injurious to the morals, the health, or the good order of society. It is not necessary to establish that the invention is of such general utility as to supersede all other inventions now in practice, to accomplish the same purpose. It is sufficient that it has no noxious or mischievous tendency, that it may be applied to practical uses, and that so far as it is applied it is salutary. If its practical utility be very limited, it will follow that it will be of little or no profit to the inventor; and if it be trifling, it will sink into utter neglect. The law, however, does not look to the DEGREE of utility; it simply requires that it shall be capable of use, and that the use is such as sound morals and policy do not discountenance or prohibit."

The same doctrine is enunciated in numerous decisions, and points clearly to the bounds of the Commissioner's discretion in this matter. It extends no further than that, before issuing a patent, he should satisfy himself that the invention has utility as distinguished from utter impracticability or noxious tendency, and importance as distinguished from absolute frivolity. The question of value then, in its ordinary relative signification, the patent laws very properly do not bring into consideration as in any way entering into the question of an inventor's legal title to a patent, and it is a fallacy to suppose that the system of previous examination is intended to inquire into or deter

mine the point of value as thus understood.

Curiously enough upon this same fallacy is based a very common accusation of injustice against the examining system and its administration. It is often gravely objected, and was so but a short time since by one of our leading public journals, that the power conferred upon the officers of the patent office, of judging upon the value of inventions, is too arbitrary and dangerous a power.

So it would be if it did but exist. This objection in fact evidences a popular recognition of the truth which we have been endeavoring to illustrate, that an examining system extending to the question of value could not be justly administered. To the assertion that no such power exists, it may be replied that officers of the patent office have been known to exercise such a power. True enough, and this merely goes to show that among the numerous officials of the patent office some may, from time to time, be found who, from misunderstanding of duty, exceed their powers, and usurp an unlawful jurisdiction.

That ordinarily no such power is attempted to be exercised is best proven by the large number of patents issued for things of indifferent value or of no value at all. This fact, used as an argument against the efficiency of the examining system upon the hypothesis that an inquiry into value is part of that

system, exposes at once the fallacy of that hypothesis, and that of the allegation of injustice based upon it.

Returning to the fact that officers of the Patent Office have been known to exceed their duty, by pronouncing judgment upon the value of inventions, this of course is a just ground of complaint, certainly, however, not against the examining system, in a departure from whose principles the wrong consists.

If the wrong were prevalent, there would be very good ground for asserting that the administration of the law was not in accordance with the law; but that the wrong is not prevalent the patent lists are convincing proof.

Still another very common fallacy is that which holds the examining system responsible for the many patents of little or no value, not because they refer to inventions of little or no value, but because the specifications and claims have been defectively and insufficiently drawn. This is something for which the patentees are alone responsible; it is at once their privilege and their duty to specify what it is they claim to have invented. The functions of the officers of the Patent Office are advisory no further than to ascertain before granting a patent that the alleged invention is intelligibly described, and that the claim made is certain and distinct. This much they must of necessity do in undertaking to look

into the question of novelty and utility. And if the description be not sufficiently clear, or more is claimed than the applicant is entitled to, it is their duty to tell him so, that he may amend or modify his description or claim accordingly. But it is no part of their duty to volunteer information that less has been stated or claimed than might have been; this would be uniting the functions of judge and counsel, and assuming a duty which the law very properly leaves to the inventor himself. It is a fair presumption that the inventor is a competent guardian of his own interests, so far as concerns the disclosure of his own ideas, and the presentation of his own claim. That he will claim less than he thinks himself entitled to is not to be supposed. Nor does the case differ, though the inventor himself be incompetent to state his invention and claim with proper skill, for in such case it is incumbent upon him to seek the counsel of those who can perform this duty for him. The strict impartiality requisite to the faithful performance of the duties of an officer of the Patent Office must prohibit any such officer from placing himself in the position of an advocate for the inventor whose claim he is to pass upon. It is a common expression that the Patent Office is the guardian of the interests both of inventors and the public; and this is true so far as its meaning refers to the exercise of careful and impartial dis

crimination and judgment in passing upon claims of invention.

It is the duty of the Office to give the patent asked for, if the claimant appears entitled to it, or to give him information as to any facts which may appear to render the claim made inadmissible. The rest may well be left to the inventor himself, for he is to be dealt with as an intelligent man, capable of taking care of his own interests, and not as an incompetent under wardship.

CHAPTER VI.

ORDINARY CRITICISMS OF THE PATENT OFFICE CONSIDERED.

THE observations in the preceding chapter show that the true criterion by which the efficiency and justice of the examining system is to be measured, is not the number of patents for things of indifferent or no value, nor the number of patents with indifferent claims.

The true question is, how far has the administration of the examining system been successful in preventing the issue of patents for old or unpatentable inventions, or for inventions previously patented? and how far has its success in this direction been neutralized by accidents and shortcomings injurious to inventors and the public?

The efficiency of the administration of the Patent Office, in this regard, may be superficially illustrated by official figures. Thus taking

the Commissioner's report for 1870, we find in that year 19,171 applications for letters-patent were made, and it would appear that an average of a little over one-fourth as many were rejected for want of patentability, chiefly of course for lack of novelty. Supposing all these rejections to have been for just and sufficient cause, the system in the year 1870 saved the public and inventors from the issue of nearly 5000 invalid patents.

case.

But it is not pretended that these figures show the actual state of the We cite them here as a species of starting-point and guide in estimating the weight of the various pertinent criticisms urged against the examining system and its administration. These criticisms may be divided into three classes.

1st. That patents are granted for old things, or for things previously patented to others, or for unpatentable things.

2d. That patents are refused for things which are patentable.

3d. That unnecessary expenses and delays are occasioned in the procuring of patents.

Without denying that there is truth in each and every one of these complaints, we propose to show that from the very nature of things the evils complained of have been greatly exaggerated; that so far as they have existed beyond that degree which it would perhaps be impossible to avoid, they are traceable to certain defects of organization which

may be cured; and that they have been altogether overbalanced by the good which the system, though imperfectly administered, has nevertheless worked.

Coming first to the charge that despite the examining system, patents are granted for old things, or things previously patented to others, or unpatentable.

In the first place it is well to remember, both in reference to this and to other grounds of complaint, that they originate in particular instances, and while such instances are much bruited, from the injury real or fancied to individuals, the evidences of efficiency in the administration of the examining system, rest in official records which meet the eyes of comparatively few.

The official figures which we have cited are really evidences of general efficiency of vastly more weight than any adverse evidence to be derived from the isolated experiences of individuals, yet the latter are more openly noised, and from this reason alone receive a degree of credit which a moment's consideration of the other side of the question I would serve to take from them.

Nor should it be forgotten how far charges of this nature may rest on mere opinion, and that, interested opinion. Take the case of a prior patentee and a present applicant for a patent, whose several inventions border very closely upon each other, all the probabilities are that if the opinions of the respective parties

were taken they would prove diametrically opposite; the patentee would insist on the identity or equivalency of the two devices, the applicant would see a clear difference between the two, and instance the refusal of a patent to him as a piece of rank injustice and stupidity on the part of the Office. Each party would see and argue in his own interest.

Nor is interest the only cause of error in this matter; it is by no means an uncommon incident for impartial men, equally expert, to differ in their views as to the substantial identity and equivalency of devices, or as to their patentability.

This shows that in considering this class of complaints, much allowance is to be made for difference of judgment, and with the caution that the most interested judgment is not the most likely to be correct.

Then again, it is a necessary feature of the patent law, not so generally understood as it should be, that changes or additions, be they ever so trifling apparently, in existing devices, whether patented or not, are entitled to letters-patent if they involve any degree of invention, to be determined mainly by the test of result.

Many a patentee discovering that some one has patented an improvement upon his invention, an improvement which no doubt to him seems more questionable or trifling than it may to others, is filled with resentment, first at the presumed

poacher upon his fancied domain, and next at the Patent Office for allowing and indorsing the imagined intrusion. This is all wrong, but is loudly insisted on, in proportion to its wrongfulness. It arises mainly from the one grand fallacy, that the patent laws are intended, not for the benefit of the public at large, but for that of inventors in particular. Nor does a patentee thus complaining usually stop to reflect, that, but for the examining system he so bitterly accuses, the subsequent patent, in which the fancied injury lies, might have embraced not only the improvement, but also his own invention, thus working a substantial mischief, to be abated perhaps only by litigation.

It is complained that many rejections are not for just and sufficient cause, and that inventors are often refused patents for that which is patentable. As to this particular complaint it is to be observed that failures to obtain a patent for that which is patentable, cannot be fairly charged as failure of justice until it be shown that every means which the examining system provides for obtaining his claim has been exhausted by the inventor in vain. This removes from the category of cases in point, those in which the inventor has not elected to exercise his right of appeal from a first or second adverse judgment. Thus the number of pertinent examples is very materially reduced.

It may be safely asserted that a

critical and impartial judgment would find those cases very few indeed in which a just claim of invention, properly presented and prosecuted as far as possible, has been refused.

But it is further complained that improper rejections by subordinate officers drive applicants to the expense and delay of appeals, or lead to the abandonment of applications, or where they do not have one of these effects, still cause unnecessary expenditure of time and trouble in obtaining patents. There is truth in this complaint, and we Ishall have occasion to discuss the causes of the evil. But our present purpose is to point out to those who would enter upon a consideration of the examining system and its administration impartially, certain facts and reasons tending greatly to diminish the real weight of these complaints.

It is first to be noted that appeals, whether justly or unjustly occasioned, are exceptional. It is a fact that the great majority of patents issued are allowed by the officers to whom the cases are first referred. In these instances, presuming the inventor to have performed his part of the duty by presenting his claim in proper and intelligible form, the process, expense, and time required are in general as simple, moderate, and brief as possible. It is a ques

tion which we shall have occasion to inquire into, whether the extreme simplicity and facility do not work