PATENT

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PATENT, in law, is the exclusive right of using and vending a certain composition or combination of matter, as a medicine or a machine. This right is not derived from the law of nature, as the whole field of inventions and improvements is open to all men, and one cannot monopolize a part of it by prior discoveries. In Miller versus Taylor, 4 Burrow's Reports, 2387, Mr. justice Yates says that the mere labor and study of the inventor wi 1 establish no property in the invention, and no right to exclude others from making the same instrument, and that it is well known that no such property can exist.after the invention is published. By the common law of England, monopolies were declared to be generally void, and patents for new inventions, being,, a species of monopolies, would, according to this doctrine^ be void by that law. But they seem to form an exception to this rule; for it was held that the king could confer on the inventor of any useful manufacture or art the power of using it for a reasonable time. But the law of patents, as it now stands in England, rests upon a statute of 21 Jac. I, c. hi, and in the U. States on statute Feb. 21, 1793, and april 17, 1800. In France, until 1790, inventors were generally obliged to keep their discoveries secret, in order to secure to themselves a small part of the benefit of them. In an early period of the French revolution, a law was passed in favor of new inventions, formed on the basis of the English statute. The French law of Jan. 7,1810, declares that every discovery or new invention, in every species of useful industry, is the property of its author. By what Authority granted. In the U. States, by the constitution, congress is authorized to promote the progress of the useful arts, by securing, for limited times, to inventors the exclusive right to their discoveries. Letters patent are made out by the secretary of state in the name of the U. States, bearing teste of the president. In England, patents are now, as they were before the statute of James I, granted by the crown. What is patentable ? In general, any invention of a new and useful art, machine, manufacture, or composition of matter not known or used before, or any new and useful improvement in any art, machine, or manufacture, or composition of matter. The invention must be new. In England, a manufacture newly brought into the kingdom from beyond sea, though not new there, is allowed by the statute of James; because that statute allows a patent for any new manufacture within this realm. By the patent law of the U. States, if the thing patented was not originally discovered by the patentee, but had been in use, or had been described in some public work anterior to the supposed discovery by the patentee, or if he has surreptitiously obtained a patent for the discovery of another person, the patent is void. In France, by the law of Jan. 7, 1810, whoever introduces into that kingdom a foreign discovery shall enjoy the same advantages as if he were the inventor. In England, the publisher of an invention is entitled to a patent, whether he be the inventor or not. The subject of a patent must be vendible,in contradistinction to any thing that is learned by practice. The invention must t be material and useful: thus the substitution of one material for another is insufficient to support a patent; as of brass hoops to a barrel instead of wooden ones. So there cannot be a patent for making in one piece what before was made in two. But if one elementary thing be substituted for another, as if that be done by a tube which was before done by a ring, a patent for the improvement would be good. It must not be hurtful to trade, nor generally inconvenient, nor mischievous, nor immoral, as an invention to poison people, or to promote debauchery. Patents for improvements are valid, as for an improved steamengine ; but if the improvements cannot be used without the engine which is protected by a patent, they must wait the expiration of the patent. But a new patent may be taken out for the improvement by itself. In Jessop's case, Godson, p. 72, a patent was held to be void because it was taken out for a whole watch, when the invention consisted of a single movement. A combination of old materials, by which a new effect is produced, may be the subject of a patent. The effect may consist either in the production of a new article, or in making an old one in a better manner, in a shorter time, or at a cheaper rate. A patent may be obtained for a method or process by which something new or beneficial is done, when it is connected with corporeal substances, and is carried into effect by tangible means, as in the case of Watt's steamengine, which was described to be a method of lessening the consumption of fuel in a steamengine. So a chemical discovery, when it gives to the community some new, vendible and beneficial substance, or compound article, is a subject of a patent, as medicines, &c. But a patent for a mere curiosity is void. If the manufacture in its new state merely answers as well as before, the alteration is not the subject of a patent: nor is a mere philosophical abstract principle, nor the application or practice of a principle, the subject of a patent. No patent can be obtained for the expansive operation of steam; but only for a new mode or application of machinery in employing it. Right how lost The inventor may lose his right to a patent by using, or allowing others to use, his invention publicly. It was considered that doctor Hall had not lost the right to a patent for his discovery of the objectglasses, because he had not made it known to others, though it was not immediately patented. If the secretof an invention is known only to a few persons, and one of them puts it in practice, then a patent afterwards obtained by any one of them is void. This happened to Mr. Tennant, because a bleacher, who had not divulged the secret to any other person but his two servants, had used the same kind of bleachingliquor for several years anterior to the date of Tennant's patent. Where a person who sought a patent for making spectacles incautiously told an acquaintance of the principle of the invention, by which means a person of the same trade made a similar pair, and the inventor, seeing them in a shop window, employed a friend to purchase them for him, and the patent was afterwards granted, it was said to be secure. The question does not, however, appear to have been brought before a court, and Mr. Godson thinks that the patent was void. A patent for British imperial verdigris was declared to be void, because the inventor had, four months prior to the sealing of the grant, sold the article under a different name. Whether experiments made with a view to try the efficacy of an invention, or the extent of a discovery, are a using, and dedicating the invention to the public, within the statute of James, has not been decided; but it would be difficult to say how much a substance or machine might be used without running great risk of invalidating the right to a patent. In France, if the inventor do not, within two years, put his discovery into activity, or do not justify his inaction, the patent is annulled. Duration of the Patent. In England and the U. States, patents are granted for a term not exceeding fourteen years. The time in England may be prolonged by a private act, and, in the U. States, by act of congress. In France, by the law already mentioned, patents are given for five, ten or fifteen years, at the option of the inventor; but this last term is never to be prolonged without a particular decree of the legislature. The duration for imported discoveries is not to extend beyond the term fixed for the privilege of the original inventor in his own country. In France, if the inventor obtains a patent in a foreign country after having obtained one in France, the patent is annulled.^ Caveat In England, a caveat is an instrument by which notice is requested to be given to the person who enters it, whenever any application is made for a patent for a certain invention, which is therein described in general terms. It must be renewed annually. It is simply preference may be given to him who entered it. In the U. States, in case of interfering applications for a patent, they are submitted to the arbitration of three persons, appointed one by each applicant, and one by the secretary of state. Specification. The invention for which a patent is granted must be accurately ascertained and particularly described. The disclosure of the secret is the price of the monopoly. The specification must be such that mechanics may be able to make the machine by following the directions of the specification, without any new inventions of their own. The patent and specification are linked together by the title given to the invention in the patent, and the description of it in the specification. The specification must support the title of the patent: thus a patent taken out for a taperingbrush is not supported by the specification of a brush in which the bristles are of unequal lengths. It must point out what parts are new and what old. It must not cover too much: if it does so, it is not effectual, even to the extent to which the patentee would be otherwise entitled ; as, if there be a patent for a machine and for an improvement upon it, which cannot be sustained for the machine, although the improvement is new and useful, yet the grant altogether is invalid, on account of its attempting to cover too much. A patent for a new method of drying and preparing malt is not sustained by a specification in which is described a method for heating, &c, readymade malt: so a patent for an invention founded on a principle already known, for lifting fuel into the fire grate from below the grate, in the specification whereof was described a new apparatus, was held to be bad for not claiming the new instrument as the thing invented: so when a patent was " for a new method of completely lighting cities, towns and villages," and the specification described improvements upon lamps, the patent was held to be void. The subject must be given to the public in the most improved state known to the inventor. A patent (in England), for steel trusses was held to be void, because the inventor omitted to mention that, in tempering the steel, he rubbed it with tallow, which was of some use in the operation. The specification must not contain a description of more than the improvement or addition. If there be several things specified that may oe produced, and one of them is not new, unnecessary to produce the desired effect, it will be presumed that it was inserted with a view to perplex and embarrass the inquirer: thus, in 1 Term Reports, 602, in Turner's patent for producing a yellow color, among other things, minium, is directed to be used, which, it appeared, would not produce the desired effect, and, for this reason, the validity of the patent might be impeached. In the specification of Winter's patent, 1 Term Reports, 602, a great number of salts were mentioned, by which it appeared that either might be used to make the subject of the patent, but only one would, in fact, produce the effect; and, for this reason, the patent was held to be void. If the patentee makes the article of cheaper materials than those which he has enumerated in his specification, although the latter answer equally as well, the patent is void. In England, if the improved manner of using the invention be unintentionally left undescribed, still the patent is void. In the U. States, it has been held by Mr. justice Story that the patent is not avoided, unless the defect arose from an intention to deceive the public. (1 Mason's Reports, 189.) In France, the general rules, in these respects, are similar. Enrolment. In England, a patent is void unless it is enrolled. The time allowed for the enrolment is now generally confined to one month. Enrolment cannot be dispensed with, though it be to keep the specification secret. After a patent has passed, the time for enrolment cannot be enlarged without an act of parliament. In the U. States, the patent, after the seal of the U. States is affixed, is recorded in a book kept for the purpose. Infringement Whether any act is really an infringement of the patent, is a question for the jury. The using the least part of the manufacture is an infringement. In Manton v. Manton, the infringement consisted in making a perforation in the hammer of a gun in a direction a little different from that in the patent article. If the article manufactured be of a different form, or made with slight and immaterial alterations or additions, if the manufactures are really and substantially the same, the patentee is entitled to a remedy, as where the position of the different parts of a steamengine were reversed. Where several independent improvements are made in the same machine, and a patent is procured for them in the aggregate, the patentee is entitled to recovei against any person who shall use any one of the improvements so patented, notwithstanding there shall have been no violation of the other improvements.Remedy for Infringement. The remedies for infringement, in England, are by an action at law for the damages, or by proceedings in equity for an injunction and account. The remedy sought in equity is for instant relief, and it is often preferable to proceed in equity before a suit is commenced at law. In the U. States, the circuit court has original cognizance, as well in equity as at law, in regard to patents, and may grant injunctions. The damages for a breach of the patent right, in the U. States, are three times the actual damage sustained by the patentee: the jury are to find single damages, the court are to treble them. In France, the patentee, in case of infringement, shall recover the damage he may sustain, and a penalty for the benefit of the poor, not to exceed 3000 francs, and double in case of a second offence. Repeal. If a patent be void, in England, the king may have a scire facias to repeal his own grant. All persons are injured by the existence of an illegal patent for an invention, and every one is therefore entitled to petition for a scire facias to have it cancelled. Patents are repealed, in the U. States, by a process in the nature of a scire facias.Who may obtain a Patent. Aliens who have resided two years in the U. States are allowed to obtain patents under the act of 1800, on their making oath that the invention has not, to the best of their knowledge or belief, been used in this or any country. The English law has no restrictions on this head, and it is every day's practice to grant patents for new inventions to Americans and other foreigners. (See Literary Property.)