sent as a solution the hypothesis he rejects. Yet David Hartley's case is explicable on general principles of Patent Law. To be consistent with the theory on which Patent protection exists the Patent should have been "for buildings constructed on fire-proof principles." This was the monopoly virtually granted to the Patentee, and necessarily involved all the rights to which he could be considered entitled. The inaccurate use of words has led to a gradual confusion of ideas, and obliterated the broad distinction between a "discovery" in point of fact and an "invention" in point of Law. In this case the "discovery" was that of principles of matter, the "invention" an object of commerce, to which those principles had been applied. And similarly with regard to all cases in which material improvements have been made. Such language from the Bench had the effect of countenancing and consolidating the errors originating in popular inaccuracy, and later judges following in the same course have striven rather to regulate the inconsistencies they found than to address themselves to the cause and thus prevent the possibility of their recurrence. Writers on this subject have on this head followed up Writers on the the course indicated by the Bench. Mr. Godson* consubject. Godson. siders it an open question, whether a mere method of making a thing or a process, or a manner of operating, may or may not be the subject of a Patent;" and gives it as his opinion," "that although neither philosophical principle nor a mere method or process can be monopolized, yet a principle, method or process, when it is connected with corporeal substances, and when it is carried into effect by tangible means, may be the subject of a Patent." On Patents, 2nd ed. 72, 84. x ☐ Ibid. 91. * 2 H. Bla. 463; 8 T. R. 101; 2 B. & Ald. 350; Jupe v. Pratt (1837) Web. P. R. 146; Neilson v. Harford, lb. 355. Wordsworth. Turner. 2 Mr. Wordsworth adduces Gibson v. Campbell to show that "a Patent may be obtained for a mere process. So also for improvements in the mode of doing anything by a known process." Mr. Turner, in treating of the "invention," draws a distinction between the principle and the form involved in its construction. "In Crossley v. Beverley," he remarks, "it was said that there might be innumerable forms of an invention, but in fact, beyond a limit which is soon reached, variation would make the principle not worth employing. There is always one best form which supersedes its rivals in the race of competition. Deviation from this is injurious in an increasing ratio." The case of Lewis v. Davisd is adduced by Mr. Godson as "very important in showing what combination or arrangement of things already known,' may be the subject of the grant." Cloth had, previously to the Patent in question, been cut from end to end by rotatory cutters. The point in issue was, whether the plaintiffs could have a grant for cutting cloth from list to list. The Lord Chief Justicef said, "It appears that a rotatory cutter to shear from end to end was known, and that cutting from list to list by means of shears was also known. However, if before the plaintiff's Patent the cutting from list to list and doing that by means of rotatory cutters were not combined, I am of opinion that this is such an invention as will entitle them to maintain the present action." In truth, the difficulties here were, that the subject matter of the grant was not really what the plaintiff sought to enforce. If the cloth made was improved by the alterations, it was that improved cloth of which he claimed to be the monopolist, and that should have a 11 Law J. (N. S.), 177, C. P. z (1853), p. 13. b Turner on Patents, p. 8. c Cited Web. P. R. 146. d (1829) K. B., 3 C. & P. 502. e On Patents, 2nd. ed. 66. f Lord Tenterden. formed the subject of the grant. If on the other hand the changes were immaterial in their result, the whole was a mere colourable variation, and unpatentable. The attempts of Lord Abinger, in Losh v. Hague, to Losh v. Hugue. decide the question by a distinction between applying a new contrivance to an old object and an old contrivance to a new use, proceeded to the length of asking whether a purpose' be the thing patented. The illustrations of a surgeon improving a pair of scissors on the one hand, and a man taking out a Patent to eat peas with a common spoon, or common scissors to cut silk instead of cloth, on the other, are perfectly capable of explanation. Improved scissors or an improved spoon are both good subjects of a monopoly; but once sold, they become the property of the public, and no restraint can be put upon their use. In Neilson v. Harford, the discovery consisted in the effects of the hot blast for smelting, by heating the air between the blowing apparatus red hot or nearly so, by the application of heat without the vessel, so as to prevent the loss of oxygen. It was said, if a specific shape of heating vessel was claimed, then the Patent was good; but if every shape was claimed, then that it was a claim of the principle, for that there was no difference between claiming every application of a principle and claiming the principle itself. Alderson, B., there said, that the difficulty which pressed upon his mind was, that Neilson had taken out his Patent, like Watts, for a principle, but he had not practically described any mode of carrying it into effect. To be consistent with the theory of Patents, Neilson's claim should have been for the iron improved by his discovery. In Boulton v. Bull, the nature of the subject matter was thus put to the test by Buller, J. "Suppose," (1837) Web. P. R. 207. h (1841) 8 M. & W. 806; Web. P. R. 342; Jupe v. Pratt, Ib. 144. 1 2 H. Bl. 436. Neilson v. Harford. R. v. Wheeler. said he, "an ingenious physician should find out that Doctor James's fever powder was a specific cure for consumption, if taken in particular quantities, could he have a Patent for the sole use of James's powders in consumption, or given in particular quantities." To this there are two answers; first, that, consistently with the theory of Patents here advocated, medicines are expressly declared unfit subject matter;" and, secondly, that this falls within the class of cases in which, after the Patent is at work, some new principle or property of matter is discovered. The "manufacture" is already in the hands of the public, the use it may be led to apply it to cannot be controlled. The remarks of C. J. Abbott, in R. v. Wheeler," serve to show clearly the mode in which the refinements so fatal to the consistency of the Law were introduced. "The word 'manufacture,'" said the learned judge, ❝has been generally understood to denote either a thing made which is useful for its own sake and vendible as such, as a medicine, a stove, a telescope, and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known article, or for some other useful purpose, as a stocking-frame, or a steam engine for raising water from mines; or it may perhaps extend also to a new process, to be carried on by known implements or elements, acting upon known substances, and ultimately producing some other known substance, but producing it in a cheaper or more expeditions manner, or of a better and more useful kind." The idea of a "principle," in connexion with the legal subject matter once introduced, has been a continual source of difficulty in Patent litigation, and the Court has been compelled to approach at last to the recogni n 2 B. & Ald. 349, malt; Crane v. Price (1819), iron, Web. P. R. 413; 12 L. J. (N. S.) C. B. 81. tion of the standard here attempted to be erected, by As a general rule, wherever a discovery is made of a principle or property of matter applicable to the im No appropriation of a principle or pro provement of manufactures, there is good ground for a perty of matter. Patent, provided the subject matter of it be expressed in the proper form. The original discoverer cannot, however, take out a Patent for its general application. Thus Mr. Justice Heath says, "that a Patent could not be claimed for the use of the power of steam. It must be for the vendible matter, and not for the principle." The inconveniences, consequent on considering principle as subject matter of a Patent, were much dwelt on by the learned judge in that case. It would, he remarked, ‘reverse the clearest position of law respecting Patents for machinery, by which it has been always holden that the organization of a machine may be the subject of a Patent, but principles cannot.' P Neilson v. Harford (1841), Web. P. R. 343. 9 (1834) Exch., chairs, 1 C., M. & R. 507, note (i). See alse Barrett v. Hill, Story, J., 1 Mason; Hornblower v. Boulton, 8 T. R. 95 (1799); 5 Tyr. 163; Web. P. R. 134; Carp. i. 639; Rep. Arts, ii. (N. S.) 234. A new application of machinery already known is said by M. Renouard (pp. 175, 459) to be a patentable subject in France. • (1795) Boulton v. Bull, 2 H. Bl. 482. |