I once silenced a seatmate on a transatlantic flight who threatened to be overly chatty by (truthfully) telling him that I was traveling to London to speak about the history of the patent examiner. Horrified I might tell him about it, he quickly returned to his own, apparently more interesting reading.
One glance at the Manual of Patent Examining Procedure, a government publication more than 3,000 pages long, would seem to justify his suspicion that patent examination is dry as dust. The manual, familiarly known as the MPEP, provides instructions to the employees who review patent applications as well as guidance to inventors seeking patents. The MPEP is dull reading. Its dullness, however, hides the nearly magical task of the patent examiner. It also papers over decades of lively controversy about how patent examination should occur, if at all.
Application review in patent-speak is “examination,” and those who conduct it are “examiners.” Examination is the chief task of the patent division of the U.S. Patent and Trademark Office, which currently employs about 8,000 patent examiners.
Examiners decide which ideas are useful, new, and clever enough to be patentable. If a patent application is granted, the idea becomes intellectual property. It is no longer freely available to anyone who happens to think of it but is the exclusive property of the patent owner, at least for a period of time (currently 20 years from the application filing date). Since 1790, the dream of American inventors has been that the patent system will spin the rough straw of their ideas into gold.
The first U.S. Congress began the federal patent system but saw no need for a patent office. The Patent Act of 1790 required the secretary of state, the secretary of war, and the attorney general to consider each application. (If this act were still in force, John Kerry, Chuck Hagel, and Eric Holder would have read more than 500,000 applications in 2013). These men decided whether each invention was new and also “sufficiently useful and important” to justify the gold of an exclusive grant. Thomas Jefferson is sometimes called the first patent examiner because Jefferson, then secretary of state and an inventor himself, took a leading role in considering patent applications. As described by Jefferson biographer Dumas Malone, in March 1791, Jefferson set aside his worries about relations with Europe in order to welcome scientific luminaries to his office. The men gathered to watch Jacob Isaacs demonstrate his device to turn seawater into fresh water. The device did not work, and Isaacs, like more than two-thirds of those whose applications were considered by this elite group, did not receive a patent.
It soon became apparent that the secretary of state lacked sufficient time to consider patent applications. With Jefferson’s encouragement, Congress revamped the patent system in 1793, making it more like the British system, although according to Edward Walterscheid, about one-fifth the cost, even factoring in the need to prepare drawings and models. Any inventors who filed the necessary paperwork with the State Department, swore their invention was new, and paid $30 could receive a patent. Applications were simply registered rather than examined.
For the next 40 years, getting a U.S. patent was quick and cheap. The catch was that despite the inventor’s oath, many issued patents did not describe a new and useful idea, either through ignorance or fraud, and were therefore invalid. The only way to identify valid patents was a court case. Examination by litigation was time-consuming and expensive.
The examiner was inserted into the patent system to chart a middle ground between granting patents only to those able to satisfy the secretary of state that an invention was sufficiently important and handing them out to all comers. In 1836, Sen. John Ruggles of Maine, an inventor who visited the State Department to learn about patent applications soon after he arrived in Washington, D.C., sponsored an act that created a patent office and the position of examiner. The examiner, relying on his knowledge and the patent office library, would consider whether each invention was new, useful, and more than just an obvious improvement over existing inventions. Charles Keller, whose long career working with patent applications before the new law passed is described by historian Kenneth Dobyns, was appointed the first full-time patent examiner, and granted Ruggles patent No. 1 for a steam engine.
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