What Europe Can Teach Us About Patents (Aug, 1930)
What Europe Can Teach Us About Patents
Inventive genius takes big strides in Germany but delays in our patent office discourage American ingenuity. How British system of printing “abridgements” or condensed versions of patents that have been issued helps inventors.
By EDWARD THOMAS
THE United States has lost its world leadership in inventive progress.
This, at least, is the conclusion one is bound to reach through a study of United States Patent Office statistics and a comparison of these figures with those of foreign countries.
At the end of 1921, 41,182 applications for patents and amendments were awaiting action in the Patent Office. At the beginning of 1930, there were 118,730.
But there has been no corresponding increase in the annual number of applications filed. On the contrary, there has been a decided drop. In 1921, 93,328 applications were filed at the Patent Office. Last year, there were only 87,039. In other words, in 1929 there were 6,289 fewer inventors than nine years ago who went to Washington, D.C., in hopes of obtaining a patent. This decrease is due to the discouragement of American inventors, who refuse to wait many months, and sometimes years, to have their applications considered How does this situation compare with that in European countries? In Germany, there has been a material increase in patent applications. Last year, more than 70,000 applications were filed in the German Patent Office. According to the latest census figures, Germany has 62,-348,782 inhabitants. Thus, while an American city of 100,000 people, if typical of our whole population, would file about seventy patent applications a year, a German city of the same size would file about 112, or more than half again as many.
FEWER patents are granted in Germany than in this country, though last year, when more than 20,000 patents were issued there, the ratio to the population was about the same as here. But because many more applications are filed in proportion to the population, it follows that the applications are sifted more carefully. Hence a German patent is more likely to be stronger than one granted by the United States Patent Office.
The German patent office examiners seem to make more thorough searches than their American colleagues. Perhaps this is due to the different method of organization. A patent application in Germany first goes before an examiner, as it does in the United States. But his report, instead of being final, as it is here, is only a recommendation to his superiors. Thus Germany provides a check on the examiner.
THE patent system of Great Britain is too different from ours to be directly comparable in the same way, but the number of patents issued in England indicates that Great Britain is at least abreast of the United States in inventions protected by patents. It should be understood that, in speaking of patents, the term Great Britain is meant to include England, Scotland, Wales, and northern Ireland. The Irish Free State and the many colonies and dominions have their own separate patent offices.
Great Britain grants approximately 30,000 patents a year on about 36,000 or 37,000 applications. Thus about eighty percent of the British inventors who file applications at home get their patents! In the United States, the percentage is about fifty.
This avoidance of waste of time and money spent in useless applications probably is made possible by the excellent system of publishing all patents issued in condensed form, known as “abridgements.” Every patent is skillfully summarized when passed on by the examiners. These summaries or abridgements of issued patents are published every few months and later compiled in book form, arranged by classes of inventions.
An inventor can buy the published volumes or individual pages of abridgements of any class of invention in which he is interested, or consult them free of charge in the public libraries, and make searches himself without the trouble and expense of hiring a patent searcher or attorney. Moreover, he can search the abridgements to find solutions of minor problems that face him in the working out of his broad principle or invention.
The United States could make no greater contribution to the world’s inventive progress than to imitate and, if possible, improve upon the British system of publishing books of abridgements. The present Official Gazette of our Patent Office publishes only selected claims of the patents issued. And though they are supposed to be definitions of the patented inventions, they are inadequate and would be unsatisfactory even if the claims were grouped by classes of inventions, which they are not. The making of abridgements of all United States patents already issued might cost from $2,000,000 to $20,000,000, but would be worth hundreds of millions of dollars to the country.
The hopeless and progress-impeding delays that clog the machinery of the United States Patent Office are unknown in Great Britain. They are not possible there. The law forbids them. The British law requires that, in ordinary circumstances, every patent must be ready for issue within fifteen months after filing of application. Under special conditions, this period may be extended to eighteen months. But if not completed within that period, the application is legally dead.
THE British office has found it possible to live up to that law and yet turn out good patents. In the United States, there is no such limitation set by law. Legislation of that kind would go a long way toward clearing up our Patent Office muddle.
In fairness to the American system, however, it should be realized that the British examiner is required by law only to search inventions patented in Great Britain in the previous fifty years. In the United States, he is supposed to cover patents issued anywhere in the world since the beginning of time, besides such descriptions and drawings of similar devices and processes as he may be able to find in scientific and other magazines or in textbooks published anywhere at any time.
Theoretically, this is the only way to give the inventor a fair deal, but it has not been worked out adequately in practice in the United States Patent Office. In Germany, virtually the same rules apply, but the officials in that country have coped more successfully with the difficulties. There is no reason that I can see why the wealthiest country on earth should not be able to command a staff of examiners that would be at least the equal of the best experts on the German force.
Comparison with France, Belgium, and many other countries cannot be made because they have no system of searches by examiners. Holland now makes examination of patent applications. That country was the last civilized nation to establish a patent office. It was opened in 1910.
TO SEARCH the inventions of the entire world from the beginning of time through tons of literature may seem a formidable job, but knowledge nowadays is so well classified that, with adequate indexes, a well-trained and careful worker need not find it impossible or even difficult to find his way in it.
Let me give an illustration from my own experience. In my practice, I specialize in chemical patents. The other day, I was asked for advice by a hat manufacturer, who was threatened with suit for using a complex chemical with a name too long to print. I had to tell him that, if he could not prove the patent was worthless, he would be put out of business. He authorized me to investigate patents and any literature on the subject to see if this complex substance had ever been used before.
After just three days’ work I came back to him with sev- eral patents, any one of which anticipated the patent under which he was threatened. Unfortunately, however, the patents I brought him were anticipations of his own patent as well as of the threatening one. He then told me to try to find a patent of intermediate scope, meaning one which anticipated the threatening patent but not his own. This I did for him in three more days.
Note well that this entire job was done in six days and not six months or six years. If I can do this, there seems to be no good reason why a Patent Office examiner, who has become an expert in his field and who has nothing else to occupy his time, could not do as well or better.
Without rising from the swivel chair in my office, I can lay my hand on abstracts of about 40,000 magazine articles on chemistry and patents on chemical inventions published last year. By rising and taking a step or two, I am within reach of such abstracts for the last twenty years! They are well indexed and often I can tell an inventor all he wants to know about a chemical invention in five minutes.
THE United States Patent Office is the greatest publishing house in the world. There is no reason whatever why it should not provide indexes to literature published on machines and mechanical devices as complete and convenient as those on chemistry which I have in my office.
While I have been comparing United States Patent Office methods and personnel with those of Germany and England to the possible disadvantage of the United States, I must make it clear that a comparison of the patent laws tells an entirely different story.
The United States law gives the inventor two years to file his patent application after he has used his invention in public or published a description of it in a magazine such as Popular Science Monthly. Thus the American inventor can test out his device or process and hear it publicly criticized, and safely develop improvements as a result. This two-year delay allowed by the law, in effect, protects him.
The English or German inventor, on the other hand, must rush to the Patent Office as soon as he thinks he has made an invention, even if his ideas are only half-baked, and get his invention filed immediately, for his rights as an inventor date from the day he files his papers in the Patent Office. If he is a Swiss, his papers are even marked with the hour and minute he puts them into the hands of the officials, and his rights may turn on the difference of a single minute in getting them there. The Swiss government prints that hour and minute on the patent it gives the inventor.
THE two-year leeway is a distinct advantage to the American inventor. But it often compels the Patent Office to establish interference proceedings to determine priority of invention (P. S. M., July ’30, p. 44), and these have proved a curse to many an American inventor. Interference procedure should be improved, because now it often nullifies the advantages given the inventor by the two-year leeway. But bad as interferences are for some inventors, this two-year leeway should be preserved. More often than not, the time and money spent in an interference preserve rights which otherwise would never have existed, and which do not exist in England and Germany.
Because inventions in most foreign countries date from the day and hour the application is filed, the far-sighted American inventor files his foreign applications promptly. However, many countries have joined with the United States in a treaty or ” Convention” which provides that filing in any one of the so-called “convention countries” is as good as filing in any other. That is to say, if the inventor files copies of his application in any other of these countries within a calendar year of the day he files his original papers, the additional country accepts the filing date of his original papers as the date of his invention.
So, in the good old days, before delays were almost interminable in the United States Patent Office, an inventor always received an early report on the novelty of his invention, and then decided, on the basis of that report, whether to file or not to file patent applications in one or more of the 130 countries and colonies which maintain separate patent systems. He had ample time to get the examiner’s report, study it, and make up his mind whether filing foreign patent applications was a good risk.
Many American inventors patent their inventions in several foreign countries. Nearly 8,000 inventors from the United States, for example, each year take out Canadian patents to protect their inventions in the Canadian market. A considerable number also take out corresponding patents in other countries, especially Germany, England, and France.
IN FOREIGN countries the laws covering patents and infringements vary. They are stringent in Mexico, where infringement is a criminal offence, punished by imprisonment. In England, the loser in an infringement suit, just as in any other British lawsuit, pays the entire litigation expenses for both sides. In the United States, the loser only forfeits what he has spent himself, except that an infringer here, of course, has to pay damages, as in all countries. It is possible in England for an infringer to pay only a few cents damages and thousands of dollars for the opponent’s expenses in fighting him.
Several million dollars a year are spent by American inventors who file patent applications in foreign countries to protect their inventions. Much of this American money is wasted in attempting to protect inventions which already have been patented by others. If it were not for the delays in the United States Patent Office in passing on patent applications, a considerable proportion of this wasted money could be saved.
The oldest foreign patent of which there is a complete record is that for a pump granted to Galileo, the great Italian scientist and philosopher, while he was a professor of mathematics at the University of Padua. He applied for this patent in December, 1593. On December 28, the application reached the examiner, then called the “Purveyor of the Commune.” The examiner approved the application on February 18, 1594, and Galileo received his patent on September 15 of that year, nine months after he had filed his papers.
THAT was 337 years ago. It is true that the Republic of Venice, whose doge or chief magistrate granted Galileo his patent, did not have to pass on some 1,600 patent applications a week, as has the United States Patent Office these days. The phenomenal growth of scientific knowledge in the past 300 years has been responsible for the flood of inventions now overwhelming the Patent Office. But that same knowledge can and should be used to create the machinery with which to solve the problem. Only in that way can the United States regain its lost leadership in the world of invention.
Until the much-needed reforms in the U. S. Patent Office have been effected, inventors must cope with existing conditions. In a helpful article next month, Mr. Thomas will show the best way of obtaining a patent and tell inventors what pitfalls to avoid.