If the Senator Say So, That Must be the Truth

by Steve Reiss (stevenreiss@scienbizippc.com)

On December 18, 1878, in the US Senate, during speeches on proposed changes to the patent laws, William Windom (May 10, 1827 – January 29, 1891), U.S. Senator from Minnesota gave a speech making remarkable charges but with little evidence. Though some of his underlying arguments are as valid now as then, they were somewhat hyperbolic. Excerpts follow:

William Windom

Mr. WINDOM. Mr. President, the object of this amendment will be very apparent, and I will not take the time of the Senate to discuss it at any length. It is intended to remedy very great wrongs
which are being perpetrated under the cover of our patent law.

The law now gives to the patentee or to the purchaser of a patent a sweeping right of action against everybody. The proposed amendment takes away such right of action in the courts of the United
States against innocent parties who use the invention without knowledge of its existence an
open market from a dealer who is engaged in the sale of such articles or from the manufacturer thereof. The remedy still remains against the manufacturer and the seller. I think I am safe in saying that there are a hundred thousand patents to-day in the Patent Office of the United States for little insignificant inventions, covering every conceivable thing used in your kitchen, upon your farm, in your work shop, of which the persons buying have no means of knowledge. Now, the object of this amendment is to prevent the oppression and the great injustice that is being perpetrated upon hundreds of thousands of innocent people by means of the patent law. A common coal-stove, I am informed, is covered by at least twenty patents, almost every part of it; and your laws encourage the issue of the largest possible number of patents. If, for instance, an applicant thinks he has devised a new and useful kind of stove, and that device includes a dozen different contrivances, instead of taking out a single patent for the whole and getting a patent for that kind of stove, your laws and this bill, I believe, expressly provide that he may divide his application into different patents, giving him the opportunity after they are thus subdivided to assign one to A, another to B, another to C, and then for a single coal-stove which the poor man uses upon the prairies to keep his family from freezing a dozen men may sue him for a dozen different royalties.

I want to free him from such harassing and vexatious suits. Give the patentee his full redress against the vendor, against the manufacturer, or against the man who has knowledge of the patent, but do not send him into every farm-house and cottage in this country to harass the people with vexatious suits, about that of which they never could by any possibility have had knowledge. That is the object of this amendment.

Congressional Record for December 18, 1878, p. 270 (emphasis added).

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.