Page:The Green Bag (1889–1914), Volume 20.pdf/657

 506

THE GREEN BAG

In my judgment, they should hold their positions during good behavior and a retir ing age should be fixed under arrangements similar to those now provided for in the federal judiciary. They should have plen ary jurisdiction to look up questions of novelty and investigate public use in con tested cases. This appellate tribunal should have final jurisdiction in the Patent Office, allowing, however, the equitable relief provided for by the Revised Statutes, Section 4915. Among the reasons for such suggested change are: First. Lightening the work of the Com missioner and allowing him to give his entire time to management of office and deter mining questions of practice in the office. Second. Reducing expense of securing final adjudication on the part of the pa tentee. Third. Divorcing the executive from the judicial department of the office. Fourth. Quick determination of inventorship by a tribunal in the Patent Office qualified to determine invention in the pa tentee which should establish a prima facie right on the part of a patentee to protect himself immediately against infringers. When the inventor has appealed from the Primary Examiner to this tribunal of Patent Office appeals, and his claims have been ruled favorably upon, the question of prima facie validity should be definitely settled in such a manner as to enable the Circuit Court to feel warranted in granting a temporary injunction based on this patent, provided infringement be clear, and unless positive proof is furnished by the alleged infringer that the patent was invalid, because of prior uses or references which had not been considered by the Patent Office, thus shifting the burden from the patentee, where it now is in such cases, to the alleged infringer, where it properly belongs, provided due care is taken in issuing the patent. It might be advisable, and I throw it out merely as a suggestion, to have the claims

of the patent published for a period of from thirty to sixty days prior to its issuance, in the Patent Office Gazette, and thus en able any parties who might think them selves injured by the issuance of the patent to file opposition to the grant by a procedure somewhat similar to the opposition now in vogue in regard to the registering of trade marks. The British system now in vogue might advantageously be considered in connection with this suggested change of publishing the patent prior to its issuance in the Patent Office Gazette. This additional precaution in issuing a patent would, in my judgment, curtail the grant of a large number of patents which form the basis of prolonged litigation, which in a large percentage of the cases tried results in the destruction of the patent and destroys confidence in the Patent Office, in the courts and in our patent system generally, and would secure to the real inventor compensa tion for his endeavors. Such procedure as I have outlined should curtail the practice in vogue in patent litiga tion of filing demurrers directed to the patentability of the invention, and should obviate illegitimate advertising, based upon patents without merit, detrimentally affect ing legitimate manufacturing industries and enterprises. I feel that such of the decisions as have sustained demurrers directed to the patent ability of inventions have been largely brought about by the great percentage of patents held void for want of patentable invention upon final hearing, upon pleadings and proofs, due to the practice of granting minor patents of questionable utility and novelty upon slight and extremely ques tionable improvements over the art disclosed by the Patent Office at the time of consider ing the application for the patent. Judge Townsend has said: "Such patents instead of promoting the progress of ths useful arts, seriously retard their develop ment, and the resulting injury far exceeds