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THE following brief essay on the Patent System of the United States contains information which the writers believe has not heretofore been collected in a treatise of reasonable compass. To obtain such information inventors have been compelled to resort for some items to the Patent Laws, for others to the Rules and Regulations of the Patent Office ; while others of great importance have been, to all practical intents, locked up in elaborate volumes to which none but a professional man could be expected to give the requisite time and attention.
The aim in the following pages has been, in part, to collect and condense information concerning the general features of the law, illustrating it, where necessary, by reference to general principles.
In doing this it has been pertinent to enter at some length into those questions of public justice and policy upon which property in invention is founded, and to explain the true position of inventors in relation to the public.
Official examination, previous to the grant of patents, has been treated at some length, and necessarily in a controversial way, the endeayor being to meet, in a fair and scrutinizing spirit, the usual objections to the system, to point out wherein it may be really deficient, and how capable of remedy these deficiencies are.
We believe that the question is fairly stated, and candidly considered, and we trust that our readers will conclude with us that whatever may have been the defects in the examining system, they are susceptible of remedy, and that all defects admitted, the system may yet be regarded as one of the most efficient of those causes which have given patent property, here, a certainty and commercial value, such as it possesses in no other patent-granting country.
It is proper to state that our remarks upon the main defect, want of uniformity, in the examining system, and our suggestions as to the remedy are for the most part based upon observations made by the Hon. M. D. Leggett, the present able Commissioner of Patents, who, while keenly alive to the defect alluded to, is not in the least doubtful of the feasibility of measures by which it may be remedied.
To the facts and arguments adduced in support of the examining system additional point is given, by reference to foreign testimony as to the evils arising from the grant of patents without previous examination. It was considered pertinent to do this, because, recently, it has been hinted in sundry quarters that the abandonment of previous examinations would be a desirable improvement in our law. That such a change would be anything but desirable we think our readers can hardly fail to conclude, when they peruse the weighty evidence collected in these pages against a haphazard, undiscriminating grant of patents.
The concluding chapters of the treatise touch upon other leading features in our patent law. Disclaimers, reissues, caveats, interferences, suits for infringement, &c., are treated of, necessarily, with great brevity, but not too briefly, it is hoped, to convey that rudimentary knowledge of the subject which every person interested in patent property should acquire.
Anything like the thoroughness of a legal text-book is, of course, not to be expected within so brief a compass, and in fact anything beyond generalization has been carefully avoided, the object being simply to map out those common principles and incidents which are of everyday application in dealing with property in original invention.
In the book is incorporated the text of the law concerning patents, trade-marks, and copyrights; those sections of the law bearing upon questions treated in the body of the book being there referred to by number.
It is hoped that inventors and patentees will find the treatise a serviceable manual of information touching matters greatly concerning their interests.
H. & C. HOWSON.
pecially, of any extraordinary instruments of taxation-monopolies in trade or art, or in the making or vending of necessary or useful articles, were utterly abhorrent.
But the declaratory character of this statute shows that previously, at common law, it was recognized as a lawful prerogative of the Crown to grant to the inventors of new manufactures the sole right, for limited periods, of working such manufactures within the kingdom, and records of such grants are to be found, dating so far back as the time of Edward III. As explained by Lord Eldon, this
a prerogative vested in the Crown as the depositary of the supreme executive power of the state, to be exercised in behalf of and for the benefit of the public.
But, as may be well understood, a royal prerogative of granting Patents of Monopolies, so long as its true object remained undefined and its exercise unregulated by express legislation, was exceedingly likely to be diverted from its legitimate uses and employed for the private advantage of the monarch, or of royal favorites, to the grievous disadvantage of the public. And so events proved, for
THE AMERICAN PATENT SYSTEM.
HISTORY OF PROPERTY IN
An inquiry as to the principles and object of the American Patent System, may perhaps be made more clear if introduced by a brief historical retrospect.
The English “Statute of Monopolies," James I, 21st, is the earliest legislative recognition of the public policy of allowing temporary exclusive rights in the exercise of new manufactures. This statute declared utterly illegal and void, those royal grants for the sole buying, selling, working or using of different things within the realm, which, under the name of patents, had become odious from their mischievous and oppressive results. But from the general condemnation of monopolies, the act excepted, under certain qualifications, patents for the sole working or making, during a limited period, of any manner of NEW manufactures, which others, at the time of making such letters-patent should not
To the Anglo-Saxon mind-jealous of anything tending to restrain free action, and jealous, es
during the reign of Elizabeth especially the prerogative was so stretched and perverted as to produce general mischiefand complaint, which finally led to the passage of this Statute of Monopolies, the effect of which is to define the real extent and object of the royal prerogative with reference to the grant of patents affecting the exercise of trades.
It is not our purpose to pursue this historical inquiry further than to point out that the common law of England early recognized the public policy of granting exclusive privileges in the exercise of new trades, and that the public advantage arising from the introduction or discovery
of a new art or trade was regarded as being that which alone warranted such grants.
The words "true and first inventor,” as used to this day in English Patent law, include not only him who may first devise or discover something new, but him also who may first make known within the kingdom something which has been invented abroad.
The reason of this is readily understood when we consider the character of the times in which the English law on this subject may first be traced. The insular position of England and the imperfect, not to say dangerous character of travel, isolated her from the rest of the civilized world. Communication was limited and infrequent, and in every country patriotism took the shape of extreme jealousy of for
eigners. It is not hard to believe, then, that to import knowledge of an art from abroad was no small achievement, but might be regarded as rare merit.
Thus in the Clothmakers of Ipswich case, adjudged in the reign of James I, it is said, “If a man hath brought in a new invention and a new trade within the kingdom, in peril of his life and consumption of his estate or stock, &c., or if a man hath made a new discovery of anything, in such cases the King, of his grace and favor, in recompense of his cost and travail, may grant by charter unto him that he, only, shall use such a trade or traffique for a certain time, &c.”
To the development of invention in the sense of originating and devising, neither the intellectual nor the social condition of these early times was favorable.
The mass of laborers and artisans were little more than human machines, running in one rut, and as a rule lacking the desire or the intelligence to seek to better their modes and means of working, while the intellectual efforts of those of higher rank and educated intelligence were not as yet fairly diverted from the unprofitable channels and mysterious lore of a false and unprofitable philosophy. Bacon's works were but now startling the educated few, and the leaven of that practical and humane philosophy of which he was the first great exponent had yet to commence its work on