Canadian Patent System
It has become quite a common practice for certain persons to find fault with the present patent system. Some individuals would like to have a patent granted for anything to anybody who would make application for it, and pay the requisite fee, while others would like to have the government stand back of and guarantee the validity of every patent issued. Between these two extremes there is every shade of opinion, and between them undoubtedly lies the true ground.
Much of the opinion adverse to the present condition of things is due either to an ignorance as to what now exists, or a desire to have things different for some personal reasons. It is quite true that many things relating to our patent system could be changed to advantage, but it is equally true that these changes should come in the shape of improvement on what we have, rather than the substitution of something totally different.
It has been said that the possession of a patent simply gives the owner the right to sue and be sued. While this is somewhat of a pessimistic view of the matter, a patent at the present day at least gives this much, if it does not give any more. Under a system similar to that prevailing in most foreign countries, where a patent is granted to any one applying for it, a patent would hardly give this right. It would simply be an evidence that some individual had represented himself to be the inventor of such and such a device.
As every one has at some time met the self-styled inventor who is always going to get a patent, and have the world by the tail, but who never does, it is not difficult to imagine what would be the condition of things if all of these individuals could get patents as easily as this free-for-all patent system would make it. This kind of patent system would very largely increase the business of the patent attorneys, and it is, therefore, not surprising that some of its advocates are found in that class. The increase in the attorney business would not so much be due to increased number of applications as it would to the fact that inventors and purchasers of patents would have to employ attorneys to look into the scope and validity of every patent which made any pretensions to be anything.
Examination into the question as to whether or not a certain device is a new and useful invention, is the real meat of the whole matter, and one which it is well to carefully consider. Any decision on this matter, whether it comes from an attorney, the Patent Office, or the courts, is in reality the expression of individual opinion, and that opinion is sure to be influenced more or less by the extent of the examination and the bias of the individual making it. Therefore, if the person making or owning an alleged invention really wants to know whether the thing is new or not, it is of prime importance to him to have that examination as thorough as possible, and also have it made by some one who has no personal interest in the nature of the decision.
Any investigation into the merits of an invention must be limited by the facilities for examination, and the time consumed, and any attorney who makes an examination comprehensive enough to be of any value must necessarily charge a large fee. Under the present patent system the applicant if his attorney does his business properly, compel the Patent Office to make this examination in a thorough manner, for the amount of the good fee. The facilities for examinations of this kind by the patent officials is superior to that at the command of any attorney, and while not all of the examinations, nor even the majority of them, are comprehensive, the power is within the applicant to make it equal or superior to one that an attorney would charge from five hundred to a thousand dollars for.
This much may be said for the present patent system as against the free–to–anybody system advocated by some, and it is not unreasonable to propose that the person who is expecting to spend his own money on some given device would like to have as much assurance as possible that he is not wasting it. This consideration doubtless gives rise to the wish that the government would guarantee and protect every patent issued. Without going into the reasons why this would be impracticable, it will be sufficient to point out that it could not but produce injustice to many. For example, suppose John Smith patents a device that Tom Brown has been making for some time. As Smith would have a guaranteed patent, Brown would be helpless, and would have to abandon or pay royalty for that which he himself was the original inventor. It is true that the government might issue a patent, and then guarantee it after a certain time, but this would compel the government to take an indefinite amount of testimony from all sorts of individuals at all sorts of places, and this would put the cost of a patent out of the reach of any but the wealthy.
The present system offers a good many opportunities for the applicant to take advantage of his own benefit, if he knows how, as the compelling the office to make the comprehensive examination before referred to. In some cases, applicants, and especially rich corporations, not only take these advantages, but actually abuse the privileges that are permitted. Most inventors, and particularly those who are making their first applications, are anxious to get their patents issued as quickly as possible. The old hands at the business take exactly the opposite course, and delay the issue as long as possible, well knowing that the life of the patent extends eighteen years beyond the day of issue. As an example, a patent was recently issued after lying in the office for fourteen years, and the owners have consequently secured protection for a term of thirty-one years. This is manifestly an abuse of privilege, and a circumstance that is at variance with the spirit, if not the letter of the law.
Various remedies have been suggested for this state of things, but as far as I am aware, they all relate to some means for expediting the patent through the office. While this would doubtless cure the evil, it is likely to work injustice to maininnocent parties, for applications often get unexpectedly tied up in interferences. A much better plan would be to add a clause to the law, providing that the life of no patent should extend to a date more than twenty years subsequent to the day of first filing in the Patent office. This would give every applicant all of the time he wanted in which to obtain a patent, while at the same time there would be no object in needlessly delaying the issue.
Engineer and Inventor, 1893
