HOW CONGRESS PROPOSES TO ROB INVENTORS AND PATENTEES.
Much anxiety is felt by inventors and owners of patents concerning what is believed to be a settled determination on the part of a considerable number of members of the present Congress to enact laws that will virtually destroy the value of property in patents by taking away from them the legal protection they now have, and actually encouraging infringement and open robbery. The excuse offered for the proposed action is the admitted desirability of instituting such reform as will put a stop to vexatious and almost blackmailing suits brought against innocent purchasers of infringements upon patented articles, the protection of which by patent has not been matter of public knowledge until the infringements have had time to pass into common use. Under the guise of protecting such innocent purchasers two bills have already passed the House (Nos. 3925 and 3934), which, if they become laws, will have the effect of making legal prosecution of infringements so costly, vexatious and ineffective that owners of patents will be almost helpless. Even worse bills are, however, those now pending in the Senate. A gentleman largely interested in patent righ s, speaking as a representative of the feeling of many thousands of inventors, patentees and licensed users of patent inventions, said yesterday, in explanation of the bills pending :
“The provisions of the House bills arc such that a patentee must give bonds to pay all costs of an infringement suit before beginning it, and must pay them, although he gains the suit, if he is awarded less than $20 damages. He must also pay, in addition to the costs, a fee of $50 to the defendant’s attorney in case the defendant by any means gains the suit. The user of an infringement is held not to be liable to prosecution, but simply the manufacturer or vender. Even if the patentee wins his suit against the user of an infringement made by himself or his employee for his own benefit, and not to use in manufacture of articles for sale, the measure of recovery must be simply a license fee, to be fixed by the jury, and not by the patentee, whose property is thus valued for him and disposed of without his consent.
“ It is readily apparent that such restrictions would leave the patentee without remedy at law. Think of the bonds he would have to give to fight infringers all over the Union ! Remember, too, that suits against users—‘innocent purchasers in good faith’—are, as a rule, merely to fix the legal right to a patent, and if possible through them to get at the manufacturers and venders of the infringements. The damages from them ate always petty, hardly ever anything approximating to $20 in any of the class of patents that this law would throw open to everybody; so the patentee would always have to pay his own costs. If the infringer shows that he is simply an ‘ innocent purchaser,’ and not a manufacturer, or at least chooses to swear that he is, he even has his own lawyer paid for him. If these bills pass the Senate and become laws, patents on small articles of easy manufacture and wide utility will be valueless. Stoves, lamps, agricultural implements, tools, trimmings, toys and a thousand other things will be made and sold by irresponsible infringers everywhere, and the owners of patents upon them can hope for no redress.
There is a bill before the Senate, however, introduced by Senator Voorhees, by the side of which those proposed enactments are almost white. It provides that :
” It shall be a valid defense to any action for an infringement of any patent or any suit or proceeding to enjoin any person from the use of a patented article, that the defendant therein or his assignor purchased the patented article for use or consumption and not for sale or exchange, in good faith and in the usual course of trade, without notice that the same was covered by a patent, or without notice that the seller had no right to sell such an article ; and in all such cases notice received after such purchase shall not have the effect to impair in any way the right of such purchaser as absolute owner.
“ In other words, the pateentee must prove the defendant’s knowledge of a fact—rather a hard thing to do—or that the seller of the infringing thing, when selling it, warned the purchaser that it was an infringement— which he would hardly be likely to do—and, after all, the only satisfaction the plaintiff gets when he has proven both facts, if you please, is that the defendant can go right along enjoying the use of the thing he has no moral or legal right to, any more than he would have to a stolen watch or overcoat. It is an old saying that ‘ possession is nine points of the law,’ but here, in the law according to Voorhees, possession is the whole ten points.
“ There is still another bill that should not be overlooked (H. 3617), which proposes to reduce the life of a patent from seventeen years to five; but that would be too unutterably foolish, unjust and injurious to the country to stand much show for passing. It is a rare thing that any money is made on a patent in the first five years, and certainly it would be much rarer If those other House bills should become laws. The effect of such a reduction would be to put a stop to patenting, and inventors, instead of helping, as they do so enormously, to build up the wealth of our country and keep our progress ahead of the world in the useful arts and sciences, would flee to other lands where they would receive better recognition and reward for their genius and labors. It will indeed be the effect of those other bills, each and all of them, to compel inventors to leave this country to seek patents abroad if they become laws. And if that time ever Comes it will be a sad day for the United States. And that day will be a peculiarly sad one for the demagogues who have brought such ruin upon the country when the people see the effect of their work. Our factories in 1880 turned out 93,369,000,000 worth of products, the greater part involving the use of patent rights and dependent on them for the production. What will be the effect when the capital invested in them is imperiled by such legislation as this ? Our production, agriculturally, that year was $2,200,000,000. in which inventions were a prominent factor in cheapening and increasing the amount. We can only prosper by encouraging our inventors, not by slaughtering them.
“ These laws will benefit not the poor, but rich corporations that, especially by Voorhees’ bill, were it a law, could unrestrainedly grasp any patent they please.”
HAVE INVENTORS ANY RIGHTS?
The Manufacturers’ Gazette, referring to recent bills passed by the House nullifying the rightsof patentees, and other hostile legislation now before both branches of the national legislature, says :
“The moment any such legislation as this takes effect, our mechanical progress will be in its decadence. Why not pass one more law, that hereafter no patents shall be allowed to anybody for any length of time, and thus stop the outlay for the patent office, patent lawyers, etc., and that no future litigation shall be had as to rights vested in patents ? Thus cutting the whole thing down and wiping out at one fell stroke millions of dollars of property, or what has been supposed to be property, and also wiping out totally one of the strongest branches of American industry, the inventors and perfecting mechanics. We might as well do the thing right while we are are about it ; wipe out everything that refers to it ; let them start again, but make the thing sure that no man has rights that another one is bound to respect.”
The St. Louis Miller, speaking of the bill of Mr. Ray (H. R. 1081) of New York, before the House, says :
“ There is a vast deal of twaddle in many of the arguments of those who try to break down Government grants of rights and franchises on the ground that monopoly should be discouraged. The people at large are quite indifferent as to the cost of a public benefit, until after it is secured. Then they too often seek to prevent the originators of the benefits from reaping any permanent or extended profits therefrom. The public is totally conscienceless on this point, and is ready to evade the terms of a distinct contract whenever it can be done in a slightly roundabout _____aiy. The repeated and continuous attacks upon the effectiveness of our patent law which has been made in Congress after Congress are abundantly illustrative of the spirit to which we allude. * * * Under this proposed law some piratical adventurers with a little money could readily inform themselves regarding a few meritorious articles just patented by poor and obscure inventors, could quickly manufacture immense stocks of the goods, and could then throw them on the market so suddenly and extensively that stopping the traffic by the service of notice would be simply impossible. Moreover, honorable manufacturers who might be willing to allow inventors a reasonable royalty would be afraid to make a bargain for the legitimate production of the patented novelties. They would fear to do so lest others less honorable might be even then secretly making the same goods, and might soon flood the country with them. The New Yorker’s bill is an unjust one, and should be forever tabled.”