men's minds. The science of the times was perfectly barren. The artisans were not thinkers, and the thinkers had no acquaintance with the practical arts. There was yet a gulf, partly of social and political and partly of educational creation, separating cultured intelligence and practical industry, which must be allied before there can be fruitful invention.

Nor were the political troubles of the time, succeeded as they shortly were by internal war, favorable to the development of the industrial arts.

Moreover the science of physics was yet to be reduced to rational principles, and new modes of thought to be developed, and this was the slow work of years. The application of science to the practical arts must come later.

It is not to be wondered at then, that, as is observed in the excellent treatise of Hindmarch, “for many years after the passing of the statute of monopolies the arts and manufactures continued in a low state in England; few of the inventions for which letters-patent were obtained were of any value, and the demand for novelties being very limited, no one was tempted to infringe the rights of patentees.”

It is not until the reign of George III that we find the subject of property in inventions attracting public attention. Then the troubles of Arkwright and of Watt, brought the subject of patents into court, and led to the earliest of that series of

judicial reasonings upon the English law of patents, which gives that law what it has of system.

We need not wonder that the early treatment of patents in the English courts was anything but liberal. The subject was a strange one, coming before them at a time when a very clear and high conception of the importance and merit of inventors could hardly exist.

In later years, as the exercise of the inventive faculties became more general and active, and had produced results which forced a perception of the importance and value of original invention upon the public mind, a more liberal treatment of patents crept into the judicial practice; and the English patent law as it stands to-day is for the most part judge-made law, whose doctrines are founded upon reasoning as just and liberal, perhaps, as the bounds of the old legislation forming the text for the judicial commentaries will permit.

The apparent public policy of encouraging improvements in the useful arts, has led to the adoption by most civilized countries of patent systems more or less analogous to that of England.

The earliest to adopt such systems were France and the United States. Our own patent system, first established by Act of Congress, in 1790, and gradually developed and improved by subsequent legislation, is based upon reasoning which

seems, on the whole, peculiarly correct, just, and liberal.

It originated at a time and under circumstances favorable to the development of inventive activity, and which allowed a clear perception of the importance of invention to the domestic progress of the useful arts and its consequent utility to society.

This led to a recognition of the principle of private right which really underlies a patent system, and of the broad difference between patent privileges and monopolies, so called.

A monopoly in its legal and odious sense, implies the taking away of some right from the many, for the benefit of particular individuals. Manifestly, then, the term is not applicable to letters-patent for new inventions; that cannot be taken from the public, which the public has not; a new invention or discovery can become public property, only by communication from the inventor or discoverer; until so communicated voluntarily, it remains the secret property of the latter.

This view of the case shows that into the public policy of patents enter important considerations of public justice, an idea upon which we shall have occasion to dwell more fully in the course of this treatise.

Looking to the question how far our patent system may be adjudged from experience to have proved consistent with the principles of justice and policy upon which it is based, we find, to begin with, that the number of patents issued in this

country, is very largely in excess of that in any other patent-granting country; that there is here a more general and widely-spread inventive activity than elsewhere; that American labor-saving machinery and devices are in demand the world over; and that inventors enjoy in this community, a power and consideration without parallel abroad.

The vast amount of work to be done in developing the resources and industries of this new country, by a comparatively small and scattered population, with moderate pecuniary resources, has made laborsaving mechanism a peculiarly serviceable instrument of power, supplying the place of manual labor with greater accuracy and economy, and so increasing the productive power of capital.

Thus, it is because of its peculiarly manifest utility to the public, that invention has here attained such dignity.

How far has this been brought about by our patent system? or in other words, how far has that system tended to incite and foster the

exercise of ingenuity?

Our Patent Laws are, undoubtedly, the most truly liberal of any. They more clearly than any other recognize the truths that productive industry is the basis of national wealth and power; that such industry will flourish in proportion as it is made a secure source of individual profit; that true invention is intellectual production of the most

beneficial kind, and that, therefore, true policy, which is always just, demands that it shall be made, as far as posssible, a secure source of individual profit.

The benefit of the patent laws has been sought with avidity, and there can be no doubt that the advantages which they hold out have led to a multitude of inventions and novel disclosures, which otherwise had not been made.

But many complaints and criticisms have been directed against the patent laws and their administration (some of them more or less just, no doubt, since an absolutely perfect system of human designing is hardly to be looked for), but for the most part we think fallacious and arising from a misapprehension of the true principles of the law.

This misapprehension, it is believed, is to be traced in great degree to the just favor and consideration with which inventors have been regarded, leading gradually to a somewhat one-sided and partial understanding of the laws affecting them.

CHAPTER II.

GENERAL PRINCIPLES GOVERNING PROPERTY IN INVENTIONS.

IT is our purpose in this chapter to inquire first into the true nature and purpose of patent laws, for it is necessary to ascertain this, before we can look with intelligence into the question of the justice and efficiency of our own law.

The patent laws, as viewed in reference to inventors only, are the means of securing temporary exclusive rights to the use of new and useful inventions, and it is not unnatural that inventors themselves should regard the laws in that light only. So viewing them, regarding themselves as the only parties interested, they will look with impatience and disfavor upon those features in the laws, or the administration of them, which may seem mere embarrassments or impediments in the way of obtaining patents.

Yet this is not a true, because only a partial, view of the subject.

It would be an unprofitable and unnecessary task to touch upon the question of man's natural property in his own original ideas. It is sufficient to recognize the fact that as long as they are locked up in his own breast, they are likely to be of little benefit to himself or any one else; to be of use they must, as a rule, be disclosed; and when once disclosed, they cannot be stamped with the character of individual property, and be identified and protected as such, except through the medium of positive legislation.

But society can be looked to for such legislation only if, and so far as it may be, consistent with the general welfare.

Consequently it is in utility to society that we must seek the reason and justification of positive laws recognizing individual rights in connection with invention.

The progress of the useful arts is a most important branch of the general welfare, and inventors are the chief instruments for the advancement of the useful arts. An inventor is not bound to disclose his invention; he may, if he so elect, keep the knowledge of it to himself, but generally he cannot himself profit by its use, without, in the very act, disclosing it to others, and when thus disclosed, there is nothing in the absence of positive law on the subject to prevent other members of the public from availing themselves of an idea, which has then in a certain sense become public property.

Evidently, in a state of society where for an inventor to disclose his invention is altogether to lose, without return, the special benefit of it, and of the labor and expense he may have bestowed upon it, there is little or no encouragement for the exercise of ingenuity, and the expenditure of thought, time, labor, and money in the bringing to light of new inventions. Men will not willingly sow merely for others to reap.

It may be said that the inventor derives a profit from his original thought, in the advantage which it gives him over competitors, by way of increased facilities or economy in the prosecution of his business. But if he cannot hope to maintain this power longer than he can keep it secret, but must upon accidental disclosure share his advantage with all his competitors, so that he will

then occupy no better position relatively than before, plainly the inducement to invention is small indeed.

It is to be considered, moreover, that in an active condition of the inventive mind, a vast number of original ideas must be produced, which have no relation to the particular employment of the inventors, and for the encouragement of such a general active condition, therefore, some special inducement must exist.

Some few inventions there are which may be practiced in secret, and no doubt valuable and important discoveries have in this way died with their originators, and so been lost to the world. Of such concealment it is desirable that there should be as little as possible, not only because it tends to deprive the public of useful knowledge, but because it tends to destroy confidence, and arouse doubt and suspicion, hampering business, and interfering with peace and good order. The concealment of inventions, where it may appear practicable, will, perhaps, always be to some extent indulged in, but it is evidently impolicy on the part of the public to encourage such concealment, by totally ignoring the Interests of inventors.

The mischiefs, public and private, likely to proceed from compelling inventors to secrecy, have been thus forcibly represented by an accomplished writer:

"A manufacture conducted in se

cret, is at an enormous disadvantage. Processes must be separated, that the workman may not apprehend the mystery; immense wages must be paid to retain them from deserting to competitors; simplicity must be avoided, and expense introduced, for no purpose but to complicate and confuse the methods used. Experiments for further improvement must be avoided, for they would not only tend to disclosure, but to the loss of the outlay incurred in establishing the existing expensive methods. After all, if the attempt to maintain the secret were successful, the public would be no gainers, for it would constitute a strict monopoly, and, unlike a patent, a monopoly that would be lasting either till the secret was discovered, or till it died with its first employers."

To this it need only be added that in such a state of affairs, many important improvements would be forever lost, from the inability of the inventors to undertake the burden of practicing them secretly, and their natural unwillingness to run the risks of disclosing them to persons who might assume that burden.

The relative positions then, of the public and inventors, and the consequences proceeding therefrom, may be thus summarized:

The public is vitally interested in the progress of the useful arts, and to this progress the production and disclosure of original invention are essential: it is the clearest public policy to encourage such production

IIInventors, in producing and disclosing improvements in the useful arts, add materially to the public stock of wealth and power, and are therefore producers of the highest order; and as payment is the rightful consequence of physical or mental labor, time, and capital expended in production, it would seem the clearest public justice that some mode should be provided of remunerating inventors in proportion to the value of their productions and disclosures.

III. From the preceding propositions it follows that the public object of promoting the progress of the useful arts is that which allies the interests of the public and those of inventors. The consideration which passes from the inventor to the public, entitling him to some return, is his contribution to that progress.

We come then to the conclusion that, practically speaking, the rights of inventors, as such, are those created by positive legislation; and that the object of legislation, in creating such rights, is to promote the progress of the useful arts by providing some mode by which inventors may be remunerated for their instrumentality in promoting that progress.

Thus we find the true object of our own patent system in the title of the original act of 1790, and of the succeeding acts: "An Act to promote the progress of the useful arts."