« ПретходнаНастави »
In certain of the States of the Union, not only are fees required upon deposit of the application and issuance of the patent, but further fees in the form of annual taxes are required for the continuance of the protection given by the patent as issued, the patent lapsing if these taxes are not paid. The aggregate amount of these fees in some of the States of the Union is many times the fees required by the United States. For instance, in Great Britain, as stated in the "Tableau Comparatif," published in a recent number of “La Propriété Industrielle,” the fee pay. able on filing the complete specification of £4 sterling (say $20). This pays for the continuance in force of the patent for four years. For the fifth year a tax of £5 (say $25) is required; for the sixth year a tax of £6 (say $30), and so on, increasing £1 each year. The aggregate amount of the fees for a patent of fourteen years is thus £99, or nearly $500.
In France annual taxes of 100 francs (say $25) are required, aggre. gating for a tifteen-year patent 1,500 francs (say $300).
In Austria, under the law of January 11, 1897, the fee payable on the filing of the application is 10 floring (say $4) and the annual taxes for a fifteen-year patent aggregate over 1,900 florins (say $800).
It does not seem just that a subject or citizen of a foreign State should secure from the United States protection for his invention, trade or commercial mark for a less sum than is required of citizens of the United States for like protection by the State of which he is a subject or citizen, and it is believed that the Convention should not restrict the United States from requiring, if it shall seem best to do so, that subjects or citizens of other States should pay for the grant and continuance of protection the same fees which are required for like protection by other States from citizens of the United States.
Further, it does not seem just that a greater protection to inventions than that which is extended by the State of which the inventor is a subject or citizen, or in which he is domiciled at the time of making his invention should be extended by the United States. That, for instance, a subject or citizen of Austria (not yet, it is true, one of the contracting States) should be entitled to protection in the United States for the product of a chemical process, while in his own State he is entitled only to protection for a particular process for its manufacture and is not entitled to protection for the product, does not seem just, particularly as a citizen of the United States who has invented a product of a chemical process, for which he is entitled to protection in the United States, is not entitled to such protection in Austria as is now afforded the Austrian inventor in the United States.
So, too, with reference to Switzerland. The Swiss patent laws do not recognize as entitled to protection either a chemical process or the product of such process unless it is susceptible of being represented by à model, while the citizen of Switzerland is entitled to protection in the United States for chemical processes and products of chemical processes, as well as many other inventions which can not be represented by models.
Any State of the Union should be entitled to refuse, at its option, to subjects or citizens of another State the protection which is refused by that other State to its subjects or citizens.
For these reasons the United States Government proposes to amend article 2 by adding the following paragraphs:
Provided, That a subject or citizen of any one of the contracting States applying for a patent for invention, trade or commercial mark, or commercial name in another of the contracting States may, at the option of the latter State, be required to pay for the issuance and continuance in force of the patent applied for fees equal in amount to the fees required of a subject or citizen of the State in which the patent is applied
for, for the issuance and continuance in force of a patent for invention, trade or commercial mark, or commercial name, in the State of which the applicant is a subject or citizen.
Provided further, That an invention not the subject of a patent in the country of origin may, at the option of another State of the Union, be refused protection in that State.
Country of origin shall be considered the country of which the inventor is a subject or citizen, or in which he is domiciled at the time of the first deposit of an application for an invention.
Article 4 of the Convention is not suited to the wants of American inventors.
The amendment of section 4887 of the Revised Statutes of the United States, approved March 3, 1897, which will take effect January 1, 1898, will eliminate from our law the feature of the dependence of the United States patent on prior patents for the same invention previously taken in foreign countries. This amendment, while removing one reason for the proposition of the United States at Madrid that the period of delay should begin at the date of the issue of the United States patent, namely, that the grant of a prior foreign patent would limit the latter to the term of the former, does not obviate another difficulty which springs from our system of preliminary examination.
In our system the papers deposited with the application for a patent, and forming part thereof, are: 1. An application therefor in writing to the Commissioner of Patents; 2. “A written description of the inven. tion or discovery, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, an explanation of the principle thereof, and the best mode in which he (the inventor) has contemplated applying that principle so as to distinguish it from other inventions, and in which he (the inventor) shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery” (Revised Statutes, section 4888). 3. Drawings when the nature of the case admits of drawings” (Revised Statutes, section 4889).
Specifications and drawings are submitted to the examination of skilled persons in the Patent Office, called examiners, who often find that the inventor has improperly described or misapprehended his invention and has claimed more than he had a right to claim as new. If it is found that the invention has been known or used by others in the United States, or has been patented or described in any printed publication in any country before his invention, the application is refused and no patent thereon issued. If, however, the claims of the application are merely broader than the invention and include therein matter which is shown by the prior state of the art to be old, then the applicant may amend his specification and claims so as to limit them to his actual invention, and this being done the patent is issued upon the amended specification and claims. Such amendments are always restrictive in their nature, and the applicant is never permitted to broaden bis claim to cover an invention not within the description contained in the application as tiled. It is found from the records of the Patent Office that of the applications for patents filed since the year 1880, nearly one-third were rejected for want of patentable novelty, the remaining two-thirds were found patentable, and, in all but those in which the final fee was not paid within the time required by law, patents were issued.
By amendment of the specification and claims forming a part of the application the inventor is enabled to separate the new from the old and to claim what he has in fact invented. It is this amended application which should be the subject of refiling in the different States of the Union under article 4. But as in certain cases the examination may not be completed for a considerable period of time, and the inventor may be desirous of immediately exploiting his invention in other countries of the Union or of avoiding the risk of intermediate publication or other acts which would vitiate his patent, he should be allowed to deposit his application in the several States of the Union, with a description of his invention as filed in the country employing the preliminary examination, and afterwards to amend the same so as to make it conform to the patent issued on the first application.
In the case of an application filed in another country and afterwards in a country employing the preliminary examination under claim of priority, then the specification and claims there allowed should be taken as equivalent to the prior application for the purposes of article 4,
The United States Government therefore proposes to amend article 4 by adding the following paragraph:
The application for a patent of invention of an industrial model or design, or a trade-mark above mentioned, may be amended in the part describing or claiming the invention, model, or design, in conformity with the description and claim allowed and forming part of the patent issned in countries requiring a preliminary examination; but the description and claim shall not be construed to extend, in any State of the Union, greater protection to the invention than in the country of origin.
FIFTY-SIXTH CONGRESS, FIRST SESSION.
January 17, 1900.
Mr. Davis made the following report:
The Committee on Foreign Relations, to whom was referred the treaty between the United States and Peru, for the extradition of criminals, fugitives from justice, signed at Lima, November 28, 1899, beg leave to report the same to the Senate with the recommendation that it be advised and consented to with the following amendment:
Article II, section 6, after the word “larceny,” insert the words Provided, that the value of the property, or the amount of money, 80 embezzled or stolen is not less than $200 or 420 soles.
March 16, 1900.
(Senate Report No. 225.)
Mr. Davis, from the Committee on Foreign Relations, presented the following documents relating to the reciprocity convention with France: Message from the President of the United States, transmitting a conven
tion, signed at Washington July 24, 1899, between the United States and France, under authority of "An act to provide revenue for the Government and to encourage the industries of the United States," approved July 24, 1897.
To the Senate:
I transmit herewith, with a view to receiving the advice and consent of the Senate to its ratification, a convention sigued at Washington, on July 24, 1899, by the respective plenipotentiaries of the United States and France, under the authority conferred by section 4 of the act of Congress entitled “ An act to provide revenue for the Govern. ment and to encourage the industries of the United States," approved July 24, 1897.
WILLIAM MOKINLEY, EXECUTIVE MANSION,
Washington, December 6, 1899.
The undersigued, Secretary of State, bas the honor to lay before the President, with a view to its transmission to the Senate to receive the advice and consent of that body to its ratification, a convention, signed at Washington on July 24, 1899, by the respective plenipotentiaries