Extraordinary Honesty/Stupidity In the Senate

by Steve Reiss (stevenreiss@scienbizippc.com)

I remember reading somewhere, though cannot recall where, that the patent community was arguing  that Congress was not qualified to amend the patent laws because Congressmen/Senators do not understand our patent laws. Its pretty much a given that the US Supreme Court does not understand patent law.

Well, it looks like whoever said that was correct...

Meet Senator Samuel Jordan Kirkwood (R-IA)(1813 –1894)

 

Here, in a speech before the senate, he admits to suggesting an amendment to the patent law, even though he does not understand the patent law.

**

December 18, 1878:

Samuel Jordan Kirkwood. Mr. President, I am not familiar with the patent law and never expect to be, and I merely suggested the doubt that arose in my own mind whether or not the insertion of this word might not require every man to be construed to have knowledge by the recording of the patent in the Patent Office.

As I before said, the purpose of this amendment, as I understand it, and certainly my own purpose in supporting it, is, as I have indicated, to give to the person who in good faith buys from a party
engaged in manufacturing an article or a party engaged in selling it in open market, without any knowledge that he is infringing the rights of any one, exemption from prosecution for damages, leaving the inventor to prosecute the manufacturer or the dealer. I understood the Senator from New Hampshire to say that it left the inventor without anything at all. Does he not have the power to enjoin the manufacturer; who is engaged in manufacturing articles in violation of his patent?

Not Awakening Slumbering Patents

by Steve Reiss (stevenreiss@scienbizippc.com)

From the Congressional Record:

I agree that the owner of a patent is as much entitled to his property in it as the owner of anything else, but he is entitled to no higher consideration than the owner of any other kind of property.

It is not the patentee who will suffer if this amendment shall pass, if anybody suffers. It is not the patentee who brings these suits; but it is usually a combination of agents and lawyers who find slumbering in your Patent Office some forgotten and worthless patent which, under the advantage given them by your present system, they can use as a means of robbing the people—it is they that bring the suit under some arrangements by which the profits are divided.

Now, sir, while I respect the genius and the talent of the inventor and will protect him as far as I can, I submit that it does not require any more talent or genius to buy or steal a patent than it does to buy or steal a horse, and therefore to the purchaser I would accord no more powers than I would to the man who owns any other kind of property by purchase. Possibly there may be some slight inconvenience growing out of this amendment to some of the patentees, but the inconveniences as I stated a moment ago do not weigh at all as against the great benefits that the people would receive by the protection which it would afford.

Senator William Windom (R-MN) speaking in favor of an amendment to the US patent laws, to add a new section to the Revised Statues (now United States Code), saying:

In any suit brought in any court now having jurisdiction in patent cases for an alleged infringement of any patented article, device, process, invention, or discovery, where it shall appear that the defendant purchased the same from the manufacturer thereof, or from a person or firm engaged in the open sale or practical application thereof, or that he manufactured or applied the same for and to his own use, and not for sale nor for making a product, for sale, if the plaintiff shall recover a judgment for merely nominal damages, the court shall adjudge that he pay all the costs of the suit; and if the plaintiff shall not recover the sum of $50 or over, the court shall adjudge him to pay his own costs, unless it shall also appear that the defendant, at the time of such purchase, manufacture, or practical application, had knowledge or actual notice of the existence of such patent, and that such purchase, manufacture, or practical application was an infringement of the rights of the plaintiff.

While complexly worded, Windom told the senate that under this new section:

The patentee has his remedy, if this amendment shall pass, against the maker and the vender of the patented articles, and he has also his remedy against the purchaser and user wherever that purchaser or user has notice that the patent has been infringed. It seems to me that this is a sufficient remedy.

 Congressional Record-Senate, January 20, 1879, p. 569-70.

Thus, to recover from a mere purchaser, actual notice that the purchased product was an infringement would be required.

Congress Simply Does Not Change When It Comes to Patent Appropriations - 1880 Version

by Steve Reiss

Mr. VANCE:

...

At the present time it is very important that the Committee on Patents should have control of the appropriations, from the fact that I hold in my hand the report of the Commissioner-of Patents which states that he has not under bis control a sufficient force to do the work of the office, and it is alleged to be a fact, and I believe it to be true, that at this time the inventors of the country are compelled to wait a month before they can receive their patents after the application has been filed.

[Here the hammer fell.]

The committee divided; and there were-ayes 39, noes 82.

So the amendment was rejected.

HOUSE OF REPRESENTATIVES: CONGRESSIONAL RECORD (46th Congress; 2nd Session) (Feb. 11, 1880) Vol X, p. 824.


Robert B. Vance (D-NC ) (April 24, 1828 – November 28, 1899) was the four-term Chairman of the Committee on Patents. President Grover Cleveland appointed Vance assistant commissioner of patents.