The History of Patent Examiners Is Fascinating. No, Really, It’s Fascinating.

The making of America.
May 7 2014 10:03 AM

The Surprisingly Engrossing History of Patent Examiners

In the 19th century, they were celebrities!

(Continued from Page 1)

From the outset, considering each invention against the prior sum of knowledge to decide what is truly new and not obvious was virtually impossible. Ruggles envisioned that examiners would have “a general knowledge of the arts, manufactures, and the mechanisms used in every branch of business” as well as of the scientific and technical principles behind each existing U.S. and European patent. By 1836, there were already about 40,000 patents.

Keller, a self-educated man, had gotten the job due to his experience with the old system. As Congress gradually authorized more examiners to deal with the ever-growing volume of applications, examiner jobs were hotly sought after by the scientific elite. There were not many men (and almost no women) with scientific training in the early-19th-century United States, but there were even fewer scientific positions. Noted antebellum scientists, like Charles Grafton Page, a chemist and expert in electromagnetism, and Titian Ramsay Peale, a naturalist, were grateful to find well-paid work as examiners.

Page, Peale, and their colleagues quickly found themselves in the hot seat. Their job was to avoid issuing invalid patents, and in the 1840s, they were rejecting more than 50 percent of applications. Rejection made inventors unhappy. Many were unwilling to believe that their idea, while new to them, was not new, or was too obvious. Examiners received the blame. As historian Robert C. Post has noted, Scientific American and the New York Times fulminated against “conceited, crabbed, mulish” examiners who denied the hardworking inventor the anticipated gold from his idea. Rejected would-be patentees argued that these “scientific men” relied on “what they have read in books” and lacked practical experience.

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One examiner in 1850 was nicknamed “the guillotine,” having seemingly never met an application he could not reject. Inventors who closely watched applications saw the process as unpredictable and unfair—they thought that it depended on the state of mind of the four examiners, which seemed to shift from week to week. In 1850, Scientific American called for one of the four—W.P.N. Fitzgerald, who trained both as a lawyer and in mathematics and natural philosophy at West Point—to be fired. The publication said that it would prefer a “simple headed” man to one who had no common feeling with inventors. In 1852, Fitzgerald and three other examiners, all under attack in the press, resigned.

For the next century, patent officials sought to make examination less impossible and controversial by adjusting hiring procedures and rejection rates. In the 1850s, Secretary of the Interior Robert McClelland, who held authority over the patent office, pushed a solution that neatly fit his own goals. In place of the best-trained scientific minds as examiners, he sought to hire political supporters, a common and legal approach in the 19th-century civil service. By the end of the decade, these less-scientific examiners were granting two-thirds of applications. The patent commissioner in 1858 urged examiners to welcome “the inventor as a friend” and fired those who were too “unsympathizing” when considering applications.

Patent commissioners resented political meddling in their hiring and used a different approach to hire examiners who would spark less inventor resentment yet have relevant skills. In 1869 the patent office became one of the first federal offices to use written examinations to screen potential hires, seeking to replace reliance on elite credentials and scientific reputation with standardized proof of “general knowledge.” These hires rejected a little more than one-quarter of patent applications, and the commissioner boasted that Americans were saved from the inefficiency of “worthless patents,” and could instead invest thousands of dollars “with scarcely a reading” of a patent, knowing it to be valid.  The New York Times, too, now praised patent examination as the chief virtue of the U.S. system.

Administrator efforts to keep rejection rates at a Goldilocks level—neither too high nor too low—also included the beginning of what grew into the massive MPEP. In 1879, the patent commissioner detailed the 57 steps the office took to process applications, demonstrating to the public that his systematically selected examiners followed known procedures, rather than whim and custom. But it was only in 1949 that the MPEP was finally published.*

Patent examiners are no longer discussed by name in the popular press. But there is still intense interest in grant rates. Americans remain hopeful that the patent office will spin their ideas into golden intellectual property—and remain disgusted by worthless patents. When we argue about whether our patent system is broken, we are arguing about whether the examiners are succeeding well enough at their impossible, magical task, or whether it is time to try another way of “promoting the progress of science and the useful arts.”

*Correction, May 9, 2014: This article originally misstated that the Manual of Patent Examining Procedure was published in 1945. It was published in 1949.

Kara W. Swanson, author of Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America, is an associate professor of law at Northeastern University.

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