Page:The Green Bag (1889–1914), Volume 20.pdf/656

 DILATORY PATENT PROCEDURE that no new substantial defense is found by alleged infringers. It seems to me absolutely imperative that we should have some foundation, some prefatory step taken at the Patent office, by which the inventor can secure an immediate right of relief against the users of his patented thing. I advocate strongly an amendment to. the patent laws simplifying the interference procedure, as well as the procuring of a patent, by eliminating and abolishing some of the appeals now permitted. If the Examiners in chief are properly selected, this body of men, who under the Revised Stat utes, Section 482, are required to be "per sons of competent legal knowledge and scientific ability " and "a permanent board," might as well be made a final tribunal, so far as procedure at the Patent Office is concerned, to determine the rights of an inventor to a patent, and as to the rights between parties to an interference proceeding in determining questions of priority. If the salaries were made suffi ciently large to warrant men of broad experi ence and of exceptional ability filling the position of Examiner in chief (with perhaps a different title), there could be no doubt but that as fair and just a decision could be reached by these men as by having it passed on to the Commissioner of Patents (a politi cal appointee, not required to be of legal knowledge or scientific ability), and from him to the Court of Appeals of the District of Columbia, not necessarily qualified for this work. The system which I have here outlined was contemplated in the Patent Act of 1836. At that time the Commissioner of Patents was acting very much as the present Exami ners are; that is, the Commissioner with a few assistants passed in the first instance on whether or not an applicant was entitled to his patent. This act provided for a direct appeal to a board of three examiners appointed by the Secretary of State, "one of whom at least was to be selected, if

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practical and convenient, for his knowledge . and skill in the particular art, manufacture, or branch of science to which the alleged invention appertains." From this original statute relative to appeals, and owing to the large growth of the Patent Office, the present appellate procedure has slowly emanated into a very expensive and cumbersome one, which should be materially cut down by limiting the applicant to one appeal within the Patent Office. If this were done and the present equitable action allowed, permitting equity rights being raised in the United States courts, which are without the jurisdiction of the Patent Office, more satisfactory, direct, and quicker results would be had in the securing of a patent (and determining the rights of the alleged inven tor to his patent whether contested or noncontested. I strongly urge abolishing entirely the appeals from the Examiners in chief to the Commissioner of Patents, and from the Commissioner to the Court of Appeals for the District of Columbia, and leaving in force, in duly modified form, the present statutes which provide for the equitable relief through the United States courts in the event of a seemingly unjust decision by the Examiners in chief. This would leave the Commissioner of Patents free to attend to the executive duties incident to the running of the Patent Office, sufficient for any commissioner to attend to, without the burden of passing upon the question of invention and priority of rights in a given inventor. Incidentally, I think the Commissioner's salary should be increased. I would suggest that the salaries of the Examiners in chief, under this arrangement, be increased from the present salary of three thousand dollars to that of the Circuit judges, and have them appointed by the President of the United States and con firmed by the Senate in the same manner as federal judges are appointed.