The Journal of the Patent Office Society on Patent Prosecutors (1918)

by Steve Reiss (stevenreiss@scienbizippc.com)

From:

The builder for the patentee is the solicitor of patents. Upon the intelligence and care with which the solicitor draws his description and claims depends the stability and effectiveness of the patent. In an oft-quoted sentence no less an authority than the United States Supreme Court has recognized the high quality of skill required in the drafting of patent claims. [See e.g. Topliff v. Topliff, 145 U.S. 156, 171 (1892)].The ideal patent solicitor should be artisan, engineer, scientist, lawyer, philosopher and prophet — nothing less. And yet, even officers of the executive departments have fallen into the error of classifying patent solicitors with claim agents, and with surprising frequency the inventor and investor choose to pinch on the foundation and spend in salvage.

EDITORIAL,  1 Journal of the Patent Office Society 50, 50-51 (1918) (emphasis added; how poetic).

More on George Washington, His Inventive Genius, and our First President's Bathroom Habits? (1891)

by Steve Reiss (stevenreiss@scienbizippc.com)

I have previously described how Dr. J. M. Toner, M.D. in his speech at Mount Vernon at the Centennial of the Patent Act of 1790, wrongly states to over 600 persons well-versed in our patent history that George Washington might have been the one who "introduced the proposition regarding Patents and Copyrights" to the Constitutional Convention of 1787. As previously mentioned in the earlier post on Toner's speech, Toner was no hack. Indeed, he was introduced to the audience by J.Elfreth Watkins, Curator, U.S. National Museum as follows:

It seems eminently proper that upon this important anniversary, you should be addressed by one, a large portion of whose long life has been devoted to preserving the history of the Father of our Country. As a son of Virginia, standing upon this historic ground,it is indeed an honor to be permitted to introduce the orator of the day, Dr. Toner, of Washington.

Proceedings, p. 30.

Mount Vernon

Though Toner misstates Washington's role at the 1787 Philadelphia Convention relative to the introduction or suggestion of the Patent Clause, Toner correctly associates Washington to the Patent Act of 1790. Proceedings, at p. 318.  It is well known that Washington pushed the First Congress to quickly enact a patent act. On January 8, 1790, President Washington delivered his first State of the Union speech to Congress. Washington told Congress:

The advancement of agriculture, commerce, and manufactures by all proper means will not, I trust, need recommendation; but I can not forbear intimating to you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home...

See Gene Quinn, Celebrating Presidents Who Advocated for the U.S. Patent System.

Dr. Toner's speech so wants to find ways to attach Washington to the American patent and invention traditions. Sometimes Toner's statements are strong and based on fact. At other times, he seems to be reaching or speculating for facts that just are not there.

For example, Toner says:

If it cannot be claimed that Washington originated the idea of recognizing property in inventions, he was, without doubt, the chief exponent of the views and sentiments which brought together the convention of delegates from the several States to consider their future well-being and to form a more perfect Union.

Proceedings, p. 313. These are some very lofty words in support of Washington's character. However, Toner seems to be saying that even if Washington had nothing to do with recognizing property in inventions, Washington was of the view that the Convention should consider how to form a more perfect Union. I have no doubt that the latter is 100% true. But the latter has logically little to do with the former. To me, these two ideas have little logical connection.

Toner also says:

Here, at Mount Vernon, the duty has been assigned to me, near the close of this brilliant and, I trust, profitable Patent Centennial, to speak to you of the great Washington as an inventor and promoter of improvements in the arts.

Proceedings, p. 317. Toner cites many anecdotes supporting his statement of "Washington as an inventor." As this is not an aspect of Washington's character that is widely known, summarizing Toner's bases for this conclusion is useful:

According to Toner, Washington's Journal said:

Wednesday, Mar. 26, 1760 • * * * Spent the greater part of the day in making a new plow of my own invention.'
Thursday, Mar. 27, 1760. * * * Set my plow to work and found she answered very well in the lower pasture...Saturday, April 5. * *  Made another plow, the same as my former. except that it has two eyes ...

Proceedings, p.  332-3.

His ever watchful attention to the matter of labor-saving machinery in the interest of the poorly-paid and over-worked farmer is apparent throughout the life and writings of Wash­ington. He made it a duty to read the standard works and annual publications on agriculture to obtain useful hints which might be of service on the Mount Vernon plantations.

Proceedings, p. 334.

... James Rumsey was, in 1786, experimenting at Shepherdstown on the Potomac with a boat to be propelled against a stream by machinery. Wash­ington was invited to witness the performance of his boat, so widely was it understood that be was an influential promoter of new inventions.

Proceedings, p. 346.

Here, Toner mixes fact with strong speculation (emphasis added):

Washington possessed, to an eminent degree, those special qualities which are characteristic of the most astute inventors, and had not his time been so fully taken up in the important affairs of his country, he would, in all probability, have given much attention to improvements in agriculture and the machinery and implements used in the domestic arts, which are so essential to the comforts of civilized life. Washington had made for him the first pump used in the town of Alex­andria, and another at Mount Vernon, at a time when but few had been put in competition with '' the old oaken bucket,'' the rope and windlass, or the balance lift, so common in wells throughout the South in early days. He had the genius to see things as they were and to appreciate their true relation.

Proceedings, p. 348-9.

In a letter to General [Benjamin] Lincoln, dated Mount Vernon, 6th Feb., 1786, General Washington uses the following language in relation to a supposed important discovery [SR- though not attributed to Washington]: "The discovery of extracting fresh water from salt, by a simple process and without the aid of fire, will be of amazing importance to the sons of Neptune, if it is not vitiated or ren­dered nauseous by the operation, and can be made to answer all the valuable purposes of other fresh water at sea. Every maritime power in the world in this case ought, in my opinion, to offer some acknowledgment to the inventor."

Proceedings, p. 357-8.

Tradition credits Washington with having invented and patented a plow. I have not, how ever, found any testimony to sustain the claim.

But I do find the following entry in one of the "Store Books of issue" at Mount Vernon under date of Sept. 1787. ''A packing box for a plow model one hundred and fifty nails used in making box." Query: Was the model here referred to one of Washington's own invention and being shipped to a manufacturer or to officials granting patents? 

Proceedings, p. 370, n. 46.

To President Washington we are indebted for the graceful and convenient device of the dinner wine coaster.

Proceedings, p. 374.

In his Diary January 22d, 1790, will be found the following entry: '' Called in my ride on the Baron de Poelnitz to see the operation of his (Winlow's) thrashing machine. 

Proceedings, p. 377. That Washington lived in a different time with different customs, it is interesting that Toner comments that further to Winlow's thrashing machine, Washington wrote in his journal:

Women and boys of 12 and 14 years of age are fully adequate to the management of the mill or thrashing machine." 

 Proceedings, p. 377.

I think enough evidence has been adduced to make it apparent that the mind of Washington was preeminently efficient in devising expedients and all the essential machinery to accomplish in the shortest time and in the best manner.

Proceedings, p. 378.

And Toner then says:

While it may not be claimed that George Washington is descended from a line of inventors, sages or heroes, ... The instances in which Washington gave encouragement to new inventions are numerous, and the fact is beyond question that he invariably provided the best machinery for his mills and farms, and everything considered, for all the industries under his control, as is testified in many letters.

Proceedings, p. 317.

And this brings us to one final statement from Toner's speech. It may be 100% correct, but it is a ridiculous, throw-away paragraph of what today we would call TMI - or "Too Much Information." This paragraph has nothing to do with patents, invention, Washington's character, or good taste; even if we are speaking of a different era. I wonder what the 600 distinguished members of the audience thought when they heard Toner say (emphasis added):

The regular hour for dining at Mount Vernon was three although the working-people dined at twelve o’clock. It was the General’s habit to make a toilet immediately before sitting down to table, whether he had been out riding or had remained in or about the house, was alone or had company. The opportunity was also afforded to all guests to refresh themselves before going into the dining-room.

Proceedings, p. 340. 

I say, "Huh?"

**

Confusion At Mt. Vernon on Who Introduced our Constintutional Patent Clause (1891)

by Steve Reiss (stevenreiss@scienbizippc.com)

In 1891, there was a massive celebration for the Centennial anniversary of the US Patent Act of 1790. Lectures and speeches about the US patent system were given by all levels of knowledgeable and important men. The speeches fill 500 pages of The Proceedings. The copy pictured is one of a kind; I purchased the loose, untrimmed pages, many years ago and had it custom bound. Remarkably, I have only recently got around to reading it. I will have a lot to say about it.

One speech was "General Washington As An Inventor And Promoter Of The Useful Arts - An Address Delivered At Mount Vernon, April 10. 1891, By J. M. Toner, M. D., On The Occasion Of The Visit Of The Officers And Members Of The Patent Centennial Celebration". Over 600 important persons traveled by boat down the Potomac to Mount Vernon to hear Dr. Toner's speech.

Dr. Toner says:

It is not certain who introduced the proposition [at the Constitutional Convention of 1787] regarding Patents and Copyrights; but, considering the personnel of the convention, it might have originated with either Washington or Franklin, and was certain of an earnest support from both.

Proceedings, p. 316.

While it is true that it is not certain who introduced the patent clause to the Constitutional Convention, it is certain that it was not either of Washington or Franklin. Dr. Toner's mistake is not his alone; apparently others have made this claim. However, as Edward Walterscheid, a noted US patent law historian says: 

The contention that a provision for copyrights and patents was "urged by no one less than Washington" in the context of the Constitutional Convention is simply wrong.

See Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts:the Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 41 (1994) (citations omitted).

If there is any uncertainty, the uncertainty lies with whether it was James Madison or Charles Pinkney, both of these two men, or Pinkney alone, and what was the language actually introduced.  See id, 45-51 (1994).  Adding to the confusion are conflicting writings of Madison, See id, and Pinkney's controversial role at the Convention, where claimed to have been the most influential delegate.

Bruce Bigbee's classic history of the US patent system adds to the confusion, saying: 

 David Brearley of New Jersey arose and presented to the assembly five suggested amendments concerning the powers of the future Congress.

The first four enlarged, restricted, or otherwise modified powers already contemplated in the emerging draft of the Constitution. The fifth proposal contemplated the creation of an entirely new Federal power protecting the works of authors and inventors.

Bruce W. Bigbee, Genesis of American Patent and Copyright Law (1967), p. 127.

As Dr. Toner is a noted historian and student of Washington, I try to give Dr. Toner's mistaken speech the benefit of the doubt. However, doing so is difficult. Walterscheid's conclusions do not reflect some modern or revisionist interpretation. For example, the Madison/Pinkney connection was described in the very first speech of the Centennial, "Birth And Growth Of The American Patent System", By Hon. Charles Eliot Mitchell, Commissioner Of Patents. Proceedings, p. 47.

How Dr. Toner could make such a major blunder in front of such a group of knowledgeable persons is inexplicable.

**

Only the Best: Bell (telephone) and Bartholdi (Statue of Liberty)

by Steve Reiss (stevenreiss@scienbizippc.com)

Trivia Question:

What does Alexander Graham Bell (March 3, 1847 – August 2, 1922) and Frédéric Auguste Bartholdi (2 August 1834 – 4 October 1904) have in common?

Answer:

They are both of European birth?

True, but not what I am looking for.

They both had patents?

Partially, but there is more to it than that.

They were beer buddies?  No, there is no evidence of that.

Give us the answer already, please.

Fine, they both had the same patent attorney, Anthony Pollok. Pollok immigrated to the United States about 1884 where he built a successful law practice and enjoyed the opulent lifestyle of a prosperous Washington, D.C. lawyer. Pollok's office was a half block from the Patent Office.

According to Wikipedia, Bell wrote of Pollok:

"Mr. Pollok has the most palatial residence of any that I have ever seen. It is certainly the finest and best appointed of any in Washington. None of the rooms are less than fifteen feet high. The portico is also about fifteen feet high - supported by massive polished Aberdeen-granite pillars. Mr. Pollok has been introducing me to some of the elite of Washington. Yesterday we called upon Mrs. Bancroft (wife of the historian)... Today we called on Prof. Henry of the Smithsonian - and on Saturday Mr. Pollok gives a party in my honor - and I expect to meet Sir Edward Thornton and members of the other foreign Embassies."

Bell's First Telephone Patent - See Pollok's Name in Lower Right Corder

The Statue of Liberty Patent (see Pollok's name in lower right corner).

  

Jefferson to His Cousin About Potential Patent (January 1809)

by Steve Reiss (stevenreiss@scienbizippc.com)

The following is text from a letter from Thomas Jefferson to his young cousin Richard Randolph of the famous Randolph family of Virginia. The letter is dated, January 19, 1809. 
 

Thomas Jefferson

Under the Patent Act of 1793, at this time in 1809, interestingly,the patent would have been granted by Jefferson's Secretary of State, the president-elect, James Madison. The Secretary of War, referred to in the letter, was Henry Dearborn.

James Madison

Henry Dearborn

 The letter is now available for purchase for about $18,500, from a rare-bookseller in Germany: 

 I have duly received your letter of the 10th mentioning the invention of a bridle having the advantage of not going into the horse’s mouth. You know of course you can have a patent for the use of it on the terms mentioned in the patent law. In the event of the Secretary of War’s approving it, & wishing to make use of it, it would become a question whether he could give a price for permission to use it. I rather believe it would be lawful, but that he would venture to use it very moderately. If you should wish to try this latter experiment & would forward the bridle by the stage to me, I would submit it to his examination & take care that no use should be made of it injurious to your views. It would not at all be necessary for you to come here. Should the corps of volunteers proposed be raised, the appointment of the officers from field officers downwards will pretty certainly be referred by the President to the state executives. That is the quarter therefore to which your application will be to be made. I salute you with esteem & respect."