362 



THE INDIA RUBBER WORLD 



[April 1, 1913. 



of validity or non-validity of a patent, and puts this whole mat- 

 ter in the hands of a properly constituted court of experts, who 

 can handle this subject with incomparably less hesitation, or de- 

 lay. Besides this, the whole system of practice in the German 

 Patent Office tends towards systematic elimination of invalid 

 patents. After an examiner has decided upon preliminary al- 

 lowance of a patent, the claims and specifications are open for 

 public inspection, and for a period of two months, anybody 

 whomsoever can file arguments against the final grant of the 

 patent. In this way, the nation does not too lightly confer 

 patent privileges and has furthermore, the benefit of the free 

 advice of any experts in the art, who may advance good reasons 

 for non-allowance of the claims, of which the examiner was not 

 aw'are, when he rendered his first decision. These opposition 

 proceedings give added thoroughness to the work of the exam- 

 iners. They are relatively inexpensive and do not necessitate the 

 intervention of law counsel. Sometimes they delay the issue of 

 a patent, if there is any good reason for doing so. On the other 

 hand, a patent that has successfully withstood vigorous oppo- 

 sition proceedings is very much strengthened thereby; this, in 

 itself, is a very valuable compensation for any delays to which 

 the patentee may have been subjected. In other words, by that 

 system, a good patent becomes stronger, while a defective patent 

 application is easily weeded out. A similar system of public op- 

 position exists here in the United States in relation to the grant- 

 ing of trade-mark rights, and seems practical enough that it 

 could be extended to our methods of allowing patents. 



All officers of our patent office, high or low, should be made 

 independent of any political favoritism ; they should be better 

 paid, with more opportunity for promotion, according to merit; 

 their work should be made simpler by an improved office equip- 

 ment and increased facilities for a thorough search ; further- 

 more, our unnecessarily complicated and expensive methods of 

 interference proceedings should be simplified. 



With these reforms, there is no doubt that we can organize 

 right in the patent office, a competent court, supplemented by 

 the Court of Appeals of the District of Columbia, for deciding, in . 

 a very expedient way, all questions of validity of patents. 



This Court of Appeals, because it is situated right in Wash- 

 ington, would have easy and immediate access to all the records 

 of the Patent Office; by this fact alone, it would have superior 

 opportunities for prompt and efficient work. 



At least some of these facts seem to have been very well 

 recognized in the masterly report of Hon. William A. Oldfield, 

 chairman of the House Committee on Patents. (See report No. 

 1161, on II. R. 23417, August 8, 1912.) 



Unfortunately, his proposed Oldfield Bill (H. R. No. 23417), 

 with a regrettable lack of consistency, neglects utterly the para- 

 mount issues, and busies itself with secondary regulations which, 

 if carried out, will practically put a penalty on patented articles. 



The new provisions of the Oldfield Bill aim at curtailing the 

 power of patents in the hands of trusts or large corporations ; 

 but, in doing so, new provisions are introduced which will create 

 endless new opportunities for protracted litigation. 



The Oldfield Bill overlooks the axiom that whatever increases 

 the expense or delays of litigation, is a very potent weapon in the 

 hands of large corporations, which they can hurl against the 

 poor litigant who stands in their way. 



The saddest thing of all is that the new Oldfield Bill tries to 

 abrogate the hitherto accepted principle established by our Con- 

 stitution, that a patentee has the right to license or sell his patent 

 on whatever terms he pleases. It has been feared that this 

 principle, if carried too far, might become a dodge for avoiding 

 the .\nti-trust Laws. Since the decision of the famous, but 

 harmless Dick case, the most hysterical exaggerations have been 

 published on this subject. Fortunately, since then, the recent 

 and unanimous decision of the United States Supreme Court 

 in the "bath-tub trust" case, November 18, 1912, does away with 

 all these redundant arguments and settles, beyond doubt, the 



principle that, patent or no patent, unlawful combinations in 

 restraint of trade can be stopped by the Sherman Law. 



The Oldfield Bill, in its eagerness to avoid any hesitation on 

 the subject, goes one step further, and unfortunately, one step 

 too far. It puts so many restrictions on the sale of a patent 

 article, or on a patent license, that it may become a positive dis- 

 advantage to transact business by means of patents. 



Examined in the last analysis, it threatens a business based on 

 patented processes or patented articles, with penalties which un- 

 patented articles thus far are not subjected to. It takes the pro- 

 posed patent law as a pretext for saddling a patented article 

 with restrictions which have not heretofore been formulated for 

 non-patented goods. 



This unexpected paradox, promoted by the Oldfield Bill, is 

 distinctly in opposition to the rights of intellectual property con- 

 veyed by the words and the spirit of the Constitution, and if 

 the Oldfield Bill becomes an effective law, it will be the saddest 

 blow ever given to our patent system. It will do comparatively 

 little harm to large business interests, because for them, there 

 are many ways of circumventing its provisions ; on the other 

 hand, it will cause great discouragement to smaller enterprises 

 which, until now, have held the hope of matching inventive genius 

 and initiative against the money power of big organizations. 



Another unfortunate miscarriage of purpose in the Oldfield 

 Bill is its provision against so-called wilful "supression" or "non- 

 use" of patents. It does not take into consideration that in 

 numerous instances, a patentee or an assignee possesses a series 

 of so-called alternative patents, which can be used to bring 

 about identical or similar technical results by modified means. 

 Among such alternative patents, the best or the most suitable are 

 used, absolutely irrespective of any other reason or intention to 

 suppress their use. Yet without the exclusive possession of 

 every one of these patents, the invention would not sufficiently 

 protect against competitors, and the field would be so much 

 reduced as not to make it worth while to put one's best energies 

 to the development of the invention. In most cases, it would be- 

 come a material impossibility for a small concern to maintain the 

 exclusive ownership of its patents, if it had to go to the enor- 

 mous expense of working simultaneously all its "alternate" pat- 

 ents ; by omitting this expensive technicality, it would be exposed 

 to the risk of being compelled by its competitors to grant a com- 

 pulsory license ; this would practically annihilate the advantage 

 of exclusive ownership as expressed by the constitution. There 

 again large concerns would be at an overwhelming advantage, 

 because they can at an expense relatively small for them, equip 

 the necessary appliances for remaining within the technical pro- 

 visions of the law. In the meantime, thej' could easily harass 

 their financially weaker competitors in exacting from them 

 compulsory licenses which would break up the only prospects of 

 successful competition which the smaller concern might have 

 possessed, until then, in its patents. 



I have no doubt that this bill has been framed with the best 

 intentions for the interests of the country. Unfortunately, the 

 framers of this bill do not foresee the far-reaching and danger- 

 ous effects of its provisions. 



ENGLISHMEN WAUT AMERICAN SOLID TIKES. 



The representative of an English firm of motor truck manu- 

 facturers opening up a sales business in Canada informs an 

 .American consul that he would like to receive catalogs and price 

 lists from American manufacturers of detachable solid rubber 

 tires suitable for motor trucks carrying a load of one to four tons. 

 The number of the consular report is 10S46. 



THEY WANT AMERICAN RITBBEE SHEETING. 

 An American consul in a European country states (Report 

 No. 10,395) that a local firm desires to be placed in communica- 

 tion with American manufacturers of rubber sheeting for hos- 

 pital use, with a view to making direct purchases or of represent- 

 ing such firms on the local market. 



