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At the same session of this Section, in 1905, former Justice Charles H. Duell in speaking of the present practice in interference cases said:

"I will content myself with characterizing it as the most complex and time-absorbing system of circumlocution and how-notto-do-it rule-created procedure ever bred by a system.”

Justice Dueli also pointed out the imperfections of our system arising from the inconclusiveness of the present examinations and the multiplicity of amendments and office actions which permit a virtual extension of the monopoly through delays in the issue of patents. The plan which he regarded as most feasible for overcoming that difficulty was as follows:

"The application when filed to be taken up for examination which should at once go to the merits as well as to form, and should and could be made more thorough than at present because of the fewer examinations to be made. To this office action the applicant should file a complete answer, and, if the objections raised by the examiner were not acquiesced in, a second action should be had, and to this a reply by the applicant. The application, as it stands after the applicant's second reply, should then pass to patent, unless the applicant should elect to take a prompt appeal to the examiners-in-chief in order to have a ruling by an appellate tribunal upon the points of difference between him and the examiner. The applicant to be permitted, but not required, to modify his application to meet the views of the examinersin-chief. Under such an examination the issued patent should bear on its face sufficient data to give to the public the substance of what would be disclosed by an examination of the file wrapper."

Why should not substantially the same procedure be adopted in reference to interferences? After all jurisdictional issues have been finally determined by the examiner of interferences, with one appeal or two if thought wise and proper-patents should issue to both or all of the contestants, each patent bearing on its face notice in reference to the particular claims in interference and of the patents containing the interfering claims, or a sufficient notice to identify the other patents when issued. Then either party would be at liberty to proceed against the other in accordance with section 4918 R. S., which gives to the

courts power to adjudge either of two interfering patents void. in whole or in part. This would surely do away with the present complex system and would affirmatively put at rest all questions of priority; whereas under the present practice the decision of that question is not binding upon the courts and may be litigated de novo notwithstanding the vast amount of time, money and energy expended upon the case during its snail-like progress through the Patent Office and the Court of Appeals of the District of Columbia. This divided jurisdiction serves no good purpose; on the contrary, it involves the expenditure of large sums of money and a delay in the issue of patents that is not conducive to the public weal. Surely no harm can come from placing each inventor on the same footing before courts qualified to determine all matters of controversy in accordance with the well established laws of evidence and legal procedure. It may be in order to suggest that the courts would then invariably have the assistance of lawyers trained in procedure and to whom the laws of evidence are not unknown quantities, making it impossible for laymen to appear as attorneys in matters of such vital. importance to inventors and the public.

Possibly it is not Utopian to believe that we may yet secure the court of patent appeals for which the Patent Committee of this Association has been laboring most earnestly for the past ten years or more. With the right of appeal to that tribunal in all cases of interfering patents, one appeal would be substituted for three, and proceedings by bill in equity under section 4915 R. S. by the unsuccessful party to an interference would no longer be in order. Possibly, also, the fact that a judgment in favor of the successful party would carry with it the right to recover costs would tend to lessen the magnitude of the records and to deter contests in respect to inconsequential issues, such contests being often bitterly fought not because of the value of the claims in issue but because of other claims in the same case.

Reforms of the nature suggested are radical. We all realize the danger of changing that which has existed for so many years, but if the friends of the patent system do not stop to reflect and consider, and by united effort endeavor to promote that which

will be productive of the greatest good to the greatest number, the enemies of the system may rise in their might and perchance effect changes which will be fatal to the interests of that class whose members have done more to advance mankind morally, physically, socially and financially, than all the sages, philosophers and statesmen, of early or modern days, collectively considered.






As a means to the end of promoting progress in the useful arts and sciences, the system now upon our statute books as the patent law of the United States is wholly effective. The result of over one hundred years of experiment and trial, it seems to embody every necessary regulation, so far as such regulation can be established by Congress, for adequately rewarding those who, through the exercise of their mental endeavor, have added to existing expedients, or created new expedients, for the general advance of industrial and material development. By this system, the creator of a new idea may acquire a just compensation commensurate with its value to the community for a specific period of time. Every person capable of creating a new idea of means or method for producing a known effect of value in the industrial world, every person capable of producing a new effect of value, is given an equal opportunity with all others to reap a reward measured by that value in competition with other expedients or effects known before or after the date of his creation. The promise that he may thus receive a reward measured by the merits of what he has accomplished is the most efficacious inducement which can be offered to lead him to turn his intellectual efforts in the direction of advancing the public good. Broad unfavorable criticism of the patent system of this country, as enacted by Congress, is unjustified. Suggestions of slight variation of the term for which the patentee's monopoly shall extend are not looked upon as constituting a censorious criticism of the system. A student of current events cannot fail to know, however, that there is a wide difference between the re

ward promised to the industrious inventor and that received by him, either voluntarily from the public, or involuntarily through the action of the federal courts. It is the purpose of this paper not primarily to criticise the courts in any action they have taken, but rather to point out what, to the student of the law, would seem to be the proper reward to which the inventor is entitled through the grant of letters patent, and how this reward should be made available to him.

It is axiomatic that a promise by the government in behalf of the people of the United States, exactly expressed, and sanctioned by the constitution, whether for reward or punishment, should be enforced to the letter, without regard to class or subject-matter. Public policy is never promoted by any course which fails in honesty. The duty of the courts to compel the reward promised to a public benefactor should not be viewed more lightly than the duty to enforce a threat directed against a malefactor. Yet it will not be denied that those statutes which punish violations of the criminal laws are enforced by the federal courts with greater vigor and unanimity against malefactors, regardless of the wealth, poverty, prominence or obscurity of the guilty, than are the promises of benefit enforced in favor of that class of benefactors who contribute to the advancement of industrial and scientific expedients. The whole fault which constitutes the cause why patentees are denied the reward for their achievement is found in the hesitancy of the courts in enforcing the letter of the law, due sometimes to obliviousness to the true rights of the inventor.

The reward promised to the patentee by the law is expressed, both in the constitution and in the statutes, as "the exclusive right" to practice the invention for a term of years beginning with the date of the grant and expiring at a certain date thereafter, now fixed at seventeen years, unless, for certain causes, the term is reduced. During this term the right is exclusive, and the promise of this right is characterized by Mr. Chief Justice John Marshall as one to the faithful observance of which the honor of the United States is pledged. (Grant vs. Raymond, 6 Pet., 218.) As was stated by Mr. Chief Justice Taney in a

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