John Smith's book got me thinking about the Charles Dickens 1850 essay titled “A Poor Man's Tale of a Patent.” The essay — much like Smith's book — derides difficulty of obtaining a patent. In Dickens world, the patent applicant was forced to walk through 35–stages and spend the equivalent of $15,000 in order to obtain a patent.
But I put this: Is it reasonable to make a man feel as if, in inventing an ingenious improvement meant to do good, he had done something wrong? How else can a man feel, when he is met by such difficulties at every turn? All inventors taking out a Patent MUST feel so. And look at the expense. How hard on me, and how hard on the country if there's any merit in me (and my invention is took up now, I am thankful to say, and doing well), to put me to all that expense before I can move a finger! Make the addition yourself, and it'll come to ninety-six pound, seven, and eightpence. No more, and no less. . . .
Look at the Home Secretary, the Attorney-General, the Patent Office, the Engrossing Clerk, the Lord Chancellor, the Privy Seal, the Clerk of the Patents, the Lord Chancellor's Purse-bearer, the Clerk of the Hanaper, the Deputy Clerk of the Hanaper, the Deputy Sealer, and the Deputy Chaff-wax. No man in England could get a Patent for an Indian-rubber band, or an iron-hoop, without feeing all of them. Some of them, over and over again. I went through thirty-five stages. I began with the Queen upon the Throne. I ended with the Deputy Chaff-wax. . . .
I will now conclude with Thomas Joy. Thomas said to me, when we parted, 'John, if the laws of this country were as honest as they ought to be, you would have come to London - registered an exact description and drawing of your invention - paid half-a-crown or so for doing of it - and therein and thereby have got your Patent.' My opinion is the same as Thomas Joy.
The British government was apparently quite moved by the essay and quickly passed the Patent Law Admendment Act of 1852 that established a single office to control patenting. It was not until 1883 that the British Patent Office began a limited examination of the patents — although even at that time the concern was only whether the specification sufficiently described the invention. As you might expect, Dickens tale was an exaggeration. The UKIPO reports that in 1850, a patent applicant only needed to visit seven offices (paying the appropriate fee at each).
In a recent essay, Professor Scott Kieff uses Dickens to argue against further layers of post-grant opposition procedures — writing that “[t]oday's patent system already too closely resembles the burdensome and byzantine procedures described in Dickens' A Poor Man's Tale of a Patent. Adding subsequent windows of administrative review will only make matters worse. A better direction is to strip away the range of inter partes administrative procedures and adopt the set of changes to court litigation that are proposed below.” Kief's proposed changes include “easier access to enhanced damages” and a reduction of the presumption of validity. F. Scott Kieff, The Case For Preferring Patent-Validity Litigation Over Second-Window Review And Gold-Plated Patents: When One Size Doesn't Fit All, How Could Two Do The Trick?, 157 U. PA. L. REV. 1937 (2009).
