It was early held, under that statute, that a grant of a monopoly may be to the first inventor by the 21 Jac. 1; and if the invention be new in England, a patent may be granted, though the thing was practised beyond sea before; for the statute speaks of new manufactures within this realm; so that if they be new here, it is within the statute; for the act intended to encourage new devices useful to the kingdom, and whether learned by travel or by study, it is the same thing. The patent law of France is similar in this respect.13 122 But the American patent law expressly excludes any such construction. The first section, in which the subject of patents is described, does not, in imitation of the English, say that patents may be granted for any art, &c. or any new improvement in the United States. If it had stopped here, however, the question might have been raised, and it would have been open to construction, whether an art, &c. new in the United States, though previously known abroad, did not come within the act. But in the fifth section, setting forth the defences that may be made by the defendant in an action for an infringement of a patent right, to lay the foundation not only for a verdict for the defendant in the particular case, but also for pro 122 Agreed by Holt and Pollexfen. Edgeberry v. Stephens, 2 Salk. 447. 123 Renouard, Paris Edit. of 1825, p. 423, law of 1791, s. 9. curing a judicial declaration that the patent is void, it is provided that for this purpose the defendant may prove "that the thing thus secured by patent, was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery by the patentee." And again in the additional patent act of April 17th, 1800, the first section, authorizing a person, who has been resident in the United States two years, to take out a patent, provides that such person, in making application for a patent, "shall make oath, that such invention, art, or discovery, hath not, to the best of his knowledge or belief, been known or used either in this or any foreign country; and that every patent which shall be obtained pursuant to this act, for any invention, art, or discovery, which it shall afterwards appear had been known or used previous to such application for a patent, shall be utterly void." This law put it beyond all question that an alien, having resided in the United States the requisite period, though he might take out a patent for an original invention, could not take out one for an invention previously known or used in a foreign country. The provisions in the statute of 1793 respecting patents taken out by citizens of the United States, were not so explicit upon this point. Still, as that law requires that the invention should not have been previously known, and declared the patent void if it had been described in any public work, there was no room for the construction that a previous foreign invention or publication did not defeat the patent. In an It has accordingly been uniformly held that there is no difference, as to the effect on an American patent, whether a previous invention and publication took place in the United States or abroad.12 action for an infringement of a patent for making suspenders, the defendant proved that similar suspenders had been used in France and England before the patent was taken out. Mr. Justice Washington instructed the jury that to entitle the plaintiff to recover they must be satisfied that he was the original inventor, not only in relation to the United States, but to other parts of the world. Even if there was no proof that the plaintiff knew that the discovery had been made before, still he could not recover, if in truth he was not the original inventor.125 M. Renouard 126 discusses at length the provision of the French law that allows patents for foreign inventions, and concludes that it is wholly inexpedient. His argument is, that the patentee cannot, in such case, give any equivalent, as in that of an original invention of his own, that has not been known abroad, since the invention, if useful, would be sooner introduced without the right of patenting it. He accord 124 Shaw v. Cooper, 7 Pet. S. C. R. 292, ingly approves entirely the American patent law in this respect.127 Sec. XIX.-DELAY TO TAKE OUT A PATENT. DONMENT OF THE INVENTION. PUBLIC. ABAN DEDICATION TO THE The case of Dolland's invention of an improvement in the telescope has already been mentioned, where Dr. Hall, who had first invented the same improvement, delayed to take out a patent for a long time, and kept his invention secret. Dolland having subsequently made the same invention without any knowledge of its having been previously made by Dr. Hall, took out a patent, which was held to be valid.128 In that case the mere fact of delay, without any act or neglect showing an intention to dedicate the invention to the public use, was held to be a forfeiture of the right to take out a patent as against another who took the proper steps to secure his right. The doctrine of this case seems to have been recognised in a subsequent one.' This principle can hardly be objected to, since the first inventor, if he chooses not to give the public the use of his invention, which the patent law was intended to encour 129 129 Forsyth v. Reviere, Chitty Jr's. Prer. of the Crown, 182, n. age, but to keep it to himself, ought not to have the right to stand in the way of the public interest, and that of any other inventor who is willing to give the public the use of the invention after the expiration of the temporary monopoly provided for by the patent laws. 131 M. Renouard cites from Merlin's Additions to his Repertoire, 10 the opinion that an inventor does not lose his privilege of a patent by delay while he exercises his invention in secret. But M. Renouard thinks a distinction is to be made on this point, being of opinion that if the inventor delivers the products of his invention in the mean time, and others, by examining or analyzing such products, detect the secret, he thereby loses his privilege.' This distinction, however, seems to be by no means contrary to the doctrine laid down in Merlin, as cited by M. Renouard, which seems to admit of the construction that others may not, in the mean time, before the first inventor has taken out his patent, have found out the art or process by the means supplied to them by the inventor for that purpose, by the distribution of the products of his invention. The position, however, of both M. Renouard and the authority cited by him, is, it seems, that the inventor does not forfeit his privilege by mere delay and practising his art in se 130 T. 16, 1824, mot, Brevet d' Invention. 131 C. 5, s. 1, p. 173. |