CHAPTER VII.

LETTERS PATENT.

185. Proper liberality of construction.

186. Proper strictness of construction.

187. Construction in the light of contemporaneous understanding of the inventor.

188. Construction in the light of contemporaneous statutes.

189. Questions of construction are questions of law, and not of fact. 190. Letters patent presumed to be for same invention as the application therefor.

191. Letters patent are constructive notice of their contents to every person.

§ 149. No inventor has any special right to his invention at common law. This is not a virtue in that law. It is an imperfection; an omission. That omission is due to the fact that the common law came into being in the middle ages, and in England. New and useful inventions were seldom produced in those ages, and most of those which were produced, were produced in Italy or on the continent of Europe. There was little or no occasion or opportunity in England, for the creation or recognition of any exclusive, or otherwise paramount, customary right in inventions. Even in those countries where new and useful things were more frequently invented, their inventors were oftener persecuted as heretics than rewarded as benefactors. Despotic kings were wont, in many countries, to confer monopolies upon their favorites, regardless of any meritorious right to the things monopolized; and it sometimes happened, in England and elsewhere, that, in pursuance of this practice, a monopoly of an invention was granted to its true inventor. Such a grant, however, was always a matter of kingly grace, and never a matter of legal right. In the reign of James the First, the English parliament limited this exercise of royal prerogative to cases of inventions, and thus laid the foundation of the patent laws of England. The limiting statute did not purport to confer upon inventors, any inchoate right which they might perfect and make absolute by proceeding in any manner pointed out by law. It recognized the power of the king

1 Brown v. Duchesne, 19 Howard, 195, 1856; American Hide and Leather Splitting Machine Co. v.

Machine Co. 4 Fisher, 294, 1870; Rein v. Clayton, 37 Fed. Rep. 356, 1889.

to secure to any inventor an exclusive right to his invention, if his royal pleasure prompted him so to do. But the exercise of that power was so infrequent for more than a century, that Blackstone, in his Commentaries on the Laws of England, devoted but one sentence to the branch pertaining to patents for inventions.

$150. In the United States of America, the superior right of an inventor to his invention has a far better foundation than could be furnished by the prerogative of any king. That foundation is the consent of the people of the United States: a consent primarily expressed in the Federal Constitution, and elaborately defined in the federal statutes. The Constitution was established as the supreme law of the United States, on the twenty-first day of June, 1788. It conferred power upon Congress to promote the progress of the useful arts, by securing, for limited times, to inventors, the exclusive right to their respective inventions.' In exercise of that power, Congress, on the tenth day of April, 1790, enacted the first federal statute on the subject; and provided therein that the exclusive right in contemplation, should be secured to the respective inventors, by means of a written grant from the United States, to be named letters patent. It is the office of this chapter to explain the nature, the extent, and the duration of the right secured by such a document; to outline the general form and necessary characteristics of such a document itself; and to set forth the rules by which such documents are properly construed.

2

§ 151. Patent rights are property.' Therefore their owners cannot be constitutionally deprived of those rights, without due process of law. Due process of law includes

1 Article 1, Section 8.

21 Statutes at Large, Ch. 7, p 109.

Brown v. Duchesne, 19 Howard, 195, 1856; Seymour v. Osborne, 11 Wallace, 533, 1870; Consolidated Fruit Jar Co. v. Wright, 94 U. S.

96; 1876; Cammeyer v. Newton, 94 U. S. 226, 1876; James v. Campbell, 104 U. S. 357, 1881; Marsh r. Nichols, 128 U. S. 612, 1888.

4 Fifth Amendment to the Constitution.

the constitutional judgments and decrees of courts; but it does not include any act of Congress, or of any other legislature. Patent rights, once vested, are therefore incapable of being divested by act of Congress. Nor can Congress do indirectly, that which it is forbidden to do with directness. It cannot destroy nor seriously impair the value of a patent right, under the guise of altering or repealing the existing remedies applicable to its enforcement, any more than it can so treat any other kind of property.'

§ 152. The right of property which an inventor has in his invention, is excelled, in point of dignity, by no other property right whatever. It is equalled, in point of dignity, only by the rights which authors have in their copyrighted books. The inventor. is not the pampered favorite or beneficiary of the government, or of the nation. The benefits which he confers, are greater than those which he receives. He does not cringe at the feet of power, nor secure from authority an unbought privilege. He walks everywhere erect, and scatters abroad the knowledge which he created. He confers upon mankind a new means of lessening toil, or of increasing comfort; and what he gives cannot be destroyed by use, nor lost by misfortune. It is henceforth an indestructible heritage of posterity. On the other hand, he receives from the government, nothing which costs the government or the people a dollar or a sacrifice. He receives nothing but a contract, which provides that for a limited time he may exclusively enjoy his own. Compared with those who acquire property by devise or inheritance; compared with those who acquire property by gift or marriage; compared with those who acquire property by profits on sales, or by interest on money; the man who acquires property in inventions, by creating things unknown before, occupies a position of superior dignity. Even the man

'Barron v. Baltimore, 7 Peters, 247, 1833; Kent's Commentaries, Lecture 24, p. 13; Taylor v. Porter, 4 Hill (N. Y.), 147, 1843.

* McClurg v. Kingsland, 1 How

ard, 202, 1843.

3 Green v. Biddle, 8 Wheaton, 75, 1823; Bronson v. Kinzie, 1 Howard, 317, 1843.

who creates value by manual labor, though he rises in dignity above the heir, the donee, the merchant, and the money-lender, falls in dignity below the author and the inventor. The inventor of the reaper is entitled to greater honor than his father who used the grain cradle; and the inventor of the grain cradle is entitled to greater honor than his ancestors, who, for a hundred generations, had used the sickle. Side by side stand the inventor and the author. Their labor is the most dignified and the most honorable of all labor; and the resulting property is most perfectly theirs.

Lord BACON gave the weight of his opinion, to views somewhat similar to the foregoing. The following is a translation of one of his Latin paragraphs.

"The introduction of great inventions appears one of the most distinguished of human actions, and the ancients so considered it; for they assigned divine honors to the authors of inventions, but only heroic honors to those who displayed civil merit ; such as the founders of cities and empires, legislators, the deliverers of their country from lasting misfortunes, the quellers of tyrants and the like. And if any

one rightly compare them, he will find the judgment of antiquity to be correct; for the benefits derived from inventions may extend to mankind in general, but civil benefits to particular lands alone; the latter, moreover, last but for a time, the former forever. Civil reformation seldom is carried on without violence and confusion, while inventions are a blessing and a benefit without injuring or afflicting any."

§ 153. "Letters patent are not to be regarded as monopolies, created by the executive authority at the expense and to the prejudice of all the community except the persons therein named as patentees, but as public franchises granted to inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein mentioned, the exclusive right and liberty to

1 Novum Organum, Book 1, Section CXXIX.