A. Frederick Collins

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.

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:

Other forms by joint inventors, etc., will be found in the Rules of Practice.

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.

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:

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.

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.