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THE PATENT LAW AND ITS PRACTICE.
LYSANDER HILL, OF CHICAGO.
One of the fundamental laws of evolution is based upon the observed tendency in all living things, and in the social institutions of mankind, to reach their highest development by a constantly increasing specialization of their faculties, organs, or functions. From the operation of this law, our noble profession is not exempt. The ten. dency to specialization of the departments of legal practice is but little felt in sparsely populated districts, where the lawyer is oppressed not by the pressure of, but by the pressure for, business; but in populous and thrifty regions, and especially in the congested centers of population and manufacturing industry, it at once becomes manifest. In the smaller country towns, the lawyer is not well equipped for the struggle against competition, unless he is ready at any time to handle any kind of a case. There is not sufficient business in any one department to justify the concentration of his powers upon that department alone, and therefore he must spread himself over all. On the other hand, in the large centers of business, a signal success in a few cases relating to some one branch of the law, often throws so much business of that kind into the successful lawyer's office, as to command the greater part of his time and drive out all other departments—and he becomes a “specialist.” By concentrating his entire attention upon that one line, his labors, studies and experience enable him to thoroughly master it, and, together with the peculiar personal adaptation which caused him to achieve his first successes, give him a decided advantage over others of less experience; and, to sweeten his labors, the size of his fee and the importance of his clientage advance with the growth of his reputation.
In Chicago, New York, Boston, Philadelphia, and other great cities, one lawyer becomes distinguished in real estate law, another
in corporations, a third in contested will cases, a fourth in criminal trials, a fifth in equity, a sixth in Federal practice, a seventh in admiralty, an eighth in insurance, a ninth in railroad or telegraph law, and a tenth in the law of patents, trade marks, or copyrights. The speaker is himself an example of the natural operation of this tendency to specialization. Educated for the general practice, ten years of application thereto brought him his first patent case; with the result that in a few years patent and corporation law demanded his entire time. His history, in this respect, is only that of thousands of other lawyers, who have been thus "evolutionized" into a distinct department of their profession-often not without frequent regrets, all along through their life, that they have thus been practically expelled from the broader domain of the general practice; and, again, often with a keen enjoyment of the advantages given by a thorough mastery not only of the general principles, but even of the minutest details of the special department into which they have thus been forced.
The specialization of the patent law did not begin to take place till about 1850. Prior to that time, the names of Webster, Sergeant, Mason, and other great lawyers in general practice are found in the reports of the leading cases on patents. At about that date. Keller, Harding, Whiting, Chauncey Smith, Causten Browne, Goodwin, Chase, Stanton, Seward, Watson, Stoughton, Latrobe, Baldwin and Gifford began to monopolize that branch of the profession; and it has remained to this day almost exclusively in the hands of specialists.
The reason for this change is not obscure. Prior to 1836, the American Patent Law differed but little from that of England-resting mainly on a few general principles established by the English courts, and as to which the English text-books and reports were the best authorities. And there were but few patents, and, consequently, few patent cases. But in 1836 Congress enacted our present system of Patent Law-a highly developed system, widely departing in many respects from that of England, and which required careful study independently of the English law-books. Cases, too, began to multiply. The Burden puddling process, the Sickle's cut-off, the Hansen lead pipe process, the Wells' hat machine, the telegraph, the sewing machine, the harvester, the Goodyear process of vulcanization, the Colt revolver, and other great inventions and discoveries appeared between 1836 and 1850, and demanded lawyers who should devote to them substantially all of their time. No lawyer could take such vast interests in his hands and have much or any spare time to devote to other lines of cases. No lawyer who desired to retain his general
practice could afford to go into such cases. The process of specialization, therefore, proceeded very rapidly, and soon became an accomplished fact.
One of the results has been that the general lawyer has come to look upon the Patent Law as something in which he has no personal interest, and which it would be a waste of his time to study. He is further deterred by the fact that occasionally such a case involves recondite questions of science with which only the most learned professors and advanced thinkers are familiar, and with which he feels himself not qualified to deal. Besides, many a good lawyer is so unfamiliar with mechanics, chemistry, and the natural laws governing fluids, that he distrusts his ability to cope successfully with any case involving any of them. And thus it has come to pass, years ago, that the general lawyer has neglected to qualify himself to han. dle even the simplest kind of a patent suit regarding its proceedings as a mystery akin to those of the ancient alchemists. Yet it is far from being true that there exists in this branch of the law any peculiar mystery; while, on the other hand, it is true that nine out of ten good lawyers, the country over, would make successful patent lawyers if they would only give to that branch of the law the same degree of attention that they give to the various other branches. I have frequently tried cases of this kind, arising on contracts, before State Judges and juries, and have always found that they grasped the principles of the Patent Law, and understood the intricacies of the machinery brought before them, with remarkable facility and accuracy. The judges of the Federal courts, when appointed seldom have any knowledge of Patent Law or of mechanics; and yet we find them qualifying themselves almost immediately to decide the most complicated cases that ever arise in that department. There is no reason, therefore, why the general practitioner should hold himself aloof from this, by far the most interesting, branch of the law-unless it be that he has no need of enlarging his business, or that long patent suits in chancery, requiring him to absent himself from home for weeks at a time, in the taking of testimony, would unduly interfere with his regular practice in the local courts.
I have remarked that the Patent Law is the most interesting department of legal practice—a remark which will be verified by all lawyers who, having first been engaged in the general practice, have afterwards been drawn into the field of patent law. It will also be verified by nearly all the Federal judges, who have been called from the general practice to preside in courts largely engaged in the trial of patent causes. Almost all test cases under the patent law in