April 1, 1913.] 



THE INDIA RUBBER WORLD 



361 



Protection of Intellectual Property in Relation to Chemical 



Industry. 



I EXCERPTS FROM A PAPER READ BEFORE THE AMERICAN 

 MICETINC. DECEMUER 4, 1912, BY 



THE mass of unthinking people, as well as those whose views 

 are predominantly guided by precedent, have little or no 

 conception of the natural rights of intellectual property. 

 It is difficult to teach such people that adequate protection of in- 

 tellectual property is abundantly more benelicial to the com- 

 munity at large than to the temporary individual possessors of 

 these rights. 



Vet these same people consider as sacred and inviolable, any 

 other property rights as soon as the latter relate to chattels or 

 real estate, whether such rights were obtained by purchase, by 

 inheritance, by gift, by privilege, by labor, or by any other way. 



When, however, it comes to recognize the claims of owner- 

 ship to intellectual property, the result of the truly creative ef- 

 fort of the citizen, we butt right away against some stubborn 

 conceptions, which have petrified into the code of our long es- 

 tablished laws. 



If Tom steals Dick's two-dollar scarf pin, Dick will have little 

 trouble in putting Tom in jail, even if Dick himself has obtained 

 his pin by questionable methods. But when it comes to pro- 

 tect even for the short period of 17 years, the most logical, the 

 most legitimate personal property, intellectual property, as em- 

 bodied in patent rights, with all that it involves, with enterprise 

 depending thereon, based often on the work of a life-time, then 

 our law courts are woefully deficient, on account of uncertain- 

 ties, delays and enormous expenses connected with the adjudica- 

 tion of patent rights. All this works overwhelmingly in favor of 

 the litigant with the well-filled purse, the large corporation. 



Yet, no country in the world has e-xpressed in a fairer and 

 broader spirit, the rights of intellectual property, than the 

 United States, in Article 1, Section 8, of the Constitution: "Con- 

 gress shall have power to promote the progress of science and 

 the useful arts by securing for hmited times to authors and 

 inventors, the exclusive right to tlieir respective writings and 

 discoveries." 



This proclamation lifted the right of a patentee at once, far 

 beyond the mere privilege conferred by most countries, which 

 grant patents not only to the real inventor or originator, but 

 also to those who are first to introduce unpublished inventions 

 into their respective countries. With some legitimate pride, we 

 can- say that in this respect, at least, .American patent law 

 stands head and shoulders above the law's of Germany, France 

 and England. 



The wisdom of these provisions has been abundantly proved 

 by subsequent events. Only a man stubbornly blind to evident 

 facts, will deny that just those countries which have the most 

 liberal laws for patent protection are also those which have 

 taken the lead in the industrial and scientific development of 

 the world. 



Up to about thirty years ago. our patent system covered tol- 

 erably well the purpose for which it was intended. It stimulated 

 individual inventions and promoted numerous private enter- 

 prises. Since then, with the extraordinary growth of our na- 

 tion, with the tremendous increase of agglomerations of capital 

 for industrial enterprises, and more especially with the aston- 

 ishing increase in the ramifications of applied science, our patent 

 system has become totally inadequate to the needs of the coun- 

 try; it suits our new conditions in about the same way as ba'oy 

 clothes fit an overgrown boy. 



Our patent system, although based on an excellent fundamental 

 law. has now degenerated in a set of exceedingly complicated 

 technicalities of law practice, a system of legal acroliatics, 

 whereby any contestation before the courts can be turned into 

 "perpetual motion" to the advantage of wealthy litigants, and 



I.NSTirUTE OF CHEMICAL ENGINEERS, AT THE DETROIT 

 DR. L. H. BAEKELAND, PRESIDENT.] 



whereby the individual patentees of slender means and the small 

 industrial concerns lind themselves under smothering disad- 

 vantages when opposing rich antagonists. In this way our patent 

 system, instead of accomplishing its intended purposes of stimu- 

 lating individuality, simply reinforces the rich and big indus- 

 trial enterprises, and discourages the individual inventor unpro- 

 vided with a liberal bank account. 



It is true that on November 4, 1912, the Supreme Court of 

 the United States, has promulgated revised Rules of Practice for 

 the Courts of Equity, which intend to simplify our methods of 

 litigation. Unfortunately, this is only a half-way measure, leav- 

 ing still abundant opportunity for the tactics of delay, chicane, 

 and expense which have too much disgraced .\merican patent 

 litigation. 



These new rules might gain in efficiency, if they were supple- 

 mented by the creation of a final court of patent appeals. They 

 might be made incomparably more efficient, if they could be 

 strengthened by a system whereby the adjudication of the 

 validity of patents does no longer devolve upon judges who do 

 not possess the technical or scientific preparation, required nowa- 

 days for discerning the merits of complicated patent questions. 

 Some of the far-reaching details of scientific technology abso- 

 lutely baffle the comprehension of those who have no prelimin- 

 ary technical or scientific training. Certain problems of chem- 

 istry and physics involved in many patent suits can no longer 

 be understood by an intelligent judge, if he has not had long 

 and systematic preliminary training in that branch of knowledge. 

 1 do not deny that an intelligent judge can be coached and in- 

 structed by long, tedious, time-robbing methods, even in intricate 

 scientific problems ; but his education has to be made over again 

 for each special case. After you have made a chemist of him for 

 one case, the next adjudication will require the knowledge of a 

 physicist, an electrician, an engineer, and so forth. 



Even under the new rules, it will not be difficult to drag on a 

 case by presenting an unrestricted amount of testimony taken 

 before an incompetent examiner, and by calculating every step 

 so as to tire out your opponent, and so as to lead the judge into 

 doubt and error, by swamping him with endless contradictory 

 expert testimony calculated to befog the issue instead of making 

 it clear. Such tactics are relatively easy for the litigant, who, 

 for that purpose, can afford to pay accommodating experts and 

 skilful lawyers. Even if at the end, the judge, after laborious 

 and conscientious efforts, masters the technicalities of the case 

 and reaches a good decision, much needless time has been 

 wasted. All this might easily be avoided, and judges might be 

 saved the trouble and responsibility of going in every single case 

 through a different scientific or technical training, if their in- 

 tervention could be limited to what they are more competent 

 for, namely, to determine what claims have been infringed and 

 in how far this infringement entitles the patentee to damages. 



That such a method of settling patent suits is quite practical, 

 is shown by the example of (Germany. In that country, patents 

 are allowed after preliminary examination, just like here ; but, 

 after the patent is granted it can be attacked for annulment or 

 revocation before a competent court in the Patent Office. So 

 that any party who is sued for infringement of a patent which 

 he thinks is invalid can avoid temporarily the adjudication of 

 the infringement issue by starting an annulment or revocation 

 suit. In the meantime, the courts in which infringement cases 

 are examined have to take the patent as it stands, and it is only 

 left to them to interpret the scope of the claims, and to what 

 extent these claims have been infringed. 



This relieves the equity court of all the complicated questions 



