through the region of the formative arts. The Statutes creating and protecting this intermediate state are those known as the Registered Designs Acts, 5 & 6 Vict. c. 100 (Ornamental), and 6 & 7 Vict. c. 65 (Non-ornamental). The degrees by which the one blends into the other are so imperceptible, that "inventors oppressed under the late Patent Laws took refuge under the Utility Designs Act, and we have seen many inventions registered as forms or configurations, whereas it was notorious that the object of the claim was a new mechanical action or contrivance." Patent right owes, indeed, no little of the safety it enjoys in theory at the present moment from its connexion with Copyright, the abolition of the latter never having been seriously mooted by the extremest advocates of laisser faire.i Joint Stock Companies, with special privileges of trade, are classed by Adam Smith and other writers in the same category with the monopoly of a new machine, and Patent right, previously to the time of Lord Eldon, was distinguished from Copyright only by being less favourably regarded. Lord Hardwicke generally mentions them together. He calls the Statute of Anne "a stand h Soc. Arts, First Rep. on the Rights of Inventors, 1851. An extreme instance of the disregard of the proper division of this subject is mentioned by Mr. Turner, p. 11, where an American Patent was taken out for a method of making skeins of cotton look larger. The patent was disallowed, and the device subsequently found its appropriate protection under the Designs Act. Rogers v. Driver (1850), Q. B.; 20 L. J. 31 (hollow brick); Reg. v. Bessell (1850), Q. B.; 20 L. J. Mag. Ca. 177 (ventilator). 1 The question of Patents, as verging upon licences from their identity of origin, the executive, wears a curious appearance in Er parte O'Reily (1 Ves. jun. 112). Lord Thurlow, L. C., was there applied to, and refused to seal a Patent for thirty-five years exclusive representation of Italian operas. The old Patents of the theatres granted to Killigrew and Davenant in the time of Charles II. were, it appears, in fee. * Ed. Playf. iii. 141; (1847) M'Culloch, 3rd ed. 969. Duvergier v. Fellowes (1828), C. B.; 2 M. & P. 413. 1 (1823) Ed. Rev. xxxviii. 289. Source of mis understanding patent rights. ing Patent for authors," and both he and Sir Thomas Clarke treat them as exceptional cases, where, the plaintiff's right appearing upon record or Act of Parliament, he might apply to the Court at once for an injunction, without first establishing his right at law. "I think," says Lord Campbell,m" Letters-patent giving a monopoly for an invention, and Letters-patent creating a trading company, if framed in the same manner, must be construed on the same principle. In the latter class of cases much more caution is likely to be exercised, and the attorney-general will not grant his fiat for the issuing a writ of scire facias without consulting the Board of Trade, by whose advice the Charter is granted." The condition of a Patent in fine is well expressed by the language used on a recent occasion" by Lord Cranworth, when commenting on Lord Eldon's opinion as to the legality of Joint Stock Companies. "It is one of those transactions so consonant to the wants of a growing and wealthy community, which would have forced its way into existence, whether fostered by Law or opposed to it." The very general misunderstanding with reference to with respect to the rights of Patentees is mainly referable to two causes, -the undue importance attached to the form in which they are created and the insufficient attention paid to the relation in which the patentee really stands to the community at large. Attempts to determine its nature by a reference to the origin of property in the abstract have as yet led to no practical result. The question contains in itself so many variable elements, and is so intimately involved with others, as to render any exact definition of it impossible. The general principles, however, on which it stands may be accepted as sound, since they have been m Reg. v. Eastern Archipelago Company, 21 L. T. 35. 1852. "In re Sea, Fire and Life Association, Lords Justices. 1854. adopted by almost every state of modern times of any considerable advancement in civilization and manufacturing art. The law under this head must be regarded as a com- The law to be promise. So far as natural right is concerned, the ap- compromise. regarded as a plication of a law of nature, a philosophical or abstract principle, is capable of exclusive appropriation only so long as the secret of such application is within the inventor's breast. Once passed, it becomes the property of all mankind, and nothing but principles of justice and public policy can be permitted to restrain the instinctive desire of all men to adopt manifest improvements. Whatever therefore the abstract right of the inventor, in order that such property may be of value, society must interfere by imposing penalties and affixing prohibitions on its infringement. In most countries the duration of such property has been reduced to a term of years, as the course most beneficial to public interests. The remarks of a very able writer on the kindred subject of Copyright' apply equally to the case of Patents:-"Society may fairly require as the price of its active protection by stringent enactments that the author should surrender a part of his full right, regarded as a right, according to the principles of natural justice. The great problem of legislation is to determine the point where this surrender Phillips, p. 20; Encyc. Met. viii. 70; Renouard, c. 2, § 3, p. 42. The following European States grant Patents—Austria, Bavaria, Belgium, Bosnia, Denmark, France, Greece, Hanover, Holland, Holstein, Ionian Isles, Lucca, Modena, Moldavia, Norway, Parma, Poland, Portugal, Prussia, Rome, Russia, Saxony, Sardinia, Sweden, Spain, Servia, Sicily, Tuscany, Turkey, Wallachia and Wurtemburg. (Loosey, Recueil des Lois, 1849; Urling on Foreign Pats.) P Wollaston's Religion of Nature, 7th ed. (1750), p. 235. By the Spanish law, the duration of the privilege is graduated with reference to the merit of the grantee, in connexion with the discovery, as the inventor, improver or importer of the subject-matter of the Patent. Curtis on Copyright (1847), p. 23. Patent law essentially based on principle. Injustice of a fixed term for all inventions. ought to be made. It is a mixed question of policy and justice with regard to which no positive rule can be laid down." The nature of this subject indeed with which Patent Law is connected renders its construction on general principles indispensable. The great object of the Law is the encouragement of trade by rewarding improvements in the useful arts. The merits therefore of the invention itself forms the prominent feature in the inquiry; and rules, having for their end the prescription of conditions on which such rewards are to be conceded, can only be applicable to matters scattered throughout the whole province of manufacturing art, by being based on broad principles and interpreted in conformity with the spirit rather than the letter of Legislation. The Statute Law must contain, as it were, formulæ of verification to which we may recur for the elimination of errors accumulated in the course of successive decisions. Finality in detail is impossible. Revolutions occur in the manufacturing world to all appearance so arbitrarily and lead to conclusions so unforeseen as to remove its subjects from the operation of laws framed on other than immutable principles. The imposition of a fixed term for all inventions is a cause of great injustice to the public or the Patentee. Those who have had experience in the working of Patents are aware that fourteen years is too short a time for the remuneration of the outlay and exertions requisite for the establishment of some of the most important inventions; while in others, where the invention becomes immediately remunerative, it is far too long, operating merely as a clog to further improvement." Qu. Rev. (1824), Patents. The privilege conceded to Livingston by act of the Legislature of New York (1798), was that of "constructing, making, using, employing and navigating all and every species and kind of boat or watercraft which might be urged or impelled through the water by the remedy for in Another point on which a reform is much needed is Deficient the remedy of the Patentee in cases of infringement. fringement. The evidence before the Committee showed that in practice his only protection, in a large majority of cases, lay in the honour of those who were interested in infringing it, from the passive nature of the support given by the law to the Patentee. The case of Sir D. Brewster, with reference to the Kaleidoscope, exhibited this very vividly, as one of the rare instances in which a man of science has taken out a Patent for the applications to practical purposes. The Patent ought to have been a source of very considerable wealth. Millions of them were sold in London and cartloads shipped for foreign countries. Had the patent been protected, the patentee's estimate is that he should have received somewhere about 200,0007. In reality he hardly made anything. The reason was thus given :--" And the very fact of the number of manufacturers infringing it made it impossible for you to protect yourself? Ans. The men who infringed the patent were Jews generally. It would have been vain to have gone into a court of law. At that time respectable opticians all paid me for the finer class of instruments which they made. Thus, when I resolved not to protect it at all against this class of pirates, of course I made no application to those regular opticians for the payment of the dues which they had paid previously. Where the infringement is made by a person who has not the means of paying the law expenses which are incurred, no man will think of going into a court of law." The remedy applied for infringement in the case of Suggested imCopyright," might with very great advantage be extended provements. force of fire or steam, in all creeks, rivers, bays and waters whatsoever, within the jurisdiction of this State, for the term of twenty years." (Phillips, 1837, p. 45.) Howard's Patent (sugar), one of the most lucrative ever granted, never even reached Nisi Prius. See Web. on Pat. (1851), Introd. vi. 5 & 6 Vict. c. 45, s. 23. u |