HOW TO PATENT YOUR INVENTION
With your model in such shape that it shows what your invention is and
what it will do you are ready to apply for a _patent_, or _letters
patent_ as it is technically called, by those versed in the art.
~What a Patent Is.--~The term _letters patent_ comes from the Latin
_litteræ patentes_ which means open or disclosed, as against the French
_lettre de cachet_ which means closed or secret.
A letters patent, or patent as it is called for short, is exactly what
its name implies and that is a disclosure of your secret and for this
disclosure of a new and useful invention on your part the government
agrees to give you a _monopoly_, that is the sole right to make, use
and sell it as you please for a term of 17 years.
But the government does not live up to its agreement with the inventor
and the invention and patent for it are never securely yours until it
has been tested in the United States Supreme Court and its judges have
handed down their opinion in your favor. But since there is no better
protection than a patent at the present time of course you will have to
get one.
~Choosing a Patent Attorney.--~The next hardest thing to do after
making a working model of your invention is to get a _patent attorney_
to take out a patent for you.
I don’t want to infer by this that it is hard to find a patent attorney
for on the contrary they are as numerous as sharks in the sea and
twice as voracious, but a patent attorney who really understands his
business and will take an interest in your affairs is as scarce as a
_pseudotriakis microdon_,[3] unless you are backed by unlimited funds,
and then you _may_ get service.
It is a strange thing but just as soon as you begin to work on an
invention you will see in every weekly paper and magazine you pick up
the advertisements of patent attorneys and usually they are located in
Washington “in a building across the street from the patent office” or
in a building up the street from which the patent office can be seen.
Their _ads_ are very alluring as they often offer as an inducement to
make a _free search_, as explained in Chapter III; to keep your signed
_evidence of conception_ in their fire-proof safes, and to refund your
money if they do not get a patent for you. That these knights of the
patent bar will do all they say there is not the slightest doubt and
that is just where the rub comes in.
Any patent attorney can get a patent allowed on nearly anything if the
claims are written _narrow_ enough but when it is granted it won’t be
worth the paper it is written on and the patent examiner knows it, the
patent attorney who gets it knows it and you will know it too after you
have spent your good money for it but then it is too late. A patent
attorney of this kind is a good one to keep away from.
The safest way is to go to a patent attorney in your own city or get
into communication with one who lives nearest to you and engage him to
prepare your patent application and _prosecute_ it in the patent office.
And whatever you do make him agree to a _flat-rate_, that is to name a
fixed sum which you are to pay him for his services including the fee
for filing the application in the patent office. The _filing fee_ is
$15 and the lowest fee I ever heard of any patent attorney taking to
prepare a case and seeing it through the patent office was $30, which
with the final government fee of $20 makes a total of $65; and from
this his fee will go on up to whatever amount he thinks he will be able
to get you to pay.
Should you happen to secure the services of a so-called really
high-grade patent attorney you will not be likely to induce him to
make a flat-rate for this is poor business on his part. Instead the
way a better class patent attorney will deal with you, as a rule, is
to induce you to start in by giving him a _retainer_ of say $25 or
$50; then from time to time he will send you statements and as you pay
them the amounts he demands will grow larger and the statements more
frequent until by the time the patent is granted, you will have paid
in enough to buy him a fur-trimmed overcoat or a Ford automobile.
The amount thus spent is not of so much consequence but what does
matter is that where you and your patent attorney have no definite
arrangement as to fees he is tempted, and in many cases yields to the
temptation, to string the patent application along over a period of
months if not of years, when if it had been followed up right along it
would have been granted to you in a much shorter time.
The moral of this un-fable is to hold your patent attorney down to a
fixed price right in the beginning and have him write you a letter
stating the amount he is to get and the work he intends to do for it,
and this will serve as an agreement.
The above are only a few of the bubbles in the patent system and to
warn you of them all would take a book as large as an unabridged
dictionary. The best advice I can give you is to study your invention
from every angle, look up the state of the art in all its phases and
then with a full understanding of just what you are entitled to write
down all the points you want your patent to cover.
Now catch your patent attorney, being sure he does not catch you first,
and to _parodize_ a _caption_[4] of the immortal Roosevelt, _fear the
patent office examiner and take your medicine_.
~Applying for a Patent Yourself.--~To get even a small part of what
you are _legally_ entitled to in a patent you should write to the
_Commissioner of Patents_, Washington, D. C., for a copy of the _Rules
of Practice in the United States Patent Office_, see Fig. 77, which
will be sent to you free of charge. Read this booklet through not
once, but many times, or at least until you understand everything in
it for it will help you mightily in the preparation of your _patent
application_ and the prosecution of it.
[Illustration: FIG. 77. RULES OF PRACTICE OF THE PATENT OFFICE]
You will learn from the _Rules of Practice_ that you as an inventor
may apply for your own patent and act as your own patent attorney in
prosecuting it. And after you have learned the _rules_ by heart you may
feel that since you know more about your invention than any one else
you can make the drawings and write the specification and claims as
well or better than the average patent attorney.
But you should think twice and count ten with your eyes shut before
you conclude to do this rash thing. Why? Because the patent office
will not accept your _drawings_ unless they conform exactly to certain
rules; your _specification_, which means the description of your
invention, must be written in a certain way, and the _claims_, which
are the very vitals of the whole patent, must be drawn with exceeding
care for while nothing of value must be left out it is even worse to
write in too much as this limits your claims.
Besides these reasons it grieves a patent office examiner whenever a
mere inventor comes forth and files his own patent application and
conducts his own case even if he has the ability to do so and when it
comes to _amending_ his claims he will find the hurdles are rather
higher to jump over than he at first supposed.
~Applying for a Patent through a Patent Attorney.--~Taking all these
things into consideration my advice to you is to retain a patent
attorney to prepare your case and see it through the patent office, and
then you want to be prepared to watch every move he makes--that is to
say when he has drafted your application, get a copy of it and go all
over it yourself taking plenty of time to do it in; and then go over it
with him covering every detail.
In due time after your application has been filed the patent examiner
will send a _letter_ to your patent attorney in which he notifies you
that some, if not all of your claims, have been _rejected_ and _citing
references_ to other patents chiefly to show that your claims lack
newness and novelty.
The next step is taken by your patent attorney who _amends_ the
specification and claims to meet the objections raised by the patent
examiner. Here again you should know how and where your claims are
affected and you should aid your patent attorney to determine whether
or not you should insist on your claim being allowed to stand as it is
written or to so change it that it will satisfy the patent examiner.
It must be clear now that if your patent attorney is permitted to keep
on changing your claims to meet every rejection of the patent examiner
instead of fighting them out by the time the patent is granted it will
have degenerated into merely a scrap of paper. Hence if you leave the
whole case to the ability and judgment of your patent attorney you can
be reasonably sure that your $65 or $250 or whatever sum you have paid
him for obtaining your patent is as good as thrown away.
~What You May Patent.--~In all of the foregoing text I assumed that
your invention consisted of a machine but according to rule 24 of the
_Rules of Practice_ a patent may be obtained for _any new and useful
art, machine, manufacture or composition of matter, or any new or
useful improvement thereof_.
Since all mechanical movements have been invented and all necessary
electric currents have been discovered and enough chemical elements
are known it may seem on first thought quite impossible to invent
or discover anything either new or useful, yet the patent office is
granting patents at the rate of about 125,000 a year.
The way inventions are made is by forming new _combinations_. Just as
there is no practical limit to the number of new words that could be
formed by new combinations of the letters of the alphabet, so there
is no practical limit to the new machines that can be invented by
novel combinations of the mechanical movements, with the result that
something can be done that had not been done before, or that something
is done in a better, cheaper and easier way than it had ever been done
before. And the same is also true of combining electro-mechanical
devices and of combining chemical elements.
Inventing means that you are clever in combining certain movements,
devices and chemicals in a new way to produce a certain result
which may or may not have been done before, and so it is the new
_combination_ of things that you really get a patent on.
~Looking Ahead.--~It must be plain now from what has been said that
when you have completed your machine, or product, or compound, all your
inventive efforts will be in vain unless you go over every part with
the utmost care and try to think out how it could be changed or done in
some other way by some one else and so make your patent worthless, and
your hard efforts wasted.
What you should do, though it is easier to advise than it is to
accomplish, is to so word the claims of your patent application that
they will broadly cover not only your particular combination but every
other form of it. Finally should your invention be one of considerable
magnitude and great importance you must keep working on it all the
time and making improvements and covering the last named with patents
or the other fellow--the patent thief--will get you sure, and often he
will do it anyway.
~What a Patent Consists Of.--~All through this chapter the words
_drawings_, _specifications_ and _claims_ are used and now suppose we
find out just what is meant by them.
Every patent application is made up of five parts and these are (1)
the _petition_; (2) the _drawings_; (3) the _specification_; (4) the
_claims_, and (5) the _oath_. The petition and the oath are separate
papers and do not appear in the patent when it is granted. The
drawings, specification and claims form the patent when it is granted.
_The form of petition_ by a sole inventor is as follows:
_To the Commissioner of Patents:_
Your petitioner, ..............., a citizen of the United States and
a resident of ......, in the county of ...... and State of ......
(or subject, etc.), whose post-office address is ........, prays
that letters patent may be granted to him for the improvement in
............, set forth in the annexed specification.
Signed at ........., in the county of ....... and State of ......,
this .... day of ......, 19..
Other forms by joint inventors, etc., will be found in the _Rules of
Practice_.
[Illustration: FIG. 78. A PAGE OF DRAWINGS FOR A WIRELESS TELEPHONE ARC]
_The drawing_ or drawings come first and these are made on white paper
the thickness of Bristol board and the size of the sheet must be
exactly 10 by 15 inches with a line drawn 1 inch from the edges all
round making the _sight_, that is, the space in which the drawings are
placed, exactly 8 by 13 inches. A reduction of a sheet of drawing for
the author’s _revolving arc_ for his wireless telephone is shown in
Fig. 78.
The drawing or drawings, there may be one or more on a page and several
pages if needs be, must show every detail covered by the specification
and claims. The drawings may be made in _isometric perspective_ as
described in Chapter II, or plan or elevation views can be used, or
both of these kinds of drawings as long as the pictures show exactly
what the invention consists of and how it works. Usually the different
parts are numbered and these are referred to in the description of the
invention.
Should your invention be an electrical one, then a diagram of the
apparatus formed of symbols (see Chapter II) should be used.
The _specification_, the front page of one of which is shown in
Fig. 79, is that part of a patent which describes your invention or
discovery and it should be as full and as clear as you and your patent
attorney can make it and yet it must be concise and to the point.
Don’t try to hide, or keep anything back for should the patent be
granted to you under these conditions it will be without value if it
should ever figure in a suit. If you are not willing to make every
detail known it is better not to apply for a patent at all.
[Illustration: FIG. 79. SPECIFICATION OF ONE OF MR. COLLINS’ PATENTS]
[Illustration: FIG. 80. THE CLAIMS OF THE SAME PATENT]
The _claims_, a few of which shown in Fig. 80, are the all important
part of every patent and these must be clearly, cleverly and carefully
worded so that if you ever have to fight an infringer in court your
claims will be found to cover exactly the details of your invention and
this will make it harder for the other fellow’s expert to misconstrue
them.
_The oath._ When you apply for a patent you must affirm, or make oath
that you believe yourself to be the “first and original inventor
or discoverer of the art, machine, manufacture, composition or
improvement” for which you ask a patent. A form of oath to accompany a
patent application is as follows:
............ ............}
............ ............}_ss_:
........ ........, the above-named petitioner..., being sworn (or
affirmed), depose ... and says ... that .......... citizen ... of
....... and resident ... of ......, that .... verily believe ......
....... to be the original, first and ...... inventor ... of the
improvement in .......... described and claimed in the annexed
specification; that ........ do ... not know and do ... not believe
that the same was ever known or used before ..... invention or
discovery thereof, or patented or described in any printed publication
in any country before ...... invention or discovery thereof, or
more than two years prior to this application, or in public use or
on sale in the United States for more than two years prior to this
application; that said invention has not been patented in any country
foreign to the United States on an application filed by ........
or ...... legal representatives or assigns more than twelve months
prior to this application; and that no application for patent on
said improvement has been filed by ...... or ...... representatives
or assigns in any country foreign to the United States, except as
follows: ...........
Inventor’s full name: {................ ................
{................ ................
Sworn to and subscribed before me this ................ day of ......,
19..
[SEAL.]
................ ................
[Signature of justice or notary.]
................ ................
[Official character.]
A good way to get an idea of how a patent looks and reads is to send 5
cents in coin to the Commissioner of Patents, Washington, D. C., with
the request that a copy of patent No. 814,942 be mailed to you.
~While Your Patent is Pending.--~In a month or six weeks after your
application has been sent in to the patent office your patent attorney
will receive an official reply, or _action_ as it is called, and don’t
be surprised and don’t let it worry you if you find that all your
claims have been rejected by the examiner.
He will state his reasons in his letter for the rejection and give
references, which are usually other patents, to show that some other
inventor has _anticipated_ you and that your claims are neither new nor
novel.
Your patent attorney must then either _amend_ the claims, that is
reword and change them if you and he think the examiner is right, or
else in your letter of amendment, you must show the examiner where and
why he is wrong. At any rate you must satisfy his objections.
By the time your amended application reaches the examiner and he
again acts on it he will have dug up a lot more of references from the
_archives_ of the patent office; and then you and your patent attorney
can go all over the amending process again.
After having gone through with this sort of thing a dozen or more times
and covering one or more years--I have just had a patent allowed that
had been pending for nearly seven years--you and your patent attorney
and every one else that may be interested with you will be sore unto
death over the delays--that is everybody except the patent examiner and
he thrives upon the inventor’s discontent.
~Interference.--~As if all these trials and tribulations are not enough
it often occurs in the course of a pending patent that some one applies
for a patent on the same, or nearly the same, invention as your own.
When this happens the patent examiner declares an _interference_, the
purpose of which purports to be to show which applicant is the first,
or real inventor.
When interference proceedings are begun you will have to make under
oath a _preliminary statement_ showing when you first conceived the
idea of your invention, when you first explained it to some one else,
when you made your first drawings of it and when you constructed a
model of it; all of which shows the importance of keeping a record of
each step of your invention and of having them frequently attested.
These sworn statements by yourself and your opponent are passed upon
by the _examiner of interferences_ and if either you or your opponent
are not satisfied with his findings either one of you may take an
appeal to the _board of examiners-in-chief_, and from this board to the
_Commissioner of Patents_ and finally, to the _Court of Appeals of the
District of Columbia_.
And don’t forget that all these proceedings and appeals are as meat
and drink to the patent lawyers and that you and your opponent are
contributing _all_ of the money in exchange for a lot of red tape that
ought to be abolished.
~When Your Patent is Granted.--~But some bright morning you will
receive a government document printed on vellum, showing a picture of
the patent office at the top and signed by the Commissioner of Patents
at the bottom, the whole being tied together with a pair of baby blue
ribbons and to the ends of which is affixed a red seal bearing the
imprint of the _Patent Office of the United States of America_, and at
last you have your patent. The front cover of a patent granted to your
humble servant is shown in the frontispiece.
~After Your Patent is Granted.--~But after you have this valuable
grant conferred by the government in your possession which is alleged
to give you a monopoly on your invention for a period of 17 years you
have only started on your career as _patentee_, for about the next
thing that will happen, if your invention is worth anything and you are
manufacturing and marketing it, you will find that some one else is
making and selling exactly the same thing.
He may or may not have a patent on the article or machine and it--the
patent--may or may not be remotely like yours but this doesn’t in
the least matter, he will keep right on working your invention and
_infringing_ your patent until you will either have to sue him, or
continue to lose large profits that should be yours and perhaps be
driven out of the business entirely.
So, of course, you see your patent attorney and he, of course, advises
you to begin suit at once. It sounds to your abused ears like right and
justice but it means an outlay of much time and more money than you
could begin to think of unless you have been through the mill before.
This time you will have to engage _patent counsel_--no mere patent
attorney will do if you are to win--and you must have _experts_ to
testify for you and your _patent cause_--it is no longer called a
patent case--and testify against your opponent. The only limit to
the fee that able patent counsel will demand and collect is fixed by
your bank account while $100 per day is the usual fee of a _technical
expert_ though like his legal ally he will ask and get much more if you
can afford it.
After long months of drawn out preparation and taking testimony and
quibbling you will find, if your legal talent is the smartest, that
the patent granted you by the patent office has been sustained by the
court. Such a decision may put the other fellow out of the business but
it isn’t once in a thousand causes you can collect damages when you
win. And from this you will observe that the business of the patent
office is not to give you a monopoly but simply to grant you a patent
and as to its validity the courts must settle that.
[Illustration: FIG. 82. THE UNITED STATES PATENT OFFICE, WASHINGTON, D.
C.]
~About Paper Patents.--~A _paper patent_ is a patent that has been
granted by the patent office for a new and novel idea that has never
been worked out in practice.
For instance, suppose you get an idea for an invention or an
improvement that seems a good thing especially after you have looked
up the state of the art, and when you draw it out on paper it seems
certain to work. And let’s suppose that for the want of time or money
you are not able to experiment on, or build a model of it; and you have
fears that by the time you could build the actual machine some one else
may have applied for a patent on the same thing.
Of course, you feel you want to protect the idea and to do so you
proceed to apply for a patent and in its own good time the patent
office grants you one. You have then a thing called a _paper patent_
but you haven’t got the machine, or device or composition to back it up
with.
Well, it’s just like writing a book about a trip to the moon; you know
how far from the facts your guesses would probably be and it is the
same thing with getting a patent before you have made the experiments
or built a model.
A paper patent is not usually worth the time and money you spend on it
because it lacks backbone, but they have caused many real inventors a
deal of trouble and expense in fighting them.