We can point to it with the same pride as did Daniel Webster to Massachusetts in his famed reply to Hayne.

Yet we cannot shut our eyes to the fact that in the course of time defects have developed, and that sooner or later the examination system may be dragged down by the weight of abuses that have, like the octopus, attached themselves to it too strongly to be shaken off. Our patent system has enemies, and, while today they are silent, it needs only a change in conditions to arouse them. Many of us have not forgotten the attacks made upon it in the Granger days of the late seventies and early eighties, the days of the " Drive Well," the "Barbed Wire Fence" and the "Hip Roof Barn " patents. A fortunate change of conditions, the expiration of those patents and the "reissue" and similar decisions of the Supreme Court, all combined, then saved it from overthrow, but when other dangers menace it far better is it to consider whether any remedies are needed, and how best they can be applied, than to wait until the storm becomes a gale before reefing the sails and throwing overboard the Jonahs.

I well remember how startled I was in the summer of 1884 when told by a friend, who was in closest personal relations with Mr. Cleveland, that Mr. Hendricks had labored long and hard with Mr. Cleveland to induce him, in his letter of acceptance of the Democratic nomination for the presidency, to come out strongly and vigorously against the patent system. The "stand-patters," who fear the possible result of any attempt to eliminate the unfair practices that are at times resorted to under the cover of an examination, may be right in deprecating any agitation of the subject or modifications and changes in the system even though they be for the better. I would be the last to urge any changes were it shown that if questions. of change were brought before Congress any of the fundamental principles of the system would be jeopardized. I do not so believe, and the purpose of this paper is only to point out some of the evils, as I view them, that have developed in the system, to make some suggestions looking to their elimina

tion, and above all to invite intelligent consideration and discussions by the friends of the system of the questions raised.

I will have time to refer only to what to me seem to be the main imperfections which it has taken time to develop. These

are:

First. The inconclusiveness of the present examinations.

Second. The multiplicity of amendments and office actions which permit a virtual extension of the monopoly through delay in the issue of the patent.

Third. The multiplicity of claims.

Fourth. The undue number of appeals.

Fifth. The unsatisfactory determination of the question whether the new thing is an invented improvement.

Sixth. The complex and time-absorbing method of solving the question of priority of invention.

All of the above are more or less interwoven, and similar remedies, if remedies be needed, would apply in general to all, so it becomes somewhat difficult to separate them in presentation.

Referring first, however, to the inconclusiveness of the result of the present examination, it must be admitted that no prudent man who knows anything about the conditions surrounding the grant of a patent, in its purchase, or on embarking in manufacturing under it, pays any considerable sum therefor or invests any large amount in the enterprise without first having had made an independent validity search. In other words, he cannot safely rely upon novelty having been proven by the issue of the patent. Equally true is it that the presumption of novelty arising out of the issue of a patent has in ordinary litigation largely been reduced to a platitude. All this, doubtless, is not the fault of the system, but is due to an imperfect carrying out into practice of the theory upon which it is based. Largely it is due to the conditions under which the examination is made, and the best remedy is to be found in the employment of a larger examining force, which shall be made more permanent by the payment of adequate

salaries; by the perfection of the classification system; by adequate room and other increased facilities. Congress grants spasmodic relief in these directions, but the ever-widening field of the prior art and the increasing number of applications makes inadequate today the sufficiency of yesterday. To many the task of providing for a thorough office examination is as hopeless as would be the attempt to dam the Nile with bulrushes. Today, with about 800,000 patents issued in this country, not to mention the great number of foreign patents, with nearly 18,000 applications awaiting action by the Patent Office, a threefold increase in five years and the largest number ever known to be awaiting such action, and with probably 50,000 applications awaiting action by the attorneys, it looks as though the flood of invention might at no distant day submerge our present examination system unless it be modified. To those who fear this many suggestions of modifications that shall preserve a system founded on examination suggest themselves. How best the main features of the present examination system can be preserved may soon become a question of vital importance.

One of the plans which seems to be most feasible and which would remedy some of the other defects which I shall note is this: 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 examiners-in 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.

The advantages arising from such an examination are these: The examiners, having fewer examinations to make, could give more time to them. One thorough examination is worth half a dozen hastily made ones. The applicant would not be forced to cancel claims which he believed he was entitled to as, in fact, for various reasons, he often now is. Patents would issue at an earlier day as a multiplicity of cross-actions would be obviated and the number of appeals brought within bounds. The presumption of novelty would not be materially lessened, and the later validity search would be no more laborious.

Second. No one can successfully question that it was the intention of the framers of the Constitution, and that of Congress, in formulating the various patent statutes, to require inventors, in return for the limited monopoly conferred upon them, promptly and without undue delay to apply for and have issued their patents for their various inventions. The Constitution indicates this in granting the monopoly for a “limited" period and the statutes clearly evidence it in limiting the time of use before applying for the patent, and the time in which objections made by the Commissioner of Patents may be replied to.

That this intention has been and may be nullified is known to all familiar with Patent Office practice. An application may be kept pending in the office for substantially as many years as desired. It is easy to draw claims that are not allowable and after rejection to wait the statutory period of one year before amending, and by amendment cause a second rejection, and so on ad infinitum. That this abuse is not greater lies in the fact that most applicants are anxious to secure their patents, believing, in their innocence, that they have tapped the rock from which will flow the golden stream. Those who have had experience, however, know that after filing their applications they can manufacture for years without taking out their patents and maintain a practical monopoly, for others hesitate

to copy a device, or to practice a process, which carries some mark indicating that applications for patents thereon are pending. Especially is this the case where the manufacturer is financially strong. Therefore, it results in a practical extension of the monopoly and the nullification of the constitutional provision that the monopoly is for a limited period. The evil. is not all with the applicant, for he can now truthfully say that his application often waits months after it is filed before the first examination is had and often an equally long time after an amendment is filed. While there should be a larger force of examiners, neither that nor any limitation of time for replying to an office objection will provide the needed remedy. Two remedies suggest themselves, the first being that of the change in the method of examination before suggested. The second being that of dating all patents from the application date. The latter plan, of course, would be too drastic unless the term was extended so as to permit a reasonable time for the necessary delay in perfecting the application, and a somewhat longer time if the application become involved in an interference. The Supreme Court startled the patent world some twenty-five years ago by its "reissue" decision. Sometime it may render an equally sweeping decision in reference to patents that have been unduly delayed in their progress through the Patent Office. Self-interest, as well as fair play, should lead to some legislation looking to the uprooting of the evil referred to.

Third. I will refer but briefly to the third point where our 'examination system has developed a custom which should be changed and which can be, to a great extent, by the application of a simple rule and without legislation. For this evil the courts are not free from blame, as their construction of claims, looking more to phraseology than to substance, has led solicitors to pay too much attention to "word painting" in their desire to forestall any refusal of the courts to construe the claims of a patent so as to reach the infringement. The employment of variant language to express the same idea, to