Office of the Historian

No. 30.
Mr. Jay to Mr. Fish.

American Legation,
Vienna, March 22, 1872. (Received April 11.)
No. 422.]

Sir: I referred in my No. 418, dated March 9, to the request which the Count Andrassy had made to me, to advise him of the points in which the patent-laws of Austria were regarded as insufficient by American inventors; and I now append a copy of the informal note which I have since addressed to him on that subject.

I am, &c,

JOHN JAY.
[Inclosure.]

Copy of Mr. Jay’s note to the imperial and royal minister for foreign affairs.

American Legation,
Vienna, March 17, 1872.

Dear Count Andrassy: I was about writing to your excellency, in accordance with your request, to indicate some of the points in the practical application of the patent-laws of this empire, which have been alluded to as affording insufficient protection to American inventors, when I was favored by the Baron de Gagera with a copy of the dispatch on this subject, dated 11th March instant, addressed by you to the imperial and royal envoy at Washington, the Baron de Lederer.

I have read that dispatch with attention, and very highly appreciate the prompt desire which it exhibits on the part of the imperial and royal ministry of commerce to answer the objections which had been advanced by the Scientific American, and to [Page 51] make known to American inventors and manufacturers, who might propose to assist at the World’s Exposition, the disposition of the imperial and royal government to afford them every protection possible under its existing laws, or, perhaps, by a new statute to be ordained for the occasion.

If a difference of opinion shall still exist in regard to the sufficiency of that protection, it may perhaps naturally arise from the somewhat different policy which has been gradually adopted in the United States, in regard to patents, from that which seems to have inspired the legislation of Europe. The objection that the foreign patentee is required by the Austrian law to commence the manufacture of the patented article in Austria within one year, is frankly met in the note to the Baron Lederer, with an admission that such a limitation may often prove a hardship, and with the declaration that a request for a prolongation of the periods has never been refused. But the note lays stress on the importance of the provisions which requires the article to be manufactured in this country, as affording to domestic industry the earnings to be derived from the manufacture; and in support of this policy reference is made to a similar provision in the laws of Germany and of France, making the importation of patented objects manufactured abroad a ground for the extinguishment of the patent.

A somewhat different policy has been gradually adopted by the American Government, as may be seen from the copy of their latest act, which I have the honor herewith to inclose to your excellency, passed July 8, 1870, to revise, consolidate, and amend the former statutes, some twenty-five in number.

It has been suggested that the differences in the statutes of different countries, in regard to patents, may be generally traced to a difference in the general view taken of the character and position of the patentee; whether he is looked upon as a monopolist who owes all his rights to exceptional law, and who must be jealously watched and severely restricted; or whether he is regarded as a public benefactor, who is to be tenderly and kindly treated.

The legislation of Congress has inclined more and more to the latter view; and, while adopting, as the true principle, that the inventor and public are both to be treated nationally justly and impartially, its tendency has been to give more and more liberally encouragement and assistance to useful inventors.

Your excellency remarked, in our recent conversation, that you had had occasion, some time since, to refer to the example of America as exhibiting the wisdom of ample protection to inventors; and a brief reference to the statistics of the Patent-Office at Washington will exhibit the justness of your excellency’s observation.

From 1840 to 1849 the average number of patents yearly issued was 550
During the next seven years the yearly average was 1,750
In 1858 the patents issued were 3,710
In 1859 the patents issued were 4,538
In 1869 the patents issued were 13,762
In 1870 the patents issued were 13,622
patents extended 1,010
14,632

The Patent Office, which is a branch of the Interior Department, has thus become a most important institution, demanding the best skill in its various branches. The litigation occasioned by rival claims is giving birth to a series of decisions, which constitute a code of patent-law, and the most doubtful and difficult questions are being gradually defined with judicial exactness.

While the fees which may be found in section 68 of the accompanying law are moderate, the total revenue is large, and for the year 1869 was $686,000, being $213,000 in excess of the expenditures. Of the addition which has been made to the industrial wealth of the country through the medium of the Patent-Office, I have never seen an estimate, but it may be counted, as your excellency is aware, by hundreds of millions.

A glance at the American statute will show how carefully restrictions are avoided in regard to the time and place of manufacturing the article patented, which, in view of the condition of many of the inventors, would virtually deprive them of all protection. By the Patent Report for 1870, it appears that, in addition to the 14,000 patents issued, there were 1,089 patents allowed, but not issued by reason of the non-payment of the final fees, and it is not difficult to see that, in the case of workingmen in American factories—to whom some of the most valuable inventions have been due—they would frequently find it quite impossible to secure a patent in Austria-Hungary, if compelled within a certain time to manufacture the article within the empire. It may perhaps occur to the honorable ministry of commerce that if the United States, with a rate of wages far higher than is known in Europe, can safely dispense with such a condition, trusting to general causes and not to a particular restriction for the promotion of domestic industry, results equally happy might be reasonably expected where a lower rate of wages afforded a direct incentive to home manufactures.

Your excellency is aware from our conversation that I have no instructions from my [Page 52] Government upon this subject, and that the few observations which I now venture to offer are simply in response to your excellency’s remarks that you would be glad to be advised of the objections which had been made by American inventors to certain provisions in the patent-laws of the empire which might, perhaps, lessen their eagerness to bring their manufactures to the World’s Exhibition at Vienna.

But a friendly interest is felt by the Government of the United States in that exhibition, an interest to which your excellency alluded in your note of the 7th of January, (45/H. P.) as having been communicated through the Baron Lederer, and in regard to which, I am informed by the Honorable Mr. Secretary Fish, that the President has recommended the subject to the attention of Congress, and that it is favorably regarded by that body.

I have, therefore, no hesitation in frankly assuring your excellency that, if upon an examination of the patent-code of the United States, the imperial and royal government should feel disposed, as I understood your excellency to intimate might perhaps be the case, to modify in accordance with its policy some of the provisions of the existing imperial and royal code which are thought to bear hardly upon American inventors, and to base the protection of inventors in either country upon the same broad and simple principle of equal reciprocity which characterizes the convention on trade-marks, I will with pleasure recommend the subject to the favorable consideration of my Government, in the belief that the President will cordially embrace this opportunity of cementing the friendship of the two countries and of advancing their common interests by a generous and harmonious policy.

I pray you, sir, to accept the assurances, &c.,

JOHN JAY.