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Mr. LOGAN, of Pittsburg.-I move the adoption of the report.
Mr. HARVEY, of Philadelphia.-I second the motion.
The report was adopted.
ADMINISTRATION OF PATENT LAWS.
The PRESIDENT.-The next is Administration of Patent Laws. Mr. FISH has that in charge.
Mr. FISH, of Boston.-I think we all realize that the patent system of the United States has been of controlling importance in the development of our industry. Our pre-eminence in many industries and our success in all have been largely due to the fact that we have undoubtedly the best patent system in the world. But good as has been that system, it has been in its administration the subject of many defects, and a good many of us who are familiar with it have been for a long time studying the problem to see how the procedure and the administration of this admirable patent system can be improved.
A number of years ago it became absolutely certain to those of us who are familiar with the subject that one of the first things to be done in order to put the administration of this law in proper shape was to establish an independent court of patent appeals.
Prior to 1811 the Supreme Court of the United States was the tribunal which was the Appellate Court for all patent cases, but in that year there was a reorganization of our judicial system, due to the fact that the Supreme Court was overcrowded with work, which resulted in nine Circuit Courts of Appeals in various parts of the United States; one, for instance, for the States of Maine, New Hampshire, Rhode Island and Massachusetts; one for Vermont, Connecticut and New York, and so on, until the ninth covers the Pacific slope. That resulted in bringing about the sitnation that there was no longer a single Appellate Court
determining all the questions that came up in patent cases. But there were nine courts instead, and no right of appeal to any single tribunal.
The Supreme Court sometimes, as a matter of favor, will send down for a record in a case by a writ of certiorari; but the Supreme Court is overburdened with work and rarely gives the parties the benefit of that form of appeal.
The result is that in these nine courts of appeal there has been a mass of decisions which are not in harmony with each other, there is no uniformity of view. The atmosphere is different in the different courts of appeal and the patent system has been definitely unsettled by the fact that these courts approach the subject in nine different ways, and that the decision of one is not binding upon any of the others. A patent that is sustained in one circuit may be declared invalid in another. And on the other hand, where the defendant has succeeded in one circuit there may be another suit in which the plaintiff will succeed in some other circuit. The result is that patents are sometimes in litigation for practically the whole of their term.
This is a most extraordinary hardship to the public. Of course, every patent suit is really a question between the owner of the patent and the entire American people, for a patent runs for the whole country, and if it is good as against one man who happens to be sued it is good against a hundred or a thousand or ten thousand or a hundred thousand men who want to use that device. If it is bad, it is bad against everybody. It is a matter of the utmost consequence that the validity and scope of the patent should be determined at the earliest possible moment. If it is not so determined, then the public does not know its rights, people do not know whether they are bound to respect that patent, which is for something they want to use, or whether, on the other hand, they are free to use it. But after the first suit, which ought, in accordance with all sound theories and practice, to settle the entire question, there really is too often the beginning of further litigation investigation, for, as I say, however that suit goes, other suits are apt to be begun in
other courts on the chance that some of the other courts will come to a different conclusion.
A good many years ago those of us who were disturbed at that situation brought up in the American Bar Association a bill for a National Court of Appeals, which has met with universal favor everywhere. It has been strongly advocated by the American Bar Association. It has been promoted by the National Society of Manufacturers and many other manufacturing and commercial organizations throughout the country, as well as by many other bar associations. The bill provides for an Appellate Court of a peculiar character. We all feel that we do not want a court that is a court of mere specialists, who spend their lives on one subject and therefore would be incompetent to deal even with that subject-which is always the case where men deal with one question and nothing else year in and year out. The scheme of this particular bill which is now pending in Congress is that the very men who have been appointed by the President as Circuit judges, and whose duty now is to decide patent cases on appeal in one or other of the nine districts, shall still decide the patent cases; but instead of there being nine tribunals, the Supreme Court of the United States shall send down into the circuits from Maine to California and bring up four men to assist, with one Chief Justice, who will be a permanent officer of the court, and to determine the appeals in patent cases those four judges who are brought up for this Appellate Court shall sit for terms of six years.
That gives us the advantage of having the very men who are selected, not because they are patent men, but because they were judges qualified for the work in their particular communities, to continue to do the work for which they were appointed, but to do it under such conditions that there is one court and not nine.
The result is sure to be that after the first trial of a patent in the early stages of infringement of the patent, substantially all the questions will be settled, for with that single Appellate Court its decision will be binding on all the courts in the land. With nine Appellate Courts their
conclusion is not binding anywhere except in their own limited territory.
In addition to that, if this proposed plan is carried out, when these men that have been brought up from other circuits come back to their circuits, they come back as accomplished patent judges who have not only read the books and decisions, but have actually sat in the Appellate Court, and the result will be that in the course of time there will be thoroughly intelligent judges trained in patent cases all over the United States, thus confirming what we are after, and that is, an absolutely definite system of patent law, so that lawyers can advise with intelligence and the public can find out what are their rights.
Now, gentlemen, this is a very serious matter for everybody. I should not like to state my view as to the tens of millions, in fact, hundreds of millions of dollars that depend upon the accurate decision of these patent cases. I should not like to attempt to describe the hardship to the community on account of the fact that under the present conditions there is so much uncertainty in patent law.
One other thing. The procedure in patent cases is cumbersome and ineffective and leads to much injustice. There is no doubt that with this single Court of Appeals dealing with the subject it will be greatly improved, which would be a matter of the utmost importance.
At the present time a bill is pending in Congress which has been several times approved by the Committee on Patents, and has been reported favorably by the Judiciary Committee of the House, and now we have just had a hearing before the Committee on Patents in the Senate, and we are extremely anxious that that bill-and I speak for the American Bar Association and other associations as well as for myself-should pass at this session if it is possible for it to pass. A special effort is being made to interest the business men of this country, who of all others are the ones that suffer, even if they do not know it, because of this condition of things, to help out in this matter.
The result is that Mr. REYNOLDS and myself have agreed on a report which will commit the National Board of Trade
to favorable action on this bill, and we have put the recommendation in a form that is rather unusual, but which I think you will see is really the best form at this time.
A week ago last Friday I was here in Washington at a hearing of the sub-committee of the Committee of the Judiciary of the Senate, which has that bill in hand and is now considering it. We should like to have the National Board of Trade, representing as it does so many interests of all parts of the country, send a memorial to Congress. Other bodies are doing it throughout the United States-for instance, the American Bar Association and other associations have definitely instructed Congress as to their views. Therefore I am authorized by Mr. REYNOLDS, and speaking also for myself, to offer the following resolution:
Resolved, That the following memorial be executed by the President and Secretary and transmitted to Congress :
To the Senators and Representatives of the United States in Congress assembled:
The National Board of Trade is made up of a large number of commercial and manufacturing associations and bodies from all parts of the United States, which are organized for the general benefit in matters of public concern and not for private purposes. It respectfully presents this memorial to Congress :—
The National Board of Trade its members and all individuals engaged in business throughout the United States are deeply concerned in the passage of the pending bill (H. R. 14,622 and Senate 4,982) to establish a United States Court of Patent Appeals. The business interests of the entire country are vitally affected by the administration of the patent law, and the uncertainty and confusion which inevitably result in that branch of jurisprudence from the divided jurisdiction vested in nine independent United States Circuit Courts of Appeals, are a serious loss and injury to the whole community. Therefore, your memorialist asks of Congress speedy consideration of said bill and its enactment as law.
Presented in pursuance of a vote of the National Board of Trade at its annual meeting at Washington, D. C., January 17, 1911.
H. C. REYNOLDS.
I should be very glad to say anything more that is desirable on this subject, because it is one I have had in