The Classification of Patents Part 2

Again, the same processes may be applied to a ma.s.s of more diversified junk, of which the metal sc.r.a.p may form one pile, rags another, old bricks another, old timber another, and, still another, timber having metal-straps, bolts, nails, etc., connected with it.

_Superiority and inferiority._--In the arrangement of subcla.s.ses in a cla.s.s, those groups that are related to each other as wholes and parts are arranged so that the wholes shall stand before the parts, and so that subcla.s.ses defined by effect or by special use shall stand before those defined by function or general use. For example, in the sc.r.a.p ill.u.s.tration above, a.s.suming the t.i.tles to be in a printed arrangement, "chains" precedes "links," which may be parts of chains, and if it had been desired to separate animal-drags, for instance, from the sc.r.a.p, some animal-drags being particular adaptations of a bar, links, and ball, the group of animal-drags should precede "Bar, link, and ball."

The words "superior" and "inferior" have been used to indicate this relationship. A cla.s.s or subcla.s.s defined to receive a certain combination is superior to one defined to receive an element or a combination that is a part of that certain combination. A cla.s.s or subcla.s.s defined to receive means for making a particular product, as an electric lamp, is superior to a cla.s.s or subcla.s.s designed to perform a general function, as pumping air from a container. And whenever a question of a.s.signment of a patent or application that contains matters of two or more groups bearing that relation is raised, the "superior"

group is selected to receive it.

Further, in those instances in which groups are formed on different bases or different characteristics, not comparable with each other, and a patent is presented having matter falling in each group, that group which is highest in position is preferred in those instances where separate provision for means having both characteristics has not been made.

In cases of necessity, as where a combination is presented for which no cla.s.s has been definitely provided, but cla.s.ses exist into which the several parts would fall if separately claimed, the same practice that obtains in similar situations with respect to two or more _subcla.s.ses_ of a cla.s.s may be followed with respect to two or more _cla.s.ses_ and the patent placed in that cla.s.s which, in accordance with above-stated principles, should be deemed the "superior."

_Definite positional relationship of subdivisions._--In the metal sc.r.a.p example, above, division has been effected on the one basis of form or contour. If it had been desired to separate also on material, for example, if it were deemed important to locate all bra.s.s sc.r.a.p, each of the groups based upon form could be divided into one of _bra.s.s_ and one _not bra.s.s_, or the entire heap could be divided into _bra.s.s_ and _not bra.s.s_, and under the heading "bra.s.s" could be indented the various articles made of bra.s.s, and under "not bra.s.s" the various articles not made of bra.s.s, and this would double the number of divisions. If also it were desired to separate the lead articles in the same manner the number of cla.s.ses would be tripled. But, as in the book ill.u.s.tration, it may be impracticable thus to multiply subdivisions, and the basis "form" having been selected as of _first-rank_ importance, all divisions based upon form should be completed and kept together. Then, "material," having been selected as of _second-rank_ importance, should be carried out with respect to all objects in which form is non-essential. If enough bra.s.s b.a.l.l.s were found to render it advisable to make a subdivision of them, they should be a.s.sembled into a subcla.s.s indented under "b.a.l.l.s" and not into a subcla.s.s indented under "bra.s.s." Having selected one basis as _primary_, it should never subsequently be made _secondary_ or _vice versa_. Some such restriction on modes of division appears salutary in a system of divisions designed to definitely limit search. The arrangement herein sought to be explained is susceptible of use to limit all searches for a single definitely stated invention to a subcla.s.s properly ent.i.tled to receive it or those indented under it, and to those subcla.s.ses above, which may include it as a part of an organization or specialized means.

As between coordinate groups divided on the same basis, there is no question of superiority and inferiority. The terms "superior" and "inferior" are useful in questions of relationship between combinations and subcombinations or elements thereof, and between groups founded on effect or product and those founded on simple function. The mere difference in complexity of mutually exclusive coordinate groups involves no relationship of superiority or inferiority. A subcla.s.s to receive a screw-cutting lathe is superior to a subcla.s.s to receive a lathe-headstock, a locomotive cla.s.s is superior to a cla.s.s to receive steam-engines, for the reason that the lathe is a whole of which the headstock is a part, and the locomotive is an organization of which the engine is an element. But the headstock subcla.s.s is not superior necessarily to the tailstock subcla.s.s simply because the headstock is commonly more complex than the tailstock. Yet arbitrary preference for cla.s.sification in the headstock subcla.s.s may be established by position where an application or a patent contains claims for both.

Thus in a cla.s.s that is founded on a well-chosen basis that brings together things bearing close resemblances to each other, all types that contain the elements essential to produce a complete practically operative means will be found in subcla.s.ses that have a position somewhere between the beginning and end of the list of subcla.s.ses of the cla.s.s. Those that add features of elaboration of the essential types and those that are highly specialized to some particular purpose within the definition of the cla.s.s will stand above the essential type subcla.s.ses, while those subcla.s.ses for parts and details will stand below those for the essential types.

_Indented schedules._--In an indented schedule all subcla.s.ses in the first column reading from the left are species to the genus represented by the cla.s.s t.i.tle.[9] All subcla.s.ses indented under another subcla.s.s are species to the genus represented by the subcla.s.s under which they are indented. If a t.i.tle has no number, it represents merely a subject-matter to be divided, a genus,--having no representatives except in the species under it. If a subcla.s.s having a generic t.i.tle has a number, it not only represents a subject-matter to be divided into species but also all other species not falling within the t.i.tles indented. Although these relative positions might imply that only proximate species are indented one place, yet mechanical difficulties render it impracticable to so arrange that all species shall be indented under their proximate genera.

Indention properly carried out has a tendency to prevent in the process of logical division the logical fault of proceeding from a high or broad genus to a low or narrow species. This latter fault may inadvertently separate things that belong together. If, for example, it were desired to divide b.a.l.l.s in the stated ill.u.s.tration according to material, an immediate division of b.a.l.l.s into aluminum, zinc, gla.s.s, ivory, rubber, would be less useful than to divide into mineral materials and nonmineral materials as follows:

b.a.l.l.s-- Mineral-- Nonmetallic-- Gla.s.s.

Metallic-- Aluminum.

Zinc.

Nonmineral-- Vegetable-- Rubber.

Animal-- Ivory.

However, it is evident that indention carried to its full extant, useful as it is in keeping a.n.a.logous things together, would make the printing of schedules complex and unwieldy. Nevertheless, in the generalizing process necessary in logical division and arrangement, the divisions of species should always be _mentally indented_, as it were, under their _proximate_ genera. Thus, under a genus unnamed may be arranged several species in juxtaposition, without actually printing the name of the genus, so that the schedule above may read:

b.a.l.l.s-- Gla.s.s.

Aluminum Zinc.

Rubber.

Ivory.

In an arrangement printed in idea-order, though relegating the genera mineral, nonmetallic, metallic, nonmineral, vegetable, animal, to the mind unaided by printed words, the different species of the same genus may be kept together except that species for which no t.i.tle has been provided must go back to the subcla.s.s under which the named species are indented. Thus the arrangement above necessitates placing in subdivision "b.a.l.l.s" all _copper_ b.a.l.l.s, whereas indention under proximate genus "metal" would have brought all metal b.a.l.l.s together. In a finely divided cla.s.sification, printing of t.i.tles for all genera is not practicable; hence great care ought to be directed toward grouping species according to the principles of arrangement herein outlined, noting that whenever a change of basis is made, a new genus is implied, and that subcla.s.ses for all other species of the same genus under whatever name, must be brought into juxtaposition as if indented under the implied genus.[10]

_Bifurcate division._--Most discussions of cla.s.sification make reference to the so-called bifurcate scheme of division as the only one by which exhaustive division can be surely achieved. This is commonly ill.u.s.trated by the ancient tree of Porphyry. By this method any subject it is desired to subdivide is first divided by writing the name of one selected species at one branch and writing at the other branch the name of the same species prefixed by "Not." Thus the Aga.s.siz cla.s.sification of living beings divides them first into sensible and not sensible (plants). A botanical cla.s.sification divides plants into flowering and not flowering. A zoological cla.s.sification divides animals into vertebrate and not vertebrate. By continuing the process of division in the same manner, the division is obviously exhaustive of the subject, there being always a negative subdivision to receive any subsequently created or discovered species. Although bifurcate division has been ridiculed by some, it is agreed by highest authority that it is the only plan of division by which one can be sure to have a consistent place for everything, or by which one can be certain that the divisions are mutually exclusive. It can be demonstrated that a cla.s.sification schedule in which the relation of genera and species is shown by indentions, if correctly formed on the principles now sought to be applied in the revision of the Patent Office cla.s.sification, is susceptible of conversion into a tree of Porphyry, while unlike the latter it is compact and wieldy.

_Utility of arrangement according to resemblances._--The expedient of indicating kinds of relationship between several equally indented divisions by relative position has the following utility:

(1) A uniform rule is provided, applicable to all cla.s.ses, for placing inventions that bear the relation of whole to part in subdivisions before those that bear the relation of a part to that whole, and those that are defined by a particular effect, product, material, or use before those that are defined by a function or an operation applicable generally to various effects, products, materials, or uses; whereby that portion of the schedule in which any invention belonging to any particular cla.s.s should be found may be approached whether or not the investigator knows the name of the object sought for or the t.i.tle of the appropriate subdivision.

(2) The substantial impossibility of dividing many branches of the useful arts exhaustively into a reasonable number of mutually exclusive or non-overlapping subcla.s.ses is compensated for; so that when the cla.s.sifier or the searcher has an invention to place or to find including two or more different kinds of characteristics, for each of which a subdivision is provided, but no subdivision for the plural characteristics, it will be known that the invention should be in the subcla.s.s for that characteristic which stands before the subcla.s.s for the other characteristic.

(3) It compensates for omission of some generic t.i.tles that if written in the indented schedule would lengthen specific t.i.tles to a c.u.mbersome extent.

(4) It provides a rule for cross-referencing where several inventions are claimed bearing to each other any of the relationships indicated above, cross-referencing being necessary in one direction only where the matter ill.u.s.trated is coextensive with the matter claimed.

(5) It definitely limits the field of search for any _unitary invention_ in any cla.s.s so arranged, as no patented invention having the limitations imposed by a unitary claim should be found in any subcla.s.s below the subcla.s.s properly defined to receive it or those indented under it. Parts of such inventions may be found below or following this subcla.s.s in the same cla.s.s if these parts are within the cla.s.s definition, or elsewhere in the useful arts if not within that definition. The unitary invention may be found in the subcla.s.s limited to it and certain subcla.s.ses arranged _above_ or _before_ it adapted to receive organizations of which it may be a part.

A complete system of arrangement should comprise (1) a display of the entire field of the useful arts in a manner to show the relation of the larger as well as of the smaller groups,--carrying the appropriate relationship as far as possible from the highest genera to the lowest species, the arrangement being such as would bring materials most nearly alike into closest propinquity regardless of the names they may be called by. (2) Supplementary to this cla.s.sification arrangement by ideas there should be an alphabetical index of subcla.s.s t.i.tles, appropriately cross indexed, and additional t.i.tles of various technical and trade names of things cla.s.sified under subcla.s.s t.i.tles.

DEFINITION.

Definition is indispensable in any cla.s.sification and is very difficult. Every cla.s.s must be defined and all of the groups under it.

After definitions have been made and printed, they are sometimes found inadequate and must be supplemented by the definitions of other cla.s.ses.

This is unavoidable while the complete material remains unexplored.

Definition in the strict logical sense is not to be expected, nor is it necessary. It is commonly sufficient if an explanation or comparison be made sufficient to direct the mind to the character of the contents of the group and indicate its limitations. Hitherto four of the five predicables of ancient logic have been mentioned, to wit, genus, species, property, and accident. In connection with definition, the fifth predicable, difference, is useful. To define a cla.s.s, it is sufficient, generally, for the purposes of office cla.s.sification, to state a _peculiar property_ (not an accident) of the objects included in the cla.s.s; and to define a species under the cla.s.s it is sufficient to state the name of the cla.s.s plus the difference--i. e., with the addition of the limitations that characterize the species.[11] This procedure in definition is susceptible of application from the highest genus to the lowest species. It is advisable to define the means included within a t.i.tle without any introductory words, such as "this subcla.s.s includes inventions relating to," etc., treating the subcla.s.s for definition purposes as if it were a collection of concrete things, in the same manner as in a dictionary definition.

CROSS-REFERENCES AND SEARCH-NOTES.[12]

If patents were in all respects like material objects, cross-references and search-notes would not be necessary. Nails, screws, locks, hinges, and boxes are distinct things susceptible of definite separation and cla.s.sification. Even though nails, screws, locks, and hinges form part of the box, the box is still a box, not a nail, screw, hinge, or lock.

For the needs of the Patent Office cla.s.sification, however, although a patent for a box must be cla.s.sified with boxes, yet if a peculiar nail, screw, lock, or hinge is claimed in the same patent with the box, or even if any one of these customary accessories of boxes is ill.u.s.trated, it may be necessary to provide copies of the patent for the box in each of the several cla.s.ses provided for nails, screws, locks, or hinges.

Inasmuch as every relatively complex thing is made up of relatively simple things, it is obvious that all disclosures can not be cross-referenced. Any attempt to calculate the number of cross-references to be supplied if all disclosures of the subjects of invention were to be cross-referenced would show the number to be incalculable. It is necessary, therefore, to leave to the judgment of the cla.s.sifier the propriety of cross-referencing unclaimed disclosures.

Should a patent contain a number of claims defining a number of differently cla.s.sifiable inventions, complete cross-referencing from the cla.s.s in which the cla.s.sification is made original into the other appropriate cla.s.ses or subcla.s.ses should be effected, _unless_ cross-search notes or arrangement of subcla.s.ses with appropriate t.i.tles may be subst.i.tuted to advantage.

Cross-referencing or cross-search notes are made, as a rule, from combination cla.s.s to element cla.s.s, but never or very rarely from the element cla.s.s to the combination cla.s.s in which it may be used. Thus cross-referencing should normally be downward in a schedule of subcla.s.ses. Search notes indicate parallel or otherwise related cla.s.ses and subcla.s.ses, and those cla.s.ses and subcla.s.ses in which a.n.a.logous structures having different purposes but adapted to answer broad claims may be found.

By arbitrary rules of arrangement such as have been referred to in the section dealing with division and arrangement, a search may ordinarily be definitely limited to a certain number of subcla.s.ses, even where cross-references are not made. In such arrangement any given patent, _if it be directed to one invention_, may be searched in the subcla.s.s within which the definition places it or subcla.s.ses indented under it, and in certain subcla.s.ses above, whose t.i.tles will indicate that the invention might be included as a part of the matter defined to belong therein, but it would never have to be searched in any subcla.s.s following and not indented thereunder.

DIAGNOSIS TO DETERMINE CLa.s.sIFICATION.

Each patent and each application discloses one or more means of the useful arts (using the term "means" to cover both processes and instruments in the sense in which it is used by Prof. Robinson), almost always more than one, since most new means are combinations of mechanical elements or acts. In some patents and applications the disclosure is coextensive with that which is claimed; in others there is matter disclosed but not claimed. The unclaimed disclosure may be as valuable as the claimed disclosure for purposes of antic.i.p.ation, and the cla.s.sification must provide for both. If the claimed disclosure belongs in one cla.s.s and the unclaimed in others, the cla.s.sifier must choose between two or more cla.s.ses that one in which the patent or application shall be cla.s.sified and those into which it shall be cross-referenced.

_Claimed or unclaimed disclosure._--The claims of a patent are the statutory indices of that which the applicant believes to be new, they define an invention that has been searched by the Patent Office and no antic.i.p.ation discovered for it. Future action must be based on inductions from past experience; none knows what the future lines of search will be; the only guides for future searches are the searches of the past; the evidence of past searches is the claims of patents; they trace the course of invention. Furthermore, a presumption of novelty attaches to the claimed matter; no such presumption attaches to the unclaimed. The law requires every patent for improvement to show so much of the old as is necessary to explain the uses of the improvement. In practice much more than that is disclosed. Questions as to the proper placing of patents and cross-references would be diminished by the strict enforcement of Rule 36 of the Rules of Practice requiring that the description and the drawings, as well as the claims, be confined to the specific improvement and such parts as necessarily cooperate with it. In any event both the claimed disclosure and that which is unclaimed must be taken care of, one by cross-reference, and the disclosure selected for cross-reference is that to which no presumption of novelty attaches.

This practice of placing patents by the claimed disclosure is sometimes misunderstood. Its chief application is in determining cla.s.sification in case of disclosures involving a plurality of main cla.s.ses. Furthermore, the mere letter of the rule is not to be applied in preference to its spirit. Subcombinations claimed may be placed with the combinations, and in subordinate type subcla.s.ses patents must be placed sometimes by claimed and sometimes by not-claimed disclosures.

_Diagnosis of pending applications._--What has been said relates to patents. The bearing of the practice of adopting the claimed disclosure as the basis of a.s.signment of applications for examination has also to be considered.

Two pending applications claiming the same means very commonly differ in the kind and extent of disclosure. One application may disclose several inventions. Which of the several disclosures shall be selected as the mark by which to place the application? For instance, the typical wire-nail machine has a wire-feeding mechanism, a shearing mechanism, an upsetting (forging) mechanism, side-serrating mechanism, and pointing mechanism; it may also have a counting mechanism, a packaging mechanism, an electric motor on its frame for furnishing power; and, in addition, numerous power-transmitting and other machine parts, such as bearings, oil-cups, safety appliances, etc. The applicant may have made a complete new organization of nail-machine and may seek a patent for the total combination. He may have invented a new shearing mechanism and have chosen to show it thus elaborately in the place of use he had in mind, or he may have designed a new counter or a new oil-cup or a new power transmission, or even a new motor, and have given his invention this elaborate setting. The shears, the counter, the oil-cup, the power transmission, and the motor are separately cla.s.sifiable in widely separated cla.s.ses. How shall the application be diagnosed for determining its place in the office cla.s.sification? When the specification and drawing disclose (as most of them do) several subjects matter of invention, though claiming only one, which of those several subjects matter shall control the cla.s.sification?

The most natural procedure, at first thought, would be to cla.s.sify on the totality of the showing, in which case the application for the nail-machine, supposed above, would be a.s.signed to nail-making. But imagine the invention claimed by an applicant to be the counter. Then the examiner in charge of nail-making would have to search the cla.s.s of registers with which he is not familiar. Suppose applicant No. 2 files an application for the same counter which he ill.u.s.trates and describes in connection with a bottle-filling machine, and that, cla.s.sifying on the totality of the showing, this goes to the division that has the cla.s.s of packaging liquids. Now both the examiners in charge of bottle-filling and nail-making, knowing that counters are cla.s.sified in registers, search the cla.s.s of registers and also the pending applications in registers. After these examiners have made their searches, suppose applicant No. 3 files an application for the same counter, which he says may be used for counting small articles produced by automatic machines. Perhaps he shows the counter attached to a piece of conventional mechanism representing any manufacturing machine, mentioning, say, a cigarette or pill or cartridge-making machine. It has not occurred to either the the examiner of nail-making or the examiner of bottle-filling that the other might have any such application; nor does it occur to the examiner in charge of registers to search nail-making or bottle-filling. As the specification of the counter application mentions cigarette, pill, and cartridge-making machines to which the counter may be attached, the examiner in charge of registers may search those cla.s.ses. Suppose that the counter proves to be new, and each of the three examiners allows a patent. Here now are three patents for the same thing. Of course, after allowance, the counter and all other disclosed inventions that give any suggestion of novelty are cross-referenced; but the primary purpose of a patent office cla.s.sification (to aid in determining patentability) has failed in this instance.

In the imagined situation respecting pending applications, without doubt diagnosis and cla.s.sification upon the invention claimed is necessary to effect the purpose of the office cla.s.sification. Cross-referencing after issue can not undo that which has been done.

If no application save that of the nail-machine be pending, no duplication of patents occurs, but the labor of search is increased by reason of the unfamiliarity of the examiner with the inventions he has to search. After the patent is allowed he may find the entire combination of the nail-machine without the counter disclosed in a patent for a nail-making machine, so that as a nail-making machine this new patent is of no value as a reference. Very probably all of the other inventions ill.u.s.trated (except the counter) are also old in their respective cla.s.ses; but the examiner of nail-making can not tell this without extensive searches in those cla.s.ses, so he notes cross-references for them all.

_Difficulties due to varying ideas of claims._--Very troublesome questions are constantly arising as to whether an invention should be cla.s.sified in a combination cla.s.s or an element cla.s.s. The point will be ill.u.s.trated by example: A describes and ill.u.s.trates an automobile having an internal-combustion motor and a friction-clutch in the motor transmission-gear. He states that the clutch is in the usual relationship to the motor and gearing, but claims a new clutch for whatever it may be adapted. B discloses an internal-combustion motor said to be for automobiles with transmission-gearing and a friction-clutch and claims "in an internal-combustion motor a friction-clutch," etc., specifying the form of the clutch. C makes the same disclosure, but claims "an internal-combustion motor having a specified clutch," while D, with the same disclosure, claims "the combination with the internal-combustion engine of an automobile" of a specified friction-clutch. E claims and ill.u.s.trates only the friction-clutch. Should these be cla.s.sified together? If so, in what cla.s.s? Should a bearing composed of a specified alloy of copper, tin, and antimony, be cla.s.sed as a bearing or as an alloy? Should a house painted with a mixture of linseed oil, lead oxid, and barium sulphate go to buildings or coating compositions? A lamp-filament of t.i.tanium and zirconium with electric lamps or with alloys? A building-block of cement, lime, sand, and carborundum, with building-blocks or plastic compositions? Whether these be diagnosed as combinations or as elements and compositions respectively, and cla.s.sified accordingly, criticism will be aroused. The point in view is that although principles of patentability must be considered in a cla.s.sification designed as an instrument to aid in determining patentability, convenience and accuracy of search and avoidance of voluminous cross-referencing may necessitate some arbitrary rule of cla.s.sification to meet various and changing theories applied to the drafting and allowance of claims.

From the foregoing it will be evident that cla.s.sification involves orderly logical processes of induction (supplemented by hypothesis), of definition and of deduction. After gathering a large number of facts generalizations are made from them and a hypothesis is found to be confirmed or modified by more extended research; the divisions are then defined; by correct diagnosis of other instances (as other patents) deductions may be drawn respecting the appropriate place for them in the cla.s.sification.

[1] An "art," in the sense of a single unitary invention, is a synonym of process, method, and operation. The term "art" is ambiguous in popular usage. In the phrase "useful arts" in the Const.i.tution, it denotes the area of endeavor to which the patent laws apply. When the word "art" is used to specify some fragment of the useful arts, it commonly raises different notions in different minds. It may be correctly used to designate _any_ division of the useful arts. It is as proper to speak of the art of grinding or the art of molding as of the art of metal-working or the art of brickmaking.

[2] A "use" is an application of a means to substance to produce an effect which may or may not be the necessary effect of the means in its normal operation. A catalytic may be used to ignite gas or to convert oleins into stearines. An ice pick may be used to hold a chalk line or p.r.i.c.k holes in leather, etc.