Thus in a class that is founded on a well-chosen basis that brings

together things bearing close resemblances to each other, all types that

contain the elements essential to produce a complete practically

operative means will be found in subclasses that have a position

somewhere between the beginning and end of the list of subclasses of the

class. Those that add features of elaboration of the essential types and

those that are highly specialized to some particular purpose within the

definition of the class will stand above the essential type subclasses,

while those subclasses for parts and details will stand below those for

the essential types.

_Indented schedules._--In an indented schedule all subclasses in the

first column reading from the left are species to the genus represented

by the class title.[9] All subclasses indented under another subclass

are species to the genus represented by the subclass under which they

are indented. If a title has no number, it represents merely a

subject-matter to be divided, a genus,--having no representatives except

in the species under it. If a subclass having a generic title has a

number, it not only represents a subject-matter to be divided into

species but also all other species not falling within the titles

indented. Although these relative positions might imply that only

proximate species are indented one place, yet mechanical difficulties

render it impracticable to so arrange that all species shall be indented

under their proximate genera.

Indention properly carried out has a tendency to prevent in the process

of logical division the logical fault of proceeding from a high or broad

genus to a low or narrow species. This latter fault may inadvertently

separate things that belong together. If, for example, it were desired

to divide balls in the stated illustration according to material, an

immediate division of balls into aluminum, zinc, glass, ivory, rubber,

would be less useful than to divide into mineral materials and

nonmineral materials as follows:

Balls--

Mineral--

Nonmetallic--

Glass.

Metallic--

Aluminum.

Zinc.

Nonmineral--

Vegetable--

Rubber.

Animal--

Ivory.

However, it is evident that indention carried to its full extant, useful

as it is in keeping analogous things together, would make the printing

of schedules complex and unwieldy. Nevertheless, in the generalizing

process necessary in logical division and arrangement, the divisions of

species should always be _mentally indented_, as it were, under their

_proximate_ genera. Thus, under a genus unnamed may be arranged several

species in juxtaposition, without actually printing the name of the

genus, so that the schedule above may read:

Balls--

Glass.

Aluminum

Zinc.

Rubber.

Ivory.

In an arrangement printed in idea-order, though relegating the genera

mineral, nonmetallic, metallic, nonmineral, vegetable, animal, to the

mind unaided by printed words, the different species of the same genus

may be kept together except that species for which no title has been

provided must go back to the subclass under which the named species are

indented. Thus the arrangement above necessitates placing in subdivision

"Balls" all _copper_ balls, whereas indention under proximate genus

"metal" would have brought all metal balls together. In a finely divided

classification, printing of titles for all genera is not practicable;

hence great care ought to be directed toward grouping species according

to the principles of arrangement herein outlined, noting that whenever a

change of basis is made, a new genus is implied, and that subclasses for

all other species of the same genus under whatever name, must be brought

into juxtaposition as if indented under the implied genus.[10]

_Bifurcate division._--Most discussions of classification make reference

to the so-called bifurcate scheme of division as the only one by which

exhaustive division can be surely achieved. This is commonly illustrated

by the ancient tree of Porphyry. By this method any subject it is

desired to subdivide is first divided by writing the name of one

selected species at one branch and writing at the other branch the name

of the same species prefixed by "Not." Thus the Agassiz classification

of living beings divides them first into sensible and not sensible

(plants). A botanical classification divides plants into flowering and

not flowering. A zoological classification divides animals into

vertebrate and not vertebrate. By continuing the process of division in

the same manner, the division is obviously exhaustive of the subject,

there being always a negative subdivision to receive any subsequently

created or discovered species. Although bifurcate division has been

ridiculed by some, it is agreed by highest authority that it is the only

plan of division by which one can be sure to have a consistent place for

everything, or by which one can be certain that the divisions are

mutually exclusive. It can be demonstrated that a classification

schedule in which the relation of genera and species is shown by

indentions, if correctly formed on the principles now sought to be

applied in the revision of the Patent Office classification, is

susceptible of conversion into a tree of Porphyry, while unlike the

latter it is compact and wieldy.

_Utility of arrangement according to resemblances._--The expedient of

indicating kinds of relationship between several equally indented

divisions by relative position has the following utility:

(1) A uniform rule is provided, applicable to all classes, for placing

inventions that bear the relation of whole to part in subdivisions

before those that bear the relation of a part to that whole, and those

that are defined by a particular effect, product, material, or use

before those that are defined by a function or an operation applicable

generally to various effects, products, materials, or uses; whereby that

portion of the schedule in which any invention belonging to any

particular class should be found may be approached whether or not the

investigator knows the name of the object sought for or the title of the

appropriate subdivision.

(2) The substantial impossibility of dividing many branches of the

useful arts exhaustively into a reasonable number of mutually exclusive

or non-overlapping subclasses is compensated for; so that when the

classifier or the searcher has an invention to place or to find

including two or more different kinds of characteristics, for each of

which a subdivision is provided, but no subdivision for the plural

characteristics, it will be known that the invention should be in the

subclass for that characteristic which stands before the subclass for

the other characteristic.

(3) It compensates for omission of some generic titles that if written

in the indented schedule would lengthen specific titles to a cumbersome

extent.

(4) It provides a rule for cross-referencing where several inventions

are claimed bearing to each other any of the relationships indicated

above, cross-referencing being necessary in one direction only where the

matter illustrated is coextensive with the matter claimed.

(5) It definitely limits the field of search for any _unitary invention_

in any class so arranged, as no patented invention having the

limitations imposed by a unitary claim should be found in any subclass

below the subclass properly defined to receive it or those indented

under it. Parts of such inventions may be found below or following this

subclass in the same class if these parts are within the class

definition, or elsewhere in the useful arts if not within that

definition. The unitary invention may be found in the subclass limited

to it and certain subclasses arranged _above_ or _before_ it adapted to

receive organizations of which it may be a part.

A complete system of arrangement should comprise (1) a display of the

entire field of the useful arts in a manner to show the relation of the

larger as well as of the smaller groups,--carrying the appropriate

relationship as far as possible from the highest genera to the lowest

species, the arrangement being such as would bring materials most nearly

alike into closest propinquity regardless of the names they may be

called by. (2) Supplementary to this classification arrangement by ideas

there should be an alphabetical index of subclass titles, appropriately

cross indexed, and additional titles of various technical and trade

names of things classified under subclass titles.

DEFINITION.

Definition is indispensable in any classification and is very

difficult. Every class must be defined and all of the groups under it.

After definitions have been made and printed, they are sometimes found

inadequate and must be supplemented by the definitions of other classes.

This is unavoidable while the complete material remains unexplored.

Definition in the strict logical sense is not to be expected, nor is it

necessary. It is commonly sufficient if an explanation or comparison be

made sufficient to direct the mind to the character of the contents of

the group and indicate its limitations. Hitherto four of the five

predicables of ancient logic have been mentioned, to wit, genus,

species, property, and accident. In connection with definition, the

fifth predicable, difference, is useful. To define a class, it is

sufficient, generally, for the purposes of office classification, to

state a _peculiar property_ (not an accident) of the objects included in

the class; and to define a species under the class it is sufficient to

state the name of the class plus the difference--i. e., with the

addition of the limitations that characterize the species.[11] This

procedure in definition is susceptible of application from the highest

genus to the lowest species. It is advisable to define the means

included within a title without any introductory words, such as "this

subclass includes inventions relating to," etc., treating the subclass

for definition purposes as if it were a collection of concrete things,

in the same manner as in a dictionary definition.

CROSS-REFERENCES AND SEARCH-NOTES.[12]

If patents were in all respects like material objects, cross-references

and search-notes would not be necessary. Nails, screws, locks, hinges,

and boxes are distinct things susceptible of definite separation and

classification. Even though nails, screws, locks, and hinges form part

of the box, the box is still a box, not a nail, screw, hinge, or lock.

For the needs of the Patent Office classification, however, although a

patent for a box must be classified with boxes, yet if a peculiar nail,

screw, lock, or hinge is claimed in the same patent with the box, or

even if any one of these customary accessories of boxes is illustrated,

it may be necessary to provide copies of the patent for the box in each

of the several classes provided for nails, screws, locks, or hinges.

Inasmuch as every relatively complex thing is made up of relatively

simple things, it is obvious that all disclosures can not be

cross-referenced. Any attempt to calculate the number of

cross-references to be supplied if all disclosures of the subjects of

invention were to be cross-referenced would show the number to be

incalculable. It is necessary, therefore, to leave to the judgment of

the classifier the propriety of cross-referencing unclaimed disclosures.

Should a patent contain a number of claims defining a number of

differently classifiable inventions, complete cross-referencing from the

class in which the classification is made original into the other

appropriate classes or subclasses should be effected, _unless_

cross-search notes or arrangement of subclasses with appropriate titles

may be substituted to advantage.

Cross-referencing or cross-search notes are made, as a rule, from

combination class to element class, but never or very rarely from the

element class to the combination class in which it may be used. Thus

cross-referencing should normally be downward in a schedule of

subclasses. Search notes indicate parallel or otherwise related classes

and subclasses, and those classes and subclasses in which analogous

structures having different purposes but adapted to answer broad claims

may be found.

By arbitrary rules of arrangement such as have been referred to in the

section dealing with division and arrangement, a search may ordinarily

be definitely limited to a certain number of subclasses, even where

cross-references are not made. In such arrangement any given patent, _if

it be directed to one invention_, may be searched in the subclass within

which the definition places it or subclasses indented under it, and in

certain subclasses above, whose titles will indicate that the invention

might be included as a part of the matter defined to belong therein, but

it would never have to be searched in any subclass following and not

indented thereunder.

DIAGNOSIS TO DETERMINE CLASSIFICATION.

Each patent and each application discloses one or more means of the

useful arts (using the term "means" to cover both processes and

instruments in the sense in which it is used by Prof. Robinson), almost

always more than one, since most new means are combinations of

mechanical elements or acts. In some patents and applications the

disclosure is coextensive with that which is claimed; in others there is

matter disclosed but not claimed. The unclaimed disclosure may be as

valuable as the claimed disclosure for purposes of anticipation, and the

classification must provide for both. If the claimed disclosure belongs

in one class and the unclaimed in others, the classifier must choose

between two or more classes that one in which the patent or application

shall be classified and those into which it shall be cross-referenced.

_Claimed or unclaimed disclosure._--The claims of a patent are the

statutory indices of that which the applicant believes to be new, they

define an invention that has been searched by the Patent Office and no

anticipation discovered for it. Future action must be based on

inductions from past experience; none knows what the future lines of

search will be; the only guides for future searches are the searches of

the past; the evidence of past searches is the claims of patents; they

trace the course of invention. Furthermore, a presumption of novelty

attaches to the claimed matter; no such presumption attaches to the

unclaimed. The law requires every patent for improvement to show so much

of the old as is necessary to explain the uses of the improvement. In

practice much more than that is disclosed. Questions as to the proper

placing of patents and cross-references would be diminished by the

strict enforcement of Rule 36 of the Rules of Practice requiring that

the description and the drawings, as well as the claims, be confined to

the specific improvement and such parts as necessarily cooeperate with

it. In any event both the claimed disclosure and that which is unclaimed

must be taken care of, one by cross-reference, and the disclosure

selected for cross-reference is that to which no presumption of novelty

attaches.

This practice of placing patents by the claimed disclosure is sometimes

misunderstood. Its chief application is in determining classification in

case of disclosures involving a plurality of main classes. Furthermore,

the mere letter of the rule is not to be applied in preference to its

spirit. Subcombinations claimed may be placed with the combinations, and

in subordinate type subclasses patents must be placed sometimes by

claimed and sometimes by not-claimed disclosures.

_Diagnosis of pending applications._--What has been said relates to

patents. The bearing of the practice of adopting the claimed disclosure

as the basis of assignment of applications for examination has also to

be considered.

Two pending applications claiming the same means very commonly differ

in the kind and extent of disclosure. One application may disclose

several inventions. Which of the several disclosures shall be selected

as the mark by which to place the application? For instance, the typical

wire-nail machine has a wire-feeding mechanism, a shearing mechanism, an

upsetting (forging) mechanism, side-serrating mechanism, and pointing

mechanism; it may also have a counting mechanism, a packaging mechanism,

an electric motor on its frame for furnishing power; and, in addition,

numerous power-transmitting and other machine parts, such as bearings,

oil-cups, safety appliances, etc. The applicant may have made a complete

new organization of nail-machine and may seek a patent for the total

combination. He may have invented a new shearing mechanism and have

chosen to show it thus elaborately in the place of use he had in mind,

or he may have designed a new counter or a new oil-cup or a new power

transmission, or even a new motor, and have given his invention this

elaborate setting. The shears, the counter, the oil-cup, the power

transmission, and the motor are separately classifiable in widely

separated classes. How shall the application be diagnosed for

determining its place in the office classification? When the

specification and drawing disclose (as most of them do) several subjects

matter of invention, though claiming only one, which of those several

subjects matter shall control the classification?

The most natural procedure, at first thought, would be to classify on

the totality of the showing, in which case the application for the

nail-machine, supposed above, would be assigned to nail-making. But

imagine the invention claimed by an applicant to be the counter. Then

the examiner in charge of nail-making would have to search the class of

registers with which he is not familiar. Suppose applicant No. 2 files

an application for the same counter which he illustrates and describes

in connection with a bottle-filling machine, and that, classifying on

the totality of the showing, this goes to the division that has the

class of packaging liquids. Now both the examiners in charge of

bottle-filling and nail-making, knowing that counters are classified in

registers, search the class of registers and also the pending

applications in registers. After these examiners have made their

searches, suppose applicant No. 3 files an application for the same

counter, which he says may be used for counting small articles produced

by automatic machines. Perhaps he shows the counter attached to a piece

of conventional mechanism representing any manufacturing machine,

mentioning, say, a cigarette or pill or cartridge-making machine. It has

not occurred to either the the examiner of nail-making or the examiner

of bottle-filling that the other might have any such application; nor

does it occur to the examiner in charge of registers to search

nail-making or bottle-filling. As the specification of the counter

application mentions cigarette, pill, and cartridge-making machines to

which the counter may be attached, the examiner in charge of registers

may search those classes. Suppose that the counter proves to be new, and

each of the three examiners allows a patent. Here now are three patents

for the same thing. Of course, after allowance, the counter and all

other disclosed inventions that give any suggestion of novelty are

cross-referenced; but the primary purpose of a patent office

classification (to aid in determining patentability) has failed in this

instance.

In the imagined situation respecting pending applications, without doubt

diagnosis and classification upon the invention claimed is necessary to

effect the purpose of the office classification. Cross-referencing after

issue can not undo that which has been done.

If no application save that of the nail-machine be pending, no

duplication of patents occurs, but the labor of search is increased by

reason of the unfamiliarity of the examiner with the inventions he has

to search. After the patent is allowed he may find the entire

combination of the nail-machine without the counter disclosed in a

patent for a nail-making machine, so that as a nail-making machine this

new patent is of no value as a reference. Very probably all of the other

inventions illustrated (except the counter) are also old in their

respective classes; but the examiner of nail-making can not tell this

without extensive searches in those classes, so he notes

cross-references for them all.

_Difficulties due to varying ideas of claims._--Very troublesome

questions are constantly arising as to whether an invention should be

classified in a combination class or an element class. The point will be

illustrated by example: A describes and illustrates an automobile having

an internal-combustion motor and a friction-clutch in the motor

transmission-gear. He states that the clutch is in the usual

relationship to the motor and gearing, but claims a new clutch for

whatever it may be adapted. B discloses an internal-combustion motor

said to be for automobiles with transmission-gearing and a

friction-clutch and claims "in an internal-combustion motor a

friction-clutch," etc., specifying the form of the clutch. C makes the

same disclosure, but claims "an internal-combustion motor having a

specified clutch," while D, with the same disclosure, claims "the

combination with the internal-combustion engine of an automobile" of a

specified friction-clutch. E claims and illustrates only the

friction-clutch. Should these be classified together? If so, in what

class? Should a bearing composed of a specified alloy of copper, tin,

and antimony, be classed as a bearing or as an alloy? Should a house

painted with a mixture of linseed oil, lead oxid, and barium sulphate go

to buildings or coating compositions? A lamp-filament of titanium and

zirconium with electric lamps or with alloys? A building-block of

cement, lime, sand, and carborundum, with building-blocks or plastic

compositions? Whether these be diagnosed as combinations or as elements

and compositions respectively, and classified accordingly, criticism

will be aroused. The point in view is that although principles of

patentability must be considered in a classification designed as an

instrument to aid in determining patentability, convenience and accuracy

of search and avoidance of voluminous cross-referencing may necessitate

some arbitrary rule of classification to meet various and changing

theories applied to the drafting and allowance of claims.

From the foregoing it will be evident that classification involves

orderly logical processes of induction (supplemented by hypothesis), of

definition and of deduction. After gathering a large number of facts

generalizations are made from them and a hypothesis is found to be

confirmed or modified by more extended research; the divisions are then

defined; by correct diagnosis of other instances (as other patents)

deductions may be drawn respecting the appropriate place for them in the

classification.

[1] An "art," in the sense of a single unitary invention, is a synonym

of process, method, and operation. The term "art" is ambiguous in

popular usage. In the phrase "useful arts" in the Constitution, it

denotes the area of endeavor to which the patent laws apply. When the

word "art" is used to specify some fragment of the useful arts, it

commonly raises different notions in different minds. It may be

correctly used to designate _any_ division of the useful arts. It is as

proper to speak of the art of grinding or the art of molding as of the

art of metal-working or the art of brickmaking.

[2] A "use" is an application of a means to substance to produce an

effect which may or may not be the necessary effect of the means in its

normal operation. A catalytic may be used to ignite gas or to convert

oleins into stearines. An ice pick may be used to hold a chalk line or

prick holes in leather, etc.

The Classification of Patents · 第 2 / 5 段