Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part I

No. 39.
Mr. Jay to Mr. Fish.

American Legation,
Vienna, August 21, 1872. (Received September 10.)

No. 458.]

Sir: I herewith append a translation of a law or order in council? recently promulgated by this government for the temporary protection of the rights of exhibitors at the Universal Exposition from the infringement of their inventions. The protection given is similar to that in the law of patents, and extends to the 31st December, 1873.

I append also a translation of a paper promulgated with the law, being an exposition of the motives which have led to its adoption, from which it would appear that a chief impelling motive was afforded by an article on the subject published in the Scientific American, a journal published at New York, on the 23d December, 1871.

It has been suggested to me that while the new order may afford protection of American exhibitors up to the 31st December, 1873, they will still be exposed to a loss of their future rights, unless they take out Austrian patents before that date, and that this, in the case of all American exhibitors who availed themselves of it, would involve time, trouble, and expense, and that, as in many cases the inventors and manufacturers would not themselves accompany their goods, it would be for some almost an impossibility.

It has been further suggested to me that the difficulties and expenses of securing Austrian patents by American inventors might be greatly lessened by mutual treaty stipulations, and that no more favorable moment could be found than the present for anticipating, on the part of the imperial and royal government, the favorable consideration of any plan for this purpose which might be presented by the Government at Washington.

I would therefore respectfully suggest, should it meet the approval of the Department, that the law and the accompanying paper be referred to the Commissioner of Patents for his opinion. I have understood that Mr. Commissioner Leggett has already given the matter of foreign patents to American inventors a good deal of attention, and has expressed the view that both congressional legislation and diplomatic conventions are essential to protect abroad the American interests.

If Mr. Leggett, with your approval, should draught a convention, the shorter and simpler the better for accomplishing this object, and I should be empowered to negotiate upon its basis, with such discretion as you might think proper to give, I am under the impression that the ministry would be inclined to listen favorably to any fair scheme based upon equal reciprocity, and that the strong and apparently universal desire now felt here that the United States shall be fitly represented at the Universal Exposition, will afford an additional and strong motive for expediting the conclusion of such a treaty.

I have, &c,

JOHN JAY.

[Inclosure 1.]

Law upon the temporary protection of objects arriving at the Universal Exposition, of the year 1873, in Vienna, for the purpose of exhibition.

With the consent of both Houses of the Reichsrath, I find it expedient to order as follows:

• Article I. Every native or foreigner who exhibits at the Universal Exposition of the year 1873, in Vienna, an object which, in accordance with the enactments of the law of the 15th August, 1852, (R. G. Bl., No. 184,) also of the two laws of the 7th December, 1858, (R. G. BL, Nos. 230 and 237,) is appropriate for acquiring patent, mark, or pattern protection, can obtain from the director-general of the Universal Exposition a certificate of protection. The application in such case must be made to the director-general, at the latest before the time of the opening of the exposition, or before the subsequent introduction of the object into the exposition, and with a precise description of the object in question, to be made by the introducer, and as far as may be requisite to indicate it clearly, accompanied by suitable plans or designs in two identical duplicate copies, or two duplicates of the marks referred to or of the pattern or model, and in separate wrappers.
• Article II. The certificate of protection will be gratuitously issued by the director-general of the Universal Exposition, with the co-operation and counter-signature of a person for that purpose designated by the minister of the provinces of the Hungarian crown, and insures to its acquirer from the therein indicated day of the entrance of the object in question, into the exhibition space; but in the event of the application being made after that time, then from the day of the bringing of the application, to be similarly indicated in the certificate of protection, up to 31st December, 1873, inclusive, the same rights which a regularly obtained patent or the regularly acquired registration of a mark, a pattern, or model would confer.
• Article III. An appeal or complaint against the decision of the imperial royal director-general in regard to the issue or refusal of such a certificate of protection is inadmissible.
• Article IV. In respect to applications of this nature, and the subsequent issue of protection certificates, a special register in two duplicates will be kept, of which, after the close of the exposition, one, with the respective applications and a duplicate of the accompanying description or marks, patterns, and models, is to be delivered to the, imperial royal ministry of commerce, the other, with a duplicate of the accompaniments of the applications before mentioned, to the royal Hungarian ministry for agriculture, industry, and commerce.
• Article V. The protection certificates issued will be published in the Austrian and Hungarian official journals. The examination of the register of protection certificates is open to all persons, while the accompanying descriptive plans, models, &c, will be kept secret, provided such be desired in the application.
• Article VI. The minister of commerce is charged with the execution of this law.

[Inclosure 2.]

Report of the motives for the draught of the law for the temporary protection of objects arriving at the Universal Exposition of the year 1873 in Vienna, for the purpose of exhibition.

It is without doubt one of the chief aims, which are founded in creating a universal exposition, to bring to view to domestic industry, in the most complete and regular manner possible, the most recent productions, means of production, and manner of treatment, from all parts of the world, in order to excite the said industry, by careful and profound study, to further progress in the various branches of active trades.

On the side of the exhibitor anxiety exists in regard to possible imitations of their new inventions coming to the exposition, which weakens this important motive, and this anxiety in regard to the approaching Universal Exposition at Vienna has already appeared in the foreign press, and especially in an article of the New York journal, Scientific American, of the 23d December, 1871, which is of great circulation in industrial circles, wherein was expressed, in a marked manner, the want of a proper means of protection in the matter, and the danger arising thereby to foreign exhibitors. In fact, also, in the previous universal expositions, the governments connected therewith have provided by special laws in the matter, and, lastly, the French government by the law of the 3d of April, 1867. Therefore, the director-general of the Universal Exposition of the year 1873 has claimed the co-operation of the government, in order to preserve to exhibitors the intellectual property of their objects arriving for exhibition, so that the rightful advantages of the existing laws, and especially of the patent, marks, and pattern protection laws, may be possessed during the duration of the exposition.

Should the important above-mentioned aim of the Universal Exposition not appear to be in danger by the said not unfounded anxiety, nevertheless, in order to remove the same, an exceptional rule appears absolutely necessary, whereby every exhibitor, whether native or foreigner, may be assured of the requisite lawful protection, during the duration of the exposition, for the object exhibited by him, so far as may be embraced by the enactments of the laws for patent, for mark, for pattern protection, and, without further consideration, whether the exhibitor possesses a trading establishment in this empire, whether or not a reciprocity provided in the law of 15th June, 1865, (R. G. Bl., No. 45,) is shown by the state to which he belongs in regard to the admission of protection of trade-marks, and, indeed, generally whether or not a convention shall exist between the state referred to and the Austro-Hungarian monarchy in regard to mutual maintenance of the protection of marks and patterns.

According to the manifest example of France, shown in the above-mentioned French law, the exhibitors, in order to obtain the requisite rights of protection apart from the competence thereto contained in the patent, in the mark, and pattern protection law, must apply exclusively to the director-general of the Universal Exposition with whom they are besides in correspondence; further, these protection rights should be conferred gratuitously in consideration of the short duration and the before-mentioned design of the Universal Exposition, which every exhibitor assists in promoting, as well as in consideration of the considerable expenses to which he is subjected by the transportation of the objects which he exhibits.

Inasmuch as such an exceptional rule, although only for a short time, involves an existing change in the patent, mark, and pattern protection laws, and can only be effected according to the enactments of articles 16 and 17 of the Austro-Hungarian customs and commercial union by mutual consent of the ministries of both countries, and in accordance with the legislation of both, therefore consultation upon the present draught of law, expressed and based upon the above principles, has been held with the royal Hungarian minister of commerce, and the latter has promised to introduce into the Hungarian Diet an analogous draught of the law.

To the several enactments of the present draught of law it is further to be remarked:

• Article I. With a certificate of protection can manifestly in every case only one kind of lawful protection be acquired, namely, either the patent, or the mark or pattern protection, according as the respective object is adapted to the one or the other species of protection. Whether this material adaptation exists, must be decided according to the enactments of the several protection laws here cited, and for objects which are lawfully adapted for none of the mentioned kinds of protection, no certificate shall be granted; with this view a careful examination of the object for which a protection certificate is claimed, shall take place; in regard to which the executive instructions will contain the special provision. The allowance of a delay for bringing in the requisite applications is founded upon the nature of the circumstances shown, as well as on the short duration of the rights of protection. The necessity of two duplicates of the description or of the mark or of the pattern, is derived from the various designs as seen in Article IV.
• Article II. Inasmuch as the articles of the Austro-Hungarian customs and Commercial Union, in the matter of patent, mark, and pattern protection, so far as relates to the introduction, extends over both countries, therefore a co-operation and countersignature of an organ of the Hungarian government appears requisite in issuing protection certificates. The respective rights of protection to the objects acknowledged as adapted thereto, provided applied in due season, should be enjoyed during the whole duration of their being in the exposition buildings, and inasmuch as the duration of protection mentioned in every certificate is a limited one, therefore from the day of introduction into the exposition buildings; but in the event of the application being made after that time, then from the day of bringing in the application until the 31st December, 1873, inclusive, after which day, in accordance with the rules of the exposition, the whole of the objects of exhibition must be removed from the exposition buildings. Should the exhibitors wish to obtain for a longer duration the patent, mark, or pattern protection, then they must comply with the enactments of the laws relative thereto. There is no ground for any further exceptional treatment.
• Article III. By the short duration of the protection referred to here, the admission of complaints against the determination of the director-general, in regard to the period of time that it should be permitted to exist, appears inexpedient: besides, so far as the protection certificates cannot confer more right than a regularly-obtained patent or the regularly-acquired registration of a mark or a pattern, therefore the authenticity of the protection certificate can always be contested by those who consider themselves prejudiced in their previously-acquired rights, in which respect the competency of the authorities referred to in the several protection laws remain unaffected.
• Article IV. This regulation is grounded upon the absolutely necessary evidence of the protection certificates issued, and, on the other side, upon the respective relation existing between both territories of the Austro-Hungarian monarchy.
• Article V. The exclusive rights acquired with the protection certificates can become operative against third persons only from the day of their publication, the necessity of which is thereby shown. The further enactment is in accordance with the enactments contained in the patent, mark, and pattern protection law.
• Article VI. Contains simply the usual executory clause.