make and use, and vend to others to be used, their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit, as contemplated by the Constitution and sanctioned by the laws of Congress." Such is the accepted doctrine as formulated by Justice CLIFFORD when speaking for the Supreme Court.' The same ideas were more concisely expressed in an earlier case by Justice DANIEL.' Speaking of the inventor's exclusive right, he said: "This was at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects." Writing an opinion of the Supreme Court, and referring to the doctrine of patents, Justice MILLER said: "It is no longer a scarcely recognized principle, struggling for a foothold, but it is an organized system, with well-settled rules, supporting itself at once by its utility, and by the wealth which it creates and commands."' These opinions of the Supreme Court agree, therefore, in holding, with all fair and thoughtful men, that patent-rights are not hurtful monopolies, but are rights of property at once dignified, honorable, and strong.

§ 154. A patent-right is an absolute, and not a qualified, right. During the term of his patent, a patentee may, if he pleases, decline to allow any other person to make, use, or sell the invention which it covers, and at the same time may refrain from making, using, and selling his invention himself. From July, 1832, until July, 1870, there was an exception to this rule. Under the statute of 1790, aliens, as well as citizens, might receive United States patents;'

1 Seymour v. Osborne, 11 Wallace, 533, 1870.

? Kendall v. Winsor, 21 Howard, 322, 1858.

Merrill v. Yeomans, 94 U. S. 573, 1876.

4 Pitts v. Wemple, 1 Bissell, 93, 1855; American Bell Telephone Co. v. Service Co. 45 Off. Gaz. 1193, 1888.

51 Statutes at Large, Ch. 7, Section 1, p. 109.

2

but the statute of 1793 confined that privilege to citizens of the United States.' The statute of 1800 extended the right to aliens who had resided two years within the United States, and provided that patent-rights should be obtained, used, and enjoyed by such persons, in as full and ample a manner, and under the same conditions, limitations, and restrictions, as in the case of citizens. That continued to be the state of the law on the point till July 13, 1832; when Congress provided that still another class of aliens might have patents: namely, aliens who were residents of the United States, and had declared their intention, according to law, to become citizens thereof. It was, however, expressly provided that any patent, granted to an alien of this class, should determine and become absolutely void, without resort to any legal process to annul or cancel the same, in case of failure on the part of the patentee, for the space of one year from the issuing thereof, to introduce into public use in the United States the invention covered by the patent; or in case such public use be discontinued for any period of six months; or in case of failure of the patentee to become a citizen of the United States as soon as the law allowed. Four years later, however, this statute was repealed by that of 1836. The latter statute extended the right to obtain United States patents to all inventors; but it provided that an effectual defence to an action for infringement might be based on the fact that the patentee, if an alien at the time the patent was granted, had failed and neglected, for the space of eighteen months from the date of the patent, to put and continue on sale to the public, on reasonable terms, the invention for which the patent issued. But no such qualification of any patent-right is contained in the consolidated Patent Act of 1870, nor in

11 Statutes at Large, Ch. 11, Section 1, p. 318.

22 Statutes at Large, Ch. 25, Section 1, p. 37.

3 4 Statutes at Large, Ch. 203,

Section 1, p. 577.

45 Statutes at Large, Ch. 357. Sections 6 and 15, pp. 119 and 123.

16 Statutes at Large, Ch. 230, Section 61, p. 208.

the Revised Statutes; so that the rule stated at the head of this section applies to nearly all existing patents.

§ 155. No State has any power to make a law interfering with the sale of any patent-right,' but every State has power to regulate the making, the selling, and the using of the things covered by any patent-right, to the same extent that it lawfully regulates the making, selling, and using of similar unpatented things. Things covered by patents are as much subject to the revenue laws,' and other public laws of a State or municipality, as any other things. A patent for a dynamite powder, or for a deadly poison, or for an explosive oil, does not oust nor affect the power of local authorities to prescribe the place and manner of the manufacture, storage, and sale of those dangerous substances. Nor does a patent on a sewing-machine exempt the patentee from any State tax on the machines he may make, use, or sell within the boundaries of that State. The reason why a State may regulate the sale of a patented thing, and may not regulate the sale of the patent covering that thing, is explainable as follows. A patentee has two kinds of rights in his invention. He has a right to make, use, and sell specimens of the invented thing; and he has a right to prevent all other persons from doing either of those acts. The first of these rights is wholly independent of the patent laws; while the second exists by virtue of those laws alone. A patentee therefore holds the first of these rights subject to the police powers, and the taxing powers, of the State; while the second, being the creature of the laws of Congress, is wholly beyond State control or interference."

§ 156. Patent-rights, being, as they are, intangible prop

Revised Statutes, Section 4920. *Ex parte Robinson, 2 Bissell, 313, 1870; Castle. Hutchinson, 25 Fed. Rep. 394, 1885.

Webber . Virginia, 103 U. S. 347, 1880.

4 Patterson. Kentucky, 97 U. S. 505, 1878.

5 Bloomer v. McQuewan, 14 Howard, 539, 1852; In re Brosnahan, 18 Fed. Rep. 62, 1883; United States v. Bell Telephone Co. 29 Fed. Rep. 43. 1886.

6 May v. County of Buchanan, 29. Fed. Rep. 473, 1886.

erty, cannot be seized and sold under the authority of any writ of fieri facias, or other common-law execution.' They may, however, be reached by a creditor's bill in equity, and thus be applied to the payment of the debts of the owners; the same as trust property, choses in action, or stock of a debtor in a corporation, may be reached and applied. A court of equity may, in pursuance of its powers in such cases, decree that the debtor patentee pay the judgment upon which the bill is based, or, in default thereof, that his patent-right be sold under the direction of the court, and an assignment thereof be executed by him, and, in default of his executing such an assignment, that some suitable person be appointed trustee to execute the same in his place."

§ 157. Patent-rights are exclusive, not only of citizens and residents of the United States, but also of the government itself, and of its agents. The government has no more right than any private citizen, to make, use, or sell a patented invention, without the license of the patentee.' When the government grants letters patent for an invention, it confers upon the patentee an exclusive property therein, which cannot be appropriated or used by the government itself, without just compensation, any more than land which has been patented to a private purchaser can, without compensation, be appropriated or used by the government.*

§ 158. No patent-right covers any use or sale of any specimen of the patented thing, which was purchased of the inventor, or made by another with his knowledge and consent, before his application for a patent therefor.' Where another than the inventor, surreptitiously obtains knowledge

1 Stephens v. Cady, 14 Howard, 528, 1852; Stevens v. Gladding, 17 Howard, 447, 1854.

Ager v. Murray, 105 U. S. 126, 1881.

3 United States v. Burns, 12 Wal⚫ lace, 252, 1870; Cammeyer v. Newton, 94 U. S. 234, 1876; McKeever v. United States, 23 Off. Gaz. 1527,

1879.

4 James v. Campbell, 104 U. S. 356, 1881; United States v. Palmer, 128 U. S. 271, 1888.

5 Revised Statutes, Section 4899; Wade v. Metcalf, 129 U. S. 202, 1889; Duffy v. Reynolds, 24 Fed. Rep. 858, 1885.

of an invention, and, without the consent of the inventor, makes a specimen of the invented thing before any patent thereon is applied for, that specimen is covered by a patent for that invention, as truly and as fully as it would be if it had been made by an infringer after the date of that patent. Such a case is clearly outside of the rule just stated, and of the statute upon which that rule is based. Indeed Justice STORY,' and afterward the full Supreme Court,' held such a case to be outside the corresponding provision of the Patent Act of 1839,' though that provision did not literally exclude such a case.

Where another than the first inventor, re-invents and constracts a specimen of an invention, before any patent is applied for thereon, and does so without any knowledge of the inventor, or of his doings, and without the knowledge or consent of the inventor himself, he cannot invoke the rule stated at the beginning of this section; because knowledge and consent of the inventor is an express element in the statute which supports that rule. If, however, such a reinvention and such a construction occurred before July 8, 1870, the thing so constructed is outside of any patent afterward applied for, because the Patent Act of 1839 can be invoked in its behalf, and because the corresponding provision of that act was not limited to cases where the inventor had knowledge and gave consent. Where such a re-invention and construction occurred after July 8, 1870, it is probable that the specific thing, so constructed, is taken out of the operation of a patent afterward applied for, by the direct action of the fifth amendment to the Constitution of the United States. That amendment provides that no person shall be deprived of property without due process of law. Things independently re-invented and innocently made, before the first inventor applied for a patent thereon, are the lawful property of him who thus made them. To deprive

1 Pierson. Screw Co. 3 Story, 402, 1844.

2 Kendall v. Winsor, 21 Howard,

326, 1858.

* 5 Statutes at Large, Ch. 88, Section 7, p. 354.