The Needed Reform of Patent Procedure in time an opinion is handed down. The cost now may be $5,000 or 850.000. Is this final? Oh, no; this merely gives the patentee, if he succeeds, the right to enjoin the infringe ment that may have continued all these years and to prove damages if he can. But can he? The equity docket in New York, as a fair average, discloses only four cases of substan tial recovery out of fifty-four cases where accordings were decreed. The case of East man v. Mayor, etc. (134 Fed. Rep. 8-H), was begun in 1877; decree for an accounting was ordered in 1891; accounting was completed and judgment for $818,074.32 was ordered in 1897. In l904—twenty-seven years after he began his suit and seven years after he had been awarded an enormous fortune—the patentee was finally defeated and mulcted with costs. Nor is it the patentee alone who sufl'ers. Six patents were the foundation of a successful hay-press industry (127 Fed. Rep. 363). After much hard fighting, the com pany had four of its patents held valid and infringed at the hands of an appellate court. Within a year, on rehearing, this court re versed itself and held all of the patents void but one. It took seven years to complete that accounting, and, owing to the fact that five sixths of the patents had been held void, the company was unable to segregate the dam ages attributable to the single patent still good, and the result was six cents damages and half the costs. The case of Tuttle v. Claflin (76 Fed. Rep. 227) was in the courts eighteen years, survived two masters, was nine years in the accounting and finally ended in a lump-sum award by the appellate court. . . . "Bad as this is, it is far from the worst.
In 1891 the United States Circuit Courts of Appeals were established—one in each of the nine circuits-and these courts were given final appellate jurisdiction of patent causes. A decision of any one of these nine Circuit Courts of Appeals is final in a patent cause for that particular patent on the particular facts presented in that particular circuit, but it is not a final adjudication upon that potent as to any other circuit. While there is supposed to be comity between appellate courts, as a matter of fact there is none. The rubber tire case (Consolidated v. Diamond, 157 Fed.
409
Rep. 677) and the bottle-stopper case settle that question." The remedy which the author proposes for these abuses in patent procedure is to be found, first, in the establishment of a Patent
Court for hearing patent causes in the first instance. “It should consist of nine judges, one in each of the nine circuits, whose duty it should be to hear, try and determine such
causes, having the evidence adduced before them subject to ruling and exception, after the manner of state courts of equity. The pres ent system of taking testimony hither and yon before notaries should be abolished. In cases where witnesses are remote, oom rnission should issue to the patent judge of the circuit wherein the witness resides; but such commission should issue only upon proof of the materiality of the evidence sought and in no case for the taking of expert testimony. Moreover, the present practice of adducing endless expert evidence should be stopped. Ordinarily one expert on each side is enough. "Interference cases should be sent to the patent judge of the circuit most centrally located with reference to the evidence to be adduced and then and there decided in the same manner as a patent cause, but with additional safeguard that such trial shall be held behind closed doors to prevent dis closure of unpatented inventions. "The next step is the establishment at
Washington of a Court of Patent Appeals. To this one central court every appeal from every patent judge should be taken and that court should be given final appellate juris diction. It should be composed of five judges, all of them trained in the patent law. The method of appeal should be by case and exceptions; the record made by counsel and settled before the patent judge who heard the case, to the end that the present enor mous cost of printing may be reduced and that the appellate court may not be burdened with a padded and cumbersome record. “Such a change in no wise disturbs the great body of case law relating to patents. It is a change of jurisdiction, but not of system. The great body of rules, both in law and in equity, would remain in force, with the excep
tion that the present conflict and chaos of law and rule would be eliminated entirely."
