Elisha Foote, the 11th Commissioner of Patents, may be regarded as being the last Commissioner of the "old regime", prior to the revised laws of 1870. His term of office covered the period from July 25, 1868, to April 25, 1869, the interval between his term and that of his predecessor, Commissioner Theaker, being supplied by the Chief Clerk of Theaker's administration, who held the office of Acting Commissioner from January 20 to July 24, 1868.
Like his immediate predecessor in office, Commissioner Foote served an apprenticeship on the Board of Examiners-in-Chief. He was appointed to that office from Saratoga Springs, Saratoga County, New York, on August 1, 1865. The press of that day welcomed him into that position as a gentleman of the highest ability and character, his legal standing being particularly commented upon.
At the time of his appointment to the Board of Examiners-in-Chief, Mr. Foote was exactly 56 years of age, having been born at Lee, Massachusetts, on August 1, 1809. His academic education was obtained at the Albany Institute and following this he read law in the office of Judge Daniel Cady in Johnstown, New York, meanwhile supporting himself by teaching and surveying. After being admitted to the bar he settled in western New York and served as District Attorney and later as Judge of the Court of Common Pleas of Seneca County.
Upon his leaving the bench Judge Foote engaged in the active practice of law. His interest in patent law was not only that of a lawyer but that of an inventor and litigant as well. One of his patents, that upon an automatic draft regulator for stoves, was of considerable commercial value and was the subject of a number of suits at law and in equity, which under the caption of Foote vs. Silsby, were carried to the Supreme Court of the United States. Upon different points these were passed upon by that tribunal in three separate decisions, often cited as precedent, particularly with respect to publications and disclaimers. In all of these cases before the Supreme Court, Judge Foote appeared upon his own behalf.
Judge Foote's service on the Board of Examiners-in-Chief was most highly regarded by those coming before that tribunal. As Commissioner, he proved a good administrator and was held in high esteem by the corps. His official orders show that he insisted upon courteous treatment for all who had dealings with the Patent Office and that business-like methods were to be applied in the conduct of the examining and clerical work.
Of interest to present examiners is an order relative to classification questions indicating a practice, which, at times, it has been suggested should be revived:
"When a case belongs to more than one class in charge of different examiners the one who first receives it will act upon the part that belongs to his class and then send it together with his action to the examiners in charge of the other class who will complete the examination treating it as a preferred case, and communicate the result to the applicant."
Commissioner Foote's decisions, while not lengthy, were by no means the mere formal paragraphs stating his action, without a line of explanation, so constantly employed by his predecessor in office. His training on the bench is evidenced in all his holdings and his elucidation of the legal principles involved made his decisions of value to those having later to determine similar issues.
After leaving office, Commissioner Foote resumed the practice of patent law.
A phase of Judge Foote's activities not yet touched upon was his interest in pure science and mathematics, he having written a work on the calculus and a number of papers, based on original scientific investigations, which he read before scientific societies.
The death of Judge Foote occurred at the home of his daughter, Mrs. Henderson, the wife of the distinguished Senator from Missouri, John B. Henderson, in St. Louis, on October 22, 1883.
*Republished with permission of the Patent and Trademark Office Society from the article Biographical Sketches of the Commissioners of Patents, 18 J.P.O.S. 145 (1936). The United States Patent and Trademark Office is grateful for the Society’s assistance.