Patents and the General Welfare
THE RIGHT OF AN INVENTOR TO HIS INVENTION
By GEORGE I. HAIGHT, President, Wisconsin Alumni Research Foundation
Delivered before the War and Reconversion Congress of American Industry, 49th Annual Meeting of the National Association of Manufacturers, New York, December 8, 1944
Vital Speeches of the Day, Vol. XI, pp. 317-320.
WE hold these truths to be self evident: That all men are created equal; that they are endowed by their creator with certain inalienable rights; thatamong these are life, liberty and the pursuit of happiness;that, to secure these rights, governments are instituted among men deriving their just powers from the consent of thegoverned."
This great sentence appears in our Declaration of Independence—It presents fundamental principles. It recognizes that we are endowed with rights. It declares government to be
an instrument of service. When our government was formed these were embodied in our Constitution. For those principles our ancestors have fought again and again. For them we are fighting now.
The pursuit of happiness has been consistently declared by our courts and our citizens to include the right to own property. Indeed that right had been observed through time immemorial—even among savages. The American Indians, men of the stone age, recognized private property in weapons and other simple things.
Our Constitutional forefathers were familiar with patents for inventions. These were known under the laws of England. One may read of them in Blackstone. They were known in our Colonial times. The first American patent was granted in the colony of Massachusetts in 1641. It was upon a method of making salt. The next was issued in Massachusetts in 1646. It was upon a scythe.
In wisdom and with both insight and foresight, our Constitutional forefathers, a group of practical men with sound ideals, recognized the importance to progress of patents upon inventions and of copyrights. In the powers given Congress by Section 8, Article I of the Constitution appears this commitment: "To promote the Progress of Science and useful Arts by Securing for limited times to Authors and Inventors the right to their respective writings and discoveries."
Property in writings and discoveries are the only proper-tics specifically mentioned in the Constitution and directly committed to our government for security.
When the first Congress met one of its early Actions was to pass a Patent Law. With changes made from time to time it still endures.
Our Patent system has worked well. It has been of vast benefit. No one can deny that discoveries and inventions in the patentable field have contributed much to mankind. This being true it must follow that means which encourage invention, should be preserved, guarded and used. Incentives should be maintained and not destroyed.
Thoughtful, observant men among our scientists, our judges, our businessmen and others, have for many years agreed that the countries which have been making the greatest advances in science, in the industrial arts and in commerce are the United States, Great Britain and Germany. These men have also observed that these are the three countries of the world that have established thoroughly developed patent systems.
Have patent systems to do with progress? The answer must be an overwhelming affirmative. Of course a good patent system is not the only requisite for progress in the post war world. There are other essentials. Even the best patent system cannot function if our citizens try to dwell in lazy ease in bread-fruit groves.
All American School boys learn something of the dramatic contribution of American inventors in stories as thrilling as those of frontiers where dangers lurked. Of course once in a while we find a school boy who in maturer years becomes unfledged in this early understanding.
The inventor creates, he gives. In the main the adverse critics of our patent system, and there are some, see only what the successful inventor gets and overlook his contributions. Some of these critics are the type of men whose enjoyment of a church service is hurt a little when the collection plate is passed. They appropriate free passes both now and for the future. However, the old law of compensations is always at work. It is hard to get men to sacrifice save for a cause. In some form—humans expect rewards. In some form honest men are anxious that commensurate rewards be given to the deserving.
What is this patent right? In the last court case in which Daniel Webster appeared, he argued for the validity of the patent upon the invention relating to the vulcanization of rubber—an invention that in his dire poverty and in hopeof reward—Goodyear completed in a Boston jail. In his argument Webster said:
"The law acknowledges the existence of the right of an inventor to his invention as property, and the Constitution is remarkably exact in the language in which it speaks of this important subject. The Constitution does not attempt to give an inventor a right to his invention, or to an author a right to his literary productions. No such thing. But the Constitution recognizes an original, pre-existing, inherent right of property in the invention, and authorizes Congress to secure to inventors the enjoyment of that right. But the right existed before the Constitution and above the Constitution, and is, as a natural right, more clear than that which a man can assert in almost any other kind of property. What a man earns by thought, study and care, is as much his own, as what he obtains by his hands. It is said that, by the natural law, the son has no right to inherit the estate of his father—or to take it by devise. But the natural law gives a man a right to his own acquisitions, as in the case of securing a quadruped, a bird, or a fish by his skill, industry, or perseverance. Invention, as a right of property, stands higher than inheritance or devise, because it is personal earning. It is more like acquisitions by the original right of nature."
And he said:
"The right of an inventor to his invention is no monopoly. It is no monopoly in any other sense than as a man's own house is a monopoly. A monopoly, as it was understood in the ancient law, was a grant of the right to buy, sell, or carry on some particular trade, conferred on one of the king's subjects to the exclusion of all the rest. Such a monopoly is unjust. But a man's right to his own invention is a very different matter. It is no more a monopoly for him to possess that, than to possess his own homestead."
"But there is one remarkable difference in the two cases, which is this, that property in a man's own invention presents the only case where he is made to pay for the exclusive enjoyment of his own: For by law the permission so to enjoy the invention for a certain number of years is granted, on the condition that, at the expiration of the patent, the invention shall belong to the public Not so with houses; not so with lands; nothing is paid for them, except the usual amount of taxation; but for the right to use his own, which the natural law gives him, the inventor as we have just seen, pays an enormous priee. Yet there is a clamor out of doors, calculated to debauch the public mind."
What have inventions done for America? Look about you—Almost everything that we now use—the necessities and the luxuries are traceable for their existence, their quality and their cheapness to patentable inventions some tracing far back and some nearer in time. The Bible was once written on clay tablets, then on papyrus, then on paper and even when printing came few could possess one. The King James version four centuries ago was so expensive that few could own one. Then came the cheaper Breeches Bible and now through a long string of inventions in the arts of pro* ducing materials for paper, in paper making, in transportation, in printing and in other arts, a good copy of the most extremely sold book in the world can be bought for about three per cent of one day's pay of a carpenter or a mason.
A vast portion of American labor and skill in our industries before the war, and now, is expended upon things that did not even exist fifty years ago. This is because of inventions that in the main were engendered by our patent system, and were put to work because of our patent system. There is strong reason to believe that this will continue and perhaps at an accelerated pace after the war.
Per unit of labor, the production on farms has many times increased over that of fifty years ago because of that same patent system. When some people talk about patents on inventions they seem to forget what they and the public get and resent the payment of any reasonable reward on the giver. We shall need the continued working of that patent system when peace comes. Probably we shall need it more than ever before. It is likely that we shall so need it that it would be fair to challenge the patriotism of some in our midst who would now destroy our patent system.
We talk about the post war need of foreign trade. None except those who would erase divisions of labor and who would go wholly primitive will deny that need and its virtues both here and abroad. What does our patent system mean in respect to it? In the past our patent system has given us the ability to compete in foreign markets against the products of cheap labor. It is because of that patent system in the main, that we have been able to maintain here the highest standards of living by protecting them with the only strong means we have—the encouragement and protection of our inventors in new and improved machines and processes under our tried patent system. There is no reason to suppose that this will be different when peace comes.
I shall not discuss what our inventions, our research and our patent system have meant to this war. No one knows the complete story. Many know enough of it to believe more strongly than ever before in the encouragement and incentive that our patent system gives to inventors both for the things of war and for the things of peace.
We have heard that our patent system is weakening because our courts are requiring higher standards of invention; that now an invention must be a discovery made in a flash of genius. Let us not be disturbed by taking this too literally. Everyone who knows anything about inventions is aware that the genius which produces them is generally found like other genius in a capacity for taking infinite pains. Inventors are usually researchers with eyes that see and ears that hear. They are men who know that success is usually grounded on a vast plurality of failures. They are patient men with honest minds whose judgment is not impaired by wishfulness.
What long climbs some inventions have made. The first steam engine of which history tells existed in Alexandria, Egypt in 130 B. C. It was a toy. For centuries, though Nero wrote about it, no one developed it into a real machine. Then in 1698 came Savery's Steam Engine—then Newcomens in 1705, and then came James Watts advance over Newcomen as found in Watts Patent issued in 1769. Watts avoided Newcomen's alternate heating and chilling of the cylinder. As Watt said he kept the cylinder as hot as the steam. It was quite simple—but a great forward step. In the 185 years since then, step after step has been made by a vast number of inventors in that field. The modern steam engine came from a line of flashes 1900 years long. It has been a step by step progress, each last step adding to what went before.
Watt made his first cylinder with a crude boring tool-He had some clearances of 3/16 of an inch between cylinder and piston. The cylinder would not work. A friend suggested another boring tool that produced a cylinder with tolerances of only 1/16 of an inch—that cylinder worked. It has taken a string of inventors from then until nearly the present day to provide tools such as some of the modern machine tools that will work in mass production down to tolerance of 3/10,000 of an inch. What this has meant in the world of such mechanisms as automobiles, engines, airplanes and thousands of other things nearly every one knows except some of the would-be benefactors of humanity whose aspiring flights take them beyond the view of realities. It is such a one who at nearly every session of Congress introduces a bill designed to end the patent system.
The notebooks of Leonardo de Vinci, (the Italian engineer, musician, mechanic, anatomist, philosopher and sculptor and painter) who lived from 1452 to 1519, illustrate a good conception of a flying machine. No other inventor brought to him an internal combustion engine. How pleased he would have been could he have had the work of almost innumerable inventors who over the years finally have given us airplane engines weighing hardly more than a half pound per horse power.
He knew almost as much about the principles of flight, gained from the study of birds, as did Octavo Chanute who aided the Wright Brothers. Notwithstanding Leonardo's flying machine efforts, and the endeavor of the many others who followed him through the centuries, for a long time no one produced a heavier than air machine that would actually fly under its own power.
In the early eighteen nineties a United States Commissioner of Patents turned down an application for a patent upon a flying machine stating in his opinion in substance that "If there is one scientific fact proved above all others, it is that the age-long dream of man to fly in machines heavier than air never can be realized. A few years later, on December 17, 1903 the Wright Brothers were flying at Kitty-hawk, N. C. What had they done? Why almost nothing at all over what had gone before. Their contribution was merely the adjustment of a few angles, generally known as the aileron control. Of course any mechanic could have done that. But no mechanic did. What the Wright Brothers did resulted in realizing the age-long dream of man. It was the difference between flying in the air and standing on the ground dreaming about it.
Our Constitutional forefathers realized the necessity of a Patent System for promoting the progress of science and the useful arts. So has our Congress. Congress has maintained the system. Congress in my opinion will continue to do so and should it become necessary, will enact further legislation to keep it effective.
Most of the great inventions are rather simple. Often they seem to differ little from what went before, except in the new results obtained by seemingly small novelty, Morse invented the telegraph. In 1831 he merely put together Faradays published statement on magneto electric induction and Dr. Watson's statement that thus an electric current could be sent through a length of wire. With that knowledge really smart men will now tell us that anyone could have invented the telegraph. The man who did it was a portrait painter. Of course he worked for several years developing and testing the application of it It was very simple. It was a great invention. It made practical progress. It was a new and useful art.
Alexander Graham Bell in the invention of his 1876 patent, combined an electro-magnet with a plate, a most simple thing to do—The Supreme Court in passing upon it said:
"In this art—or, what is the same thing under the patent law, this process, this way of transmitting speech-electricity, one of the forces of nature, is employed; butelectricity, left to itself, will not do what is wanted. The art consists in so controlling the force as to make it accomplish the purpose. It had long been believed that if the vibrations of air caused by the voice in speaking could be reproduced at a distance by means of electricity, the speech itself would be reproduced and understood. How to do it was the question.
"Bell discovered that it could be done by gradually changing the intensity of a continuous electric current, so as to make it correspond exactly to the changes in the density of the air caused by the sound of the voice. This was his art. He then devised a way in which these changes of intensity could be made and speech actually transmitted. Thus his art was put in a condition for practical use."
In a recent case entitled Potts v. Coe, 140 F. (2d) 470, the Court of Appeals for the District of Columbia made some extraordinary observations.
"The opinion declares that patents are not intended as a reward for a highly skilled scientist who completes the final step in a technique, standing on the shoulders of others who have gone before him. By the same token they are notintended as a reward for the collective achievement of a corporate research organization. Today routine experimentation in the great corporate laboratories can produce results beyond the imagination of twenty years ago. But such contribution to industrial art are more often than not the step by step progress of an entire group, not the achievement of an individual. Such an advance is the product not of inventive ability but of the financial resources and organizing ability of those who operate the laboratories."
" * * * thus neither the result of great industry in experimental research nor the successful product of a gradual process of experimentation over a period is invention. Routineering, even by the most highly trained specialists, step by step improvements, the carrying forward of a new and more extended application of the art, are not invention."
The vacuum tube is seemingly a very simply device. Many inventors contributed to it. Some of them worked upon it in the Bell Telephone Laboratories, and in other large corporate laboratories vast sums were spent upon it. What did it contribute? Only this, that-it is the heart of modern long distance telephony, it is the heart of the movietone, it is the heart of radio. Its contributions to the business, to the comfort, to the happiness of mankind is incalculable. Many men worked upon it. Many highly organized laboratories contributed to it.
We do not see how the doctrine proclaimed in Potts v. Coe can ever become established law. Why should the nature of the facilities for inquiry themselves mitigate against the value or patentability of the results of research? Why should the work done in a corporation's laboratory be looked upon differently or be measured by tests different from those applied to work done elsewhere? Of course, it is seldom easy to determine whether a product or a process is the result of inventive thought on the one hand, or of mere mechanical skill on the other. It is the product itself or the process the contribution that it makes its novelty, its relation to the prior art and the art's history that should be considered on an issue of invention and not such irrelevant considerations as those presented by the opinion of the Court of Appeals for the District of Columbia. The quality of cow's milk cannot be best discovered by merely examining Bossie's pedigree.
Our patent laws have been changed and improved from time to time. They were extensively re-codified in 1870. There are now under study several recommendations for amendment. In respect to these, the National Association of Manufacturers, through its fine Patent Committee, has been doing highly constructive work.
It must be plain, however, that in its fundamentals and in its basic purpose our patent system must continue. There are some who are impatient with it. To such we would say that in the last century it has overwhelmingly proved its merit and that in the Post War period it will be found that our Patent System will take on a greater importance than ever before in our history. It is a system that accelerates progress; also it serves to promote competition in this, that when one, by a patentable invention, makes an advance, his competitors must and do endeavor also to make advances in the further promotion of science and of the useful arts.
The most important frontiers ahead of us now lie in the minds of American inventors. It is through protecting their work for a limited time that encouragement for still further advances will be given.
Patent owners should endeavor to make that Patent System fully perform its accelerating function. The shelving of patents merely for profit is usually a policy of shortsightedness and not promotive of the real spirit of our Patent System.
A better understanding respecting that system should be promoted. It should be a vigorous promotion. The strong arguments for keeping its essential integrity should be constantly made,—not only in such Associations as this, but also on America's highways and byways. When American labor, American industry and our citizens generally, fully understand its proved virtues and its place in American life the necessity for the continuance of the American Patent System in the Post War period will not be challenged.