« ZurückWeiter »
legal and scientific knowledge of the requisite order; and of course an inventor, when in this position, will at once call competent Attorneys to his aid. Further description on this head will be useless. We mention it here incidentally because it occurs in the practice of procuring Patents.
In addition to interferences with pending applications they may also be declared where the same occur with already issued patents. When this latter is the case, the application is not declared by the Commissioner to interfere, but the case is rejected, with a reference for reason, to the issued Patent, that having priority as of course. But if an inventor is satisfied that he is prior to the issued patent, he can set it aside on proving his priority of invention, proper pro ceedings of course being first had. We call the attention of inventors to this fact, so that if they have cause to think that they have priority as to time, they need not give up their invention because they have been refused a Patent on the ground of a previously issued one. r. Of Caveats. This is an instrument, the use and value of which appears to be very little understood by inventors, and what is more singular, what they do generally understand of it is precisely what it in reality is not, in any sense whatever. To explode the cherished idea at once, we say that a caveat is not a short and cheap, though imperfect Patent. It has not the least resemblance to a Patent, nor is it intended that it should have ; it does not afford the slightest protection whatever. How this delusion got abroad we do not see, as there is not a vestige of any such idea in the Law; and he who looks to the filing of this instrument in the Patent Office for pro tection, will do so in vain.
There are a very few instances in which a caveat is useful, and those are where the Law contemplates its use, viz : in cases where the invention is still undergoing experiment, and these experiments have to be more or less public, so as to risk imparting the ideas entertained, to the ingenuity of others. The caveat, if otherwise applied, will only land you fairly in a combat with some one else for priority of title, and this contest can be just as well carried on after your antagonist has got his Patent as before. (See preceding section on interfering applications.)
There is one further use however of a caveat, and that is as a record of date; even in respect to this feature there are few inventors who cannot go behind his caveat as to time, by producing living evidence anterior to it, which is all the caveat can do.
Many inventors file caveats for inventions which are already complete, supposing they thereby derive full protection for one year, at a less cost than the Patent. To such we say this is a useless procedure, and is not the proper use of the caveat. When an inventor has completed his invention the Law supposes him ready for his Patent. If a Patent once obtained could not be superseded, there would then be a very great use of a caveat, as is the case in England. But, for aught we can see, it is in almost any case a useless instrument. Those who would see precisely what a caveat is in the United States Patent Law, will refer to Sec. 12, 1836, and then compare it with those clauses respecting interferences, &c., and we think he will arrive at the same decision we have.
Of the sale or public use of an invention prior to application for Letters Patent therefor.-An inventor has a perfect right to expose his invention to the public without any abandonment of the same ; and also to sell the machines, or other articles invented; for the space of two years. We are proud to say that this admirable feature exists in the American Law; yet inventors should be cautious how they act under it, for although they can, by means of sufficient evidence oust an opponent, this can be done only at much expense and vexation, and he may, too, prove unsuccessful, although right, for we all know the uncertainties of decisions in Law. At any rate, why tempt rivalry by an unnecessary exposure of your invention, especially if it is likely to prove valuable. Your success makes reality of a hundred productions precisely the same as yours, but which as yet lodge only in as many different craniums. You have established a fact for them; they at once ascertain whether you have a Patent-if discovering that you have not-of course they arrive at the conclusion that you got the idea from some of them; and the consequence is, you have a costly contest for priority; whereas, bad you gone quietly on and got your Patent first, you would have first established your right to your invention, and enjoyed its emoluments without rivalry. There is another idea which belongs to this clause in the Law, and that is, where inventors are poor, the intention is to afford them an opportunity to sell so much of their invention as will enable them to get their Patent secured. It was never designed that the Law should give sixteen years to the Patent; that is, allow an inventor to bring into extensive use his invention for two years, and then grant him fourteen years more. Although this sometimes is and can be done
and the words you gone quietly right to your in venother
without infraction of the letter of the Law, it is entirely against its spirit, and we are very much of the opinion that where this can he, proved to have been the case, the Patent might be attacked on the ground of abandonment to the public. There is another way in which it would be dangerous to expose an invention too much ; and that is, where an inventor has made a discovery of some machine or apparatus for the rapid production of some article in demand in the market, and which single machine, or a very few of them, would manufacture the full supply requisite. Now, as any one person, or any corporation who could get a knowledge of the invention, and should put it into operation before the inventor applies for a Patent, he could use the same without “ liability ttherefor to the inventors” under his Patent; he will at once perceive that the value of his monopoly or “exclusive privilege” would be very much reduced, if not wholly destroyed, as the other machine or machines previously built are not under his control, and of course the competition in the article would reduce its value to the common level of other like things. .
The safest way for an inventor to do, when he is obliged to resort to the aid of capitalists, is to make a fair arrangement with one for a part ownership. He can, under the Law, make full or 'partial assignments, which, when properly recorded in the Patent. Office, gives as full title to property in the invention as if done after the issue of the Patent. This way we recommend above all others respecting public introduction into the market.
Of Appeals from the Decision of the Commissioner of Patents Of the Surrendering Defective Patents and their Re-issue under Amended Specifications— Of Disclaimers Of Memorandums of Additions and Alterations of the Recovery of Money paid into the Patent Office by mistake-Of Extension of Patents beyond fourteen years-Of Extension of Patents by Congress-Of Injunctions and Action for Infringement, Of Special Assignments, fc., we do not treat in this work.
STATUTES OF ENGLAND
RELATING TO LETTERS PATENT*..
'18 Hen. VI. c. 1. [A. D. 1439.] “ WHEREAS, by suit made to the King by divers persons, it hath been desired by their petitions to have offices, farms, and other things of the gift and grant' of the King by his gracious letters patents thereof to them to be made, desiring by the same petitions the same letters patents of the King to bear date at a certain day limited in the same, the which day is often long before the King's . grant to them made upon their said petitions, whereby the King's letters patent to them thereupon made have borne the same date, by reason whereof divers of the King's liege people having such offices, farms, and other things of the gift or grant of the King by : his gracious letters patents thereof to them long time before duly made, by such subtle imagination of such ante dates desired by such petitions of such offices, farms, and other things, often have been put out, removed, and expelled against right, good conscience, and reason.” Our said Lord, the King, willing to put out such imaginations, by the advice and assent of the Lords spiritual and temporal aforesaid, and at the special request of the said Commons, hath ordained, by authority of the same Parliament, that of every warrant hereafter sent by the same, our Lord the King, ori his heirs, to the Chancellor of England for the time being, the day of the delivery of the same to the Chancellor shall be entered of record in the Chancery. And that the Chancellor do cause letters patents to be made upon the same warrant bearing date the day of the said delivery in the Chancery, and not before in anywise. And if any letters patent be from henceforth made to the contrary, they shall be void, frustrate, and holden for none.
* Note.-The Statute of 1623 repealed all previous laws in regard to Patents, and then provided a new code for especial purposes inclusive of Patents for inventions and discoveries in the arts and manufactures. Nevertheless, we have given the earlier statutes in order to show the origin of Patents, on all subjects, and in all countries.-Eds.
27 Hen. VIII. c. 11. [a. D. 1535.] An Act concerning Clerks of the Signet and Privy Seal. " Whereas the King's clerks of his Grace's Signet and Privy Seal, giving their daily attendance for the passing and writing of his Majesty's great and weighty affairs, and the causes of this his realm, having for their entertainment and their clerks no fees, nor wages certain for those offices other than such fees as cometh and groweth of the said Signet and Privy Seal, to the intent that from henceforth they should not by any manner of means be defeated of any part or portion of the same, their fees :" be it therefore ordained, established, and enacted, by the consent and assent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by authority of the same, that all and
every gift, grant, and other writing, which shall be made or given The King's in writing by the King's Highness, or any of his most noble pos?"ant* shall be terity, to any person or persons signed with his Grace's sign, or brought to the head secretary or to
to the sign or signs manual of any of them, to be passed under any a clerk of the his Grace's great seals of England, Ireland, Duchy of Lancaster, signet. or any of his Highness's counties, palatines, or principality of
Wales, or by other process, out of the Exchequer after the fifteenth day of April, in the twenty-seventh year of his most noble reign, and that all and every gifts, grants, and other writings of what name or names, quality or qualities soever, the same may be or hereafter shall be named, deemed, or called, which the master of the King's wards, or general surveyors of the King's lands for the time being, or any other officer or officers that now be or hereafter shall be made, shall by virtue of an Act of Parliament, or any of the King's grants to them, or any of them made or hereafter to be made in that behalf, give, grant, or make after the aforesaid fifteenth day of April, to any person or persons in the King's name to be passed under any of his Majesty's seals, be in anywise first and before the same grant, or any of them, be passed under any the King's said seals or other process made of the same, brought and delivered to the King's principal secretary, or to one of the King's clerks of his Grace's signet for the time being, to be at the said
office of the signet passed accordingly. A warrant by 2. And be it also ordained and enacted by the authority aforethe clerk of the said, that one of the clerks of the said signet to whom any of the signet to the Lord keeper
er said writings, signed with the King's most gracious hand, or the of the Privy
hand of any other aforesaid, or any of them fortune to be deliverSeal. ed, may and shall, by warrant of the same bills, and every of them
within the space of eight days next after he shall have received the same, unless he have knowledge by the said secretary or otherwise of the King's pleasure to the contrary, make or cause to be made in the King's name, letters of warrant subscribed with the hand of the same clerk, and sealed with the King's signet, to the Lord keeper of the King's Privy Seal for further process to be