5i8 
Product  Patents. 
Am.  Jour.  Pharm. 
July,  1 918. 
old  thing.  As  a  matter  of  common  sense,  if  the  new  thing  cannot 
be  differentiated  from  the  old  thing  then  there  is  no  difference.  And 
it  cannot  be  made  different  by  talking  about  its  past  history ;  by 
reciting  differences  in  the  process  by  which  it  is  made.  That  par- 
ticular experiment  in  patent  law  was  made  by  the  Badische  at  the 
time  of  the  alizarine  synthesis  when  it  claimed  "  artificial "  alizarine 
as  a  new  composition.  The  Supreme  Court  remarked,  in  effect 
(Cochrane  vs.  Badische,  11 1  U.  S.  293),  that  if  the  new  artificial 
alizarine  was  exactly  the  same  thing  as  the  old  natural  alizarine  then 
it  was  exactly  the  same  thing  and  calling  it  "  artificial "  did  not  make 
it  different.  Of  course,  sometimes  we  have  to  characterize  sub- 
stances by  adjectives  which  look  a  little  process-y  because  they 
happen  also  to  be  past  preterits  of  verbs,  as  in  talking  of  a  boiled 
ham  or  a  fried  egg  or  wrought  iron,  but  this  does  not  militate 
against  the  general  proposition  that  a  thing  to  be  patentable  must  be 
differentiated  from  old  things  by  stating  its  properties  or  its  charac- 
teristics ;  and  that  it  must  be  new  in  itself  and  not  new  because  of 
the  process  by  which  it  was  made,  i.  e.,  it  is  not  made  novel  by  being 
a  "  product." 
I  regret  to  say  that  the  nebulous-minded  gentlemen  with  their 
misconception  of  "  product  patents,"  instead  of  merely  infesting  my 
office,  are  getting  into  print  and  into  Congress.  And  in  this  there 
is  a  certain  danger.  Mrs.  Malaprop  was  a  very  pleasant  lady ;  but 
it  was  not  safe  to  entrust  any  business  to  her.  In  the  present  mood 
of  Congress  and  the  people,  a  proposition  to  revise  the  multiplica- 
tion table,  if  backed  by  a  good  patriotic  showing,  might  slip  through. 
And  these  gentry  wish  to  abolish  "product  patents,"  feeling  in 
some  vague  way  that  this  will  hurt  Germany  and  help  us.  I  do  not 
see  how  it  will  do  either;  but  I  am  somewhat  hampered  by  my  in- 
ability to  grasp  exactly  what  they  mean  by  a  "  product  patent "  any- 
way. If  they  mean  "product "  in  its  legitimate  ordinary  sense,  then 
the  proposition  is  an  absurdity  because  it  is  to  abolish  all  patents 
save  patents  on  processes.  For  everything  that  man  can  make  is  a 
product,  and  it  is  a  product  of  a  process  of  making:  perhaps  a  pat- 
entable process  and  perhaps  an  unpatentable  one,  but  still  a  process. 
However,  being  something  of  a  mind-reader,  albeit  my  education 
in  this  line  was  somewhat  neglected,  I  surmise  that  what  is  actually 
meant  is  the  abolition  of  patents  on  the  products  of  really-and-truly 
chemical  processes.  If  this  be  so,  it  leaves  intact  two  more  of  our 
statutory  classes  since  a  machine  and  a  manufacture  are  commonly 
