good machine, and recommend a worthless one. It is quite easy to deceive some of the smartest men appointed to power and place ; witness the letter of the late Secretary of the Navy, J. H. Kennedy, on the " Ericsson," which subsequent events have proven to be a piece of nonsence. The government has already paid handsomely for useless inventioi s recommended by appointed commissioners, and we don't want government commissioners to be judges of the merits of inventions ; inventors are the best judges of the value of their own inventions, and they take patents on their own responsibility. The public are not so easily deceived with inventions as some imagine ; there would be far more deception practised if government commissioners were appointed to place their seal ot approval or disapproval on inventions. The present system of examining and granting patents has no defects in law, if there are some in practice, and these we hope to see reformed before many months pass over our heads.
This article was originally published with the title "The United States Patent Office" in Scientific American 8, 42, 331 (July 1853)