Mr. Conger to Mr. Hay.

No. 296.]

Sir: I have the honor to transmit herewith correspondence concerning a patent spinning machine bought by Revs. Miner and Brewster, American missionaries, and Henry Edgar, an Englishman, from a Chinese who had secured a patent therefor from the tsungli yamen, and which they claim is now being manufactured by another Chinaman without their permission.

The tsungli yamen, as you will see, claim that because there is no stipulation in the treaties upon the subject they can take no action.

It seems to me that, under the circumstances, further argument on my part is useless.

I may add, however, that the Chinese look with a degree of suspicion upon the missionaries who engage in any sort of business scheme or enterprise, and possibly this may in some measure account for their decision.

I have, etc.,

E. H. Conger.
[Page 179]
[Inclosure 1.]

Mr. Gracey to Mr. Conger.

Sir: I have the honor to state that I was called upon by Rev. Mr. Miner yesterday in regard to an infringement of a patent right granted to a Chinese subject by the name of Cheng Tzu-sui on June 17, 1898.

Mr. Miner and other Americans have purchased the right to manufacture said machine and pay the Chinese inventor a royalty.

Recently another Chinaman by the name of Kung I-tu, who is a retired official, has been having some of these machines manufactured, and has applied to the Government at Pekin for a patent, claiming that his machine is to run by water power, while the original is run by foot or hand. As this machine is an imitation of the original, the mere matter of the power to be applied in its use does not enter into the question of the patent right.

The American gentlemen interested request that you will interfere in their behalf to prevent the issuance of this new patent.

I have, etc.,

Samuel L. Gracey.
[Inclosure 2.]

Mr. Conger to the Tsungli Yamen.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to advise your highness and your excellencies that G. S. Miner, American citizen of Fuchau, has purchased from a Chinese inventor the patent for a spinning machine, and is now manufacturing under said patent; that another Chinese, Kung I-tu, has applied for a patent for the same invention, changing only the motive power, but not the machine, the former being operated by foot or hand and the latter by water power.

The issuance of another patent for the same invention would very seriously impair, if not wholly destroy, the value of the patent now owned by Mr. Miner, which the undersigned can not believe the Chinese Government will permit.

He therefore brings the matter to the attention of your highness and your excellencies and requests that such investigation be made and such orders issued as will protect Mr. Miner in the full enjoyment of this right which, by the patent issued by the Chinese Government, has been guaranteed to him as the legal successor of the original patentee.

The undersigned avails, etc.,

E. H. Conger.
[Inclosure 3.]

The Tsungli Yamen to Mr. Conger.

Your Excellency: We have the honor to acknowledge the receipt of your excellency’s note of the 10th instant, wherein you state that G. S. Miner, an American citizen at Fuchau, has purchased from a Chinese inventor (Chen Tzu-sui) the patent for a spinning machine, and is now manufacturing under said patent; that another Chinese (Kung I-tu) has applied for the same invention; that the issuance of another patent for the same invention would destroy the value of Mr. Chen’s patent, now owned by Mr. Miner, and you requested that such orders be issued as will protect him in the full enjoyment of his rights under the patent issued, etc.

It appears that on the 17th of June, 1898, the yamen issued a patent to one Chen Tzu-sui, a Chinese subject, for a spinning machine which he had invented. The machine was really a useful one, and the patent issued gave him the exclusive right to manufacture same for the period of fifteen years. This was done in order to encourage him.

We may mention that in your excellency’s note the name of the inventor is given as Chen Tzu-shou, a Foochow man, whereas it should have been Chen Tzu-sui.

We may also state that Mr. Kung I-tu has never applied to the yamen for the issuance of a patent.

Cards of ministers with compliments.

[Page 180]
[Enclosure 4.]

Mr. Gracey to Mr. Conger.

Sir: I had the honor to address a communication to you on the 29th of March last in regard to the infringement of a patent on a spinning machine, by the Chinese authorities at Pekin to a native by the name of Cheng Tzu-sui, June 17, 1898.

Mr. George S. Miner and W. N. Brewster, American citizens at this port, bought the right to manufacture and use such machines from the inventor. As I have previously written you, another Chinaman, who is a retired official of wealth, by the name of Kung I-tu, has been having similar machines manufactured, and is running them by water power on the hills near Fuchau. I have made the request to the viceroy of this province to restrain Kung I-tu from making or using said machines, and he replies that he will cause an examination to be made of the two machines.

Yesterday the taotai of the foreign board called to see me in reference to the matter. He made inquiries as to the patent laws of Western countries. It would appear from what he tells me that the issuing of patents in China to natives being such a new thing the laws have not yet been formulated covering infringement of rights, sale of rights, etc. He asked me if an American inventor could transfer all his right to another American or a foreigner for a consideration, and if so what protection would be granted by our laws to a foreigner in America? He said there was no law in China allowing such transfer to be made, but the right was issued to be used only by the native.

He further said the machine claimed by Mr. Cheng as his invention was all right, but was only to be run by foot power, whereas Mr. Kung’s machine was run by water power, which made it a very different thing and capable of producing much more and better material. He argued that this was an improvement so we could not object to Mr. Kung’s action, and that he might apply to Pekin for a patent also. I endeavored to make him understand the laws of patent rights as held in America, and that it frequently happened that an inventor being a poor man was not able to develop his invention, and consequently sold all or part of the right to manufacture to others. I further told him that a patent was issued on a certain principle applied, and that the power used, whether steam, electricity, water, wind, animal, foot, or hand, to run the machine had nothing to do with the principle which had been patented, and that the infringer was using machines made on a certain principle or manner which had been patented. He then said “but you know many firearms are patented, and if another ingenious man makes an improvement on a gun he can receive a patent for that and manufacture the gun.” I endeavored to explain this to him also, saying that the new could only be applied to the old gun by consent of the original inventor, and if the original inventor desired to use the improvement he could only do so by paying the inventor thereof for the privilege and thus the rights of both were protected; but if a man claimed the privileges of manufacturing and using a patented firearm because he had invented a new powder to be used in it called “smokeless powder,” his claim could not be allowed.

I suggested that this was a parallel case with his spinning machine, as both related to a power outside and apart from the machine by which it was operated. I spent a long while in this kind of kindergarten exercise in regard to patent laws and principles. He said all these questions were so new with the Chinese authorities that they did not know what to do, and would have to refer the matter to Pekin for settlement. I suppose he will do so, and I write this to give you information as to some of the difficulties which will doubtless arise before the Chinese have formulated fully their patent laws.

In the meantime Mr. Kung is manufacturing and using the machines, notwithstanding my request to the officials to restrain him from doing so.

I am, etc.,

Samuel L. Gracey, Consul.
[Inclosure 5.]

Mr. Conger to Mr. Gracey.

Sir: I have to acknowledge receipt of your No. 60 of the 29th ultimo, concerning the infringement by one Kung-i-t’u of a patent for a spinning machine issued by the [Page 181] Chinese Government to one Chen Tzu-sui and now owned by the American citizens George S. Miner and W. N. Brewster.

You will remember that in your dispatch of March 29 last it was claimed that Mr. Kung-i-t’u had applied for a patent upon a like machine which the tsungli yamen did not issue. They replied that he had made no application for a patent.

Now, upon your further statement that Mr. Kung-i-t’u is, without a patent, making and using said machines, and that the local officials inform you that the question of infringement must be referred to Pekin, I have requested the tsungli yamen to issue such orders as will protect the present owners of the patent in the exclusive right to make and use the invention.

I am, etc.,

E. H. Conger.
[Inclosure 6.]

Mr. Conger to the Tsungli Yamen.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, recalls to the attention of his highness and their excellencies his note of April 10 last, and their reply of April 20, on the subject of a patent for a spinning machine issued by the tsungli yamen to one Chen Tzu-sui and its infringement by one Kung-i-t’hu.

His Highness and their excellencies stated in their note that Mr. Kung-i-t’u had never applied for a patent, etc.

However, the United States consul at Fuchau now informs the undersigned that the said Kung-i-t’u is manufacturing and using similar machines, and that the local officials, in reply to his request that Mr. Kung-i-t’u be restrained from making and using said machine in violation of the patent mentioned, informs him that the matter would have to be referred to Pekin for settlement.

Mr. Kung claims that because he runs his machine by water power and those made under the patent of Chen Tzu-sui are run by some other power, that consequently his is not an infringement.

But in this case it is the machine itself which is covered and protected by the the patent, and not the method of running it.

It would be quite as reasonable to say that in a case where one had patented a particular kind of cart, which he had drawn by a horse, it would not be an infringement if another made the same kind of cart and had it drawn by a mule.

The present owners of the patent spinning machine referred to are George S. Miner and W. N. Brewster, American citizens, and the undersigned therefore requests that his highness and their excellencies will cause such orders to be issued as will protect them in the exclusive right to make and use the machine for which his highness and their excellencies have themselves granted a patent.

The undersigned avails, etc.,

E. H. Conger.
[Inclosure 7.]

The Tsungli Yamen to Mr. Conger.

Your Excellency: We have had the honor to receive your excellency’s note in regard to the patent for a spinning machine, issued by the tsungli yamen to one Chen Tzu-sui and its infringment by one Kung I-tu. Although Kung I-tu had never received a patent from the yamen, the local authorities state that he can not be restrained from making and using the said machine and that the matter would have to be referred to Pekin for settlement. The present owners of the patent referred to are George S. Miner and W. N. Brewster, American citizens, who bought the patent from Chen Tzu-sui, and your excellency requested that such orders be issued as will protect them in the exclusive right to make and use the machine, etc.

In reply, we would beg to observe that, in the matter of protecting patent rights, China has never entered into a treaty with western nations on the subject. In the present case, however, Chen Tzu-sui has sold his patent to Mr. George S. Miner and W. N. Brewster, and China can only say that at all the treaty ports they can carry on their business of their own free will and accord. But as there is no stipulation of treaty in regard to protecting patent rights, the yamen has really nothing to rely on in taking action in the premises.

Cards of ministers with compliments.

[Page 182]
[Inclosure 8.]

Mr. Conger to the Tsungli Yamen.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States of America, has the honor to acknowledge the receipt of the reply which his highness and their excellencies have made to his note requesting protection of the patent which the tsungli yamen issued to Chen Tzu-sui, and which is now owned by Messrs. Miner and Brewster.

He notes the claim of his highness and their excellencies that because China has never negotiated treaties upon the subject of patents the tsungli yamen has nothing to rely on in taking action in the premises, but he can not agree to this conclusion.

It is true that China has never entered into special patent-right treaties, but this is not a question of a foreign patent, and hence no patent treaty is necessary. The case is fully provided for by the general treaties.

The tsungli yamen has formally granted a patent for the machine mentioned and guaranteed to it exclusive rights a period of fifteen years, and unless prohibited by the terms of the grant itself it may, by law, equity, and universal practice, be properly transferred to anyone, and the tsungli yamen is bound to carry out its guaranty in whomsoever’s hands it may legally be found.

It certainly would not refuse to protect this patent in the hands of any Chinaman to whom it might be transferred, and since by treaty China has agreed that foreigners may enter and do business in the treaty ports, and their persons and everything belonging to them be always fully protected, she can not now legally or equitably refuse to protect this property of Americans simply because it happens to be a species of property created by the Chinese Government itself and which rightfully has come into the possession of Americans.

It is a plain matter of business, and should be treated in a businesslike way.

Why does the tsungli yamen issue exclusive patents if it does not intend to protect them from infringement?

The fact that the one under consideration has fallen into the hands of a foreigner can in no way release the Chinese Government from its promises and obligations concerning it.

Prompt and proper appeal has been made to the local officials for protection against the infringement of Kung I-tu, but they reply that they are powerless to restrain him, and that the matter can only be settled by the tsungli yamen.

There seems, therefore, to be left to the undersigned no other course than to bring the matter to the attention of his highness and their excellencies and to again request that the local officials be ordered to see to it that Kung I-tu and all other persons be restrained from making and using the above-mentioned machine, except under the exclusive patent already granted by the tsungli yamen.

The undersigned improves, etc.,

E. H. Conger.
[Inclosure 9.]

Mr. Gracey to Mr. Conger.

Sir: I have the honor to inclose herewith copy of a letter received by me from Rev. G. S. Miner, in reference to the infringement of patent-right case, entered as No. 9 in this consulate. I think Mr. Miner’s letter is self-explanatory and needs no further comment.

I am, etc.,

Wilbur T. Gracey,
Vice-Consul in Charge.
[Subinclosure.]

Mr. Miner to Mr. Gracey.

Dear Sir: On June 22, 1899, I sent you a communication setting forth:

  • First. The interest that Henry Edgar, esq., a British subject, and W. N. Brewster and myself, citizens of the United States of America, have in a certain spinning [Page 183] machine invented by one Chen tzu sui, of Foochow, a Chinese subject, and patented by the tsungli yamen on the 15th day of the 4th moon of the 24th year of the Emperor Kuang-su; and
  • Second. That one Kung Pao hu, of Foochow, a Chinese subject, was making and using machines similar to those of Mr. Chen’s, thereby trespassing upon letters patent.

As further proof of our claim on said spinning machine, I present the following exact copy of a bill of sale, exact save that the sum paid for same is left blank, as we do not care to make that public.

Bill of sale.

I, Ding lu sui (Chen tzu sui, the mandarin spelling and pronunciation of Foochow), Province of Fukien, Empire of China, a Chinese subject, who am the inventor of a machine called the automatic rotary spinning machine, do, for and in consideration of —— and —— Mexican dollars, the receipt whereof is hereby acknowledged, and an additional consideration to be paid in certain royalties, as provided for in another instrument, hereby transfer, assign, bargain, sell, and convey unto W. N. Brewster, of Hinghua, China, and G. S. Miner, of Foochow, China, who are citizens of the United States of America, all claims, patents, and protections granted and pending, and that may in the future be granted, and rights of proprietorship which I have in the said automatic rotary spinning machine, and all improvements I may make thereon, so far as they relate to the manufacture, use, and sale of same in all the countries of the world, intending and hereby stipulating that the said W. N. Brewster and G. S. Miner shall have the right to patent in all countries of the world the said automatic rotary spinning machine, having such patents issued in their own names or in the name of any firm or company they may form, or in the name of any person or company of persons to whom they may assign their interest, and those said rights of proprietorship and patents shall inure absolutely to them and their heirs forever.

Witness my hand and seal this 19th day of July, 1898.

Ding liu sui.

Signed at Foochow, China, this 19th day of July, 1898, in the presence of—

Wong lik Sing.

Hu Ung King.

The following is a translation of the letters patent.

The Chinese copy is annexed thereto.

The tsungli yamen issues the following letters patent:

Whereas, on the 15th day of the 4th moon of the 24th year of the Emperor Kuang-su, the inspector-general of customs stated that the excommissioner of the maritime customs at the port of Foochow, Henry Edgar, esq., had asked leave to return to his native country and in making the journey had come to the capital and had brought with him a Chinaman, Ding liu sui, and a cotton machine invented by him, the said Ding liu sui; and

Whereas the said commissioner said that the said cotton machine had been examined by skilled mechanics and proved to be a proficient and useful machine of new invention, he, the said commissioner, asked the tsungli yamen to issue, according to the Western laws, letters patent, etc., giving sole right to make and use said machine, so as to encourage other people in the future to think out new things.

Upon examination, the present tsungli yamen found that in the twenty-first year of the Emperor Kuang-su the grand commissioner of the northern ports of China presented a memorial with reference to forming a company for making wine, and asked to have a certificate issued granting them the sole right to make it for fifteen years. At that time the tsungli yamen consulted with the board of revenue about it and then memorialized the Throne, from which they received a decree granting the said permission. All this is on record.

Now the inspector-general of customs has sent Ding liu sui with his machine to the yamen for examination, and truly it was found to be a useful machine, showing that he had great skill in inventing his machine.

Therefore, we now, in accordance with the former record, issue this certificate, letters patent, granting him the sole right to make and use the said machine for fifteen years, and during that time no one shall be allowed to establish any other factory for making said machine to be used by them. This we do to encourage other people to think out new things.

[Page 184]

When the time of these letters patent has expired they are to be returned for cancellation, according to what is recorded. This letters patent is issued to Ding liu sui to receive and hold, on the 29th day of the 4th moon of the Emperor Kuang-su.

In an instrument dated June 27, 1898, is set forth facts which prove that Henry Edgar, W. N. Brewster, and myself are equal owners in the above-named automatic rotary spinning machine.

The following is a translation of the statement of Mr. Ding liu sui, the inventor of the said spinning machine.

The Chinese original copy is attached hereto.

I, Ding liu sui, of Foochow, China, make the following statement, which is the truth. In the 10th year of the Emperor Kuang-su I thought out the principle on which the automatic rotary spinning machine is constructed and operated. From that time until the 24th year of the Emperor Kuang-su I have been studying and improving it. In the 4th moon of the 24th year of the Emperor Kuang-su I went with Commissioner Edgar to Peking and secured letters patent for my spinning machine, which is there on record. This I state according to the truth for your consideration.

Ding liu sui.

Signed this 24th day of October, 1899.

Witness: Lan Kieng Hwo.

The piles of wheels, frames, tubes, etc., we saw in Mr. Ding’s attic the spring of 1896 were enough to prove the above statement.

The following is the statement of Mr. Lan Kieng Hwo, a graduate of the Anglo-Chinese College, a business man of this port, who has been acquainted with this cotton-machine business from the first:

Foochow, China, October 26, 1899.

This is to certify that I do not hesitate to state that I am personally acquainted with G. S. Miner, W. N. Brewster, Henry Edgar, Ding liu sui, and Kung Pao-hu. I know that Mr. Ding has worked many years and spent a large sum of money in bringing his machine to its present state of perfection. I know a number of men who used to work for Mr. Kung Pao-hu, and who testified before me and others that it has not yet been two years since Kung Pao-hu commenced the spinning business, and when he did commence he bought a few old machines that were found around among the people of Foochow. Mr. Kung proclaimed that he had a patent for this spinning machine and compelled these persons to sell to him.

Lan Kieng Hwo.

I have talked with Mr. Kung on this subject and he has never claimed to be the inventor of the machine. In the years 1890 and 1897 we employed a number of men to make machines, so as to give them a thorough test. These machines have been in use ever since in Hing hua, as heretofore stated. In 1897 we heard that our men had made and sold one or more machines. Soon after this I visited a place in the city and found one machine like ours, but they would not tell us where they got it.

Now there is nothing clearer than that these machines of Gung’s (Kung Pao-hu) were patterned after Mr. Ding’s (Chen tzu sui) and that the rights of Mr. Ding are being infringed upon and the honor of the tsungli yamen degraded by this man Gung. Mr. Gung is now making and using the machines after you have respectfully asked him to desist from infringement. I trust you will present this case again to the proper powers and the rights of Ding liu sui, Henry Edgar, N. W. Brewster, and myself be protected

I have, etc.,

G. S. Miner.
[Inclosure 10.]

Mr. Conger to the Tsungli Yamen.

Your Highness and Your Excellencies: With reference to the question of infringement of a patent for a spinning machine, issued by the tsungli yamen to one Chen Tzu sui, and transferred to Messrs. Brewster and Miner, American citizens.

On June 21, last, I had the honor to address your highness and your excellencies an additional note with important arguments therein, to which as yet I have received no response.

Trusting that your highness and your excellencies have now had time to give this note consideration, as it deserves, I have the honor to respectfully request a reply to the suggestions made therein.

I avail, etc.,

E. H. Conger.
[Page 185]
[Inclosure 11.]

The Tsungli Yamen to Mr. Conger.

Your Excellency: Upon the 1st of December, instant, we had the honor to receive your excellency’s note with reference to the question of infringement of a patent for a spinning machine, issued by the tsungli yamen to one Chen Tzu-sui and transferred to Messrs. Brewster and Miner, American citizens. Your excellency referred to your previous note of June 21, last, and stated that the yamen have now had time to give the note the consideration it deserves, and you respectfully requested a reply to the suggestions made therein.

Upon the 8th of June your excellency addressed the yamen requesting that such orders be issued as will protect Messrs. Brewster and Miner in the exclusive right they purchased, and on the 18th idem the yamen duly replied to same. This is a matter of record.

Now having received the note under acknowledgment, we have to say that China will still permit Messrs. Brewster and Miner, at all the treaty ports, to carry on their business of their own free will and accord, but as to protecting them in their exclusive right and prohibiting others from making machines, as there is no treaty stipulation on the subject, the yamen still finds no way of taking action.

Cards of ministers with compliments.