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In stating principles, the exact language of the courts has been used, when practicable. Patent law is growing and progressive, and I have attempted to show its advanced and later phases. All the way through, a prominent aim has been, to adapt the language to the clear comprehension of those who can not be expected to be familiar with the lawyers' vernacular. The hope is expressed, that the book may be of use to the profession in general, as well as to inventors and patentees.
THE SALE OF PATENTS. Co-equal with a patentee's desire to know about his legal rights, is his desire to know how to make his patent pecuniarily profitable. The topic is a commercial one, but of such a nature that an attorney in patent practice must needs become fully conversant with it. Having had frequent occasion to observe the blind way in which many inventors grope about in the vain endeavor to sell their patents, and having had equal occasion to observe the methods followed by business men in dealing with the same inventions and to become acquainted with skillful patent sellers and their methods of procedure, I can but think that the suggestions in the part devoted to the sale of patents will prove of material aid and assistance to those having patents to dispose of.
IN CONCLUDING this personal talk, let me say, that the book has, of necessity, been written at intervals, after the close of days of hard professional work, and it can but have its faults. Let the reader be kind enough to balance my motives against my shortcomings, and, if future editions are called for, I may hope to amend toward that perfection which I would reach.
W. E. S. Hartford, Conn., 1874.
MANUAL OF PATENT LAW.
CHAPTER I. THE NATURE OF A PATENT PRIVILEGE.
ANY, and perhaps the great majority of inventors
have incorrect ideas of the nature of a patent privilege. Starting from false premises, they reason wrongly about various questions that arise, and are never able to comprehend why laws read as they do, or why the courts make certain constructions of the laws. A correct conception of the nature of a patent grant, and of the reasons upon which the patent law is based, will do much to clear up the difficulties of this nature that often beset inventors. The belief is very generally entertained, that inventors have a natural right to their inventions, of the same kind given by the statute, irrespective of the actual passage of the law.
Such is not the fact. 1
The right to the exclusive use of an invention is not a natural right, — that is, pertaining to a man in a state of nature; but, when it exists at all, it is a civil right, pertaining to man under the protection of a civil government.
1 Traite des Brevets D'Invention : par C. Renouard. Phillips on Patents.
All will concede that one natural right of a man is, to have an equal chance with his fellows to gather and amass the goods of this world. Suppose two men, under the protection and control of no human government, to be occupying and cultivating tracts of land side by side. This would be man in a state of nature. For years they plow, sow, and reap in the same manner and with the same rude tools. Finally one of them invents a plow, with which he can cultivate twice as much land in the same time as before, and do it better. There is no principle of natural justice which forbids the neighbor, upon seeing how well the plow works, from making and putting to use one like it. The doing so by the neighbor does not injure the inventor in any possible way. If the neighbor has not the right to make and put to use a plow like the inventor's, he is shut off from an equal chance with the inventor of amassing wealth, and this when his hindrance is no help to the inventor.
Not only this, but the neighbor, at the time the inventor made his plow, might have already begun to ponder upon the poor work done by the old plow, and set about making a better one, and would have soon invented the new plow himself, and thus acquired as good a title to the exclusive use of it as the prior inventor, -a use, however, from which he would be debarred by a person having no better title than himself, a thing that would be clearly unjust.
This last is by no means a merely suppositious case; for patent solicitors and Patent Office examiners well know that the same inventions are made over and over again by independent inventors. The writer has had a great many personal proofs of this assertion. The frequency with which this is done, would be most surprising, were it not another and a recognized fact, that the mind is governed
by laws of action just as much as the body; so that, given a certain invention to produce, and two minds of similar knowledge and habits to produce it, they will be quite likely to travel through the same road to the same result.
“An inventor has no right to his invention at common law. He has no right of property in it originally. The “ right which he derives is a creature of the statute and “of grant, and is subject to certain conditions incorporated " in the statutes and in the grants. If to-day you should "invent an art, a process, or a machine, you have no right
at common law, nor any absolute natural right, to hold that “ for seven, ten, fourteen, or any given number of years,
against one who should invent it to-morrow, without any
knowledge of your invention, and thus cut me and every“body else off from the right to do to-morrow what you “have done to-day. There is no absolute or natural right “ at common law, that I, being the original and first inventor to-day, have to prevent you and everybody else from inventing and using to-morrow or next day the same thing.”
Another reason that militates against the theory that an inventor has any natural exclusive right to his invention, is that, in a state of nature, he would have no power to enforce his rights. In theory, his every neighbor is as strong as he, and combined they are much stronger. It may be urged, that, as the inventor confers a benefit on his neighbor, by giving him knowledge of the invention, the neighbor is bound, in common justice, to make return therefor. This principle is no stronger than the one, that the inventor is bound, in common justice to his fellow-men, to permit them an equal chance with himself to amass wealth, when doing so entails no injury on himself.
1 Am. H. & L. S. & D. Mach. Co. vs. Am, Tool & Mach, Co., 4 Fisher's Pat. Cases, 294.
If an inventor has a natural exclusive right to his inven: tion for one moment, he has it forever; and, if any limit of time can be set to such a right, only infinite wisdom is adequate to so delicate a task. To state the doctrine of natural right thus, is to show that it does not exist. The law has never recognized the doctrine of natural right; for it can not recognize what does not exist.
The Policy of the Patent Law is, primarily, a selfish one on the part of the public, and only secondarily intended for the benefit of inventors, and then as a means to an end only. The Constitution of the United States gives Congress the power “ to promote the progress of “ science and the useful arts, by securing, for limited times, “ to authors and inventors, the exclusive right to their “respective writings and discoveries;” thus showing, in this fundamental legislation, that the object sought is a benefit accruing to the public.?
The theory of the law is, that the promotion of science and the useful arts is of great benefit to society at large, and that such promotion can be attained by securing to inventors and authors, for limited times, the exclusive right to their inventions and writings. That such theory is correct, it is needless to say. It is almost self-evident, or at any rate readily susceptible of proof, that the magnificent material prosperity of the United States of America is directly traceable to wise patent laws and their kindly construction by the courts.
The patent laws promote the progress of the useful arts, in at least two ways: First, By stimulating inventors to constant and persistent effort, in the hope of producing some financially valuable invention; and, Second, By
1 Day vs. Union Rubber Co., 3 Blatch. 500; Kendall vs. Winsor, 21 Howard, 327.