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THE LAW OF PATENTS, COPYRIGHT, AND TRADE-MARKS

(PART 1)

INTRODUCTION

SCOPE OF TITLE

1. It is essayed here to treat of those peculiar personal rights, mentioned previously as a class of incorporeal personal property, which are usually only brought into notice. by the necessity of protecting them from wrongful interference.' These rights are the exclusive privileges secured, according to certain legal forms, to inventors or discoverers of new. and useful arts, authors of literary or artistic productions, and the makers and designers of symbols, devices, or emblems by which the wares of tradesmen are identified and known to the trade, all of which are comprised in the terms patents, copyright, and trade-marks. Included in the latter are trade-names, which comprise a species of property of the same nature as trade-marks, and which are protected in a like manner."

That these creations of the individual brain very properly form a class of incorporeal personal property-a third class, although partaking of the nature of the others, as placed in the arrangement of this Course-is fully explained in our general treatment of property. A man's own is property; his labor is property. So, the emanation of his brain,

1 See The Law of Property: Personal Property, Incorporeal Personal Property.

2 33 Am. Rep. 328-335 (1878).

For notice of copyright, see page immediately following the title page

individual thought, manifested in a material thing, is property. The best proof of this is the very existence of individual thought, whether made to become a reality in the form of an invention or discovery, a literary production, or in something that symbolizes or marks the origin and ownership of a particular business. By materializing thought, an achievement takes on the form of property, in the enjoyment of which the proprietor is protected by the law, and for the violation of which he is personally aggrieved and has what is known, and before explained, as a right of action, a phrase frequently employed to denote this class of property.

PATENTS

DEFINITION AND HISTORY

2. A patent is the grant by a government to the author of a new and useful invention, or to his assigns, of the exclusive right of exploiting that invention for a specified term of years; a franchise of a new and useful improvement securing to an inventor for a limited term the exclusive right to make, use, and vend the article or object, as tending to promote the progress of science and the useful arts, and as a matter of compensation for the labor and expense in making and reducing the invention to practice for the public benefit. The grant of a patent is not the exercise of any prerogative to confer upon the subjects of a government the exclusive property in that which would otherwise belong to the common right. As regarded in the United States, it more clearly resembles a contract, which, under constitutional authority, congress authorizes to be entered into between the government and the inventor, securing to him, for a limited time, the exclusive enjoyment of the practice of his invention, in consideration of the disclosure of his secret to the public, and his relinquishment of his invention to the public at the end of the term.*

3 Cent. Dict.

11 Wall. (U. S.) 553 (1870); 32 Fed. Rep. 617 (1876).

1

As originally used in England, the term patent signified an instrument conferring a grant of land, an honor of franchise; it was designated letters patent, from being delivered open, and by way of contradistinction from instruments like the French lettres de cachet, which went out sealed. In the United States, the word patent is sometimes understood to mean the title-deed by which a government, either state or federal, conveys its lands; but, in its more usual acceptation it refers to the instrument by which the federal government secures to an inventor the exclusive privilege or right to his own invention, as herein explained."

3. In England, for many years, the power of granting these exclusive privileges by letters patent was abused by the sovereigns, by conferring the sole right of dealing in certain commodities upon particular individuals, either as a matter of royal favor or as a means of replenishing the royal treasury. This despotic power of the crown made these exclusive privileges extremely odious by the favoritism or mercenary purpose of their granting, and reached its height in the Elizabethan period, proving in many instances superior to the law until the 17th century when the Statute of Monopolies was passed, prohibiting all grants of that nature; but, by letters patent to the inventor of any new manufacture, the king was permitted to secure to such person the sole right to make and vend the same for a term not exceeding fourteen years. Under that statute has grown up the present system of British patent law, from which that of the United States has to a great extent been derived. Other statutes were subsequently passed, but were repealed by the passage of the Patent Act, 1883, which, besides introducing a new procedure, modified the law to some extent, and by which patents are granted to any person, whether a British subject or not.' The inventions for which patents are obtained are chiefly either vendible articles formed by chemical or mechanical operations, such as cloth, alloys, vulcanized india

5 Bouv. Law Dict.

Stat. 21 Jac. I, c. 3; Hallam Const. Hist. 153, 205.

7 Stat. 46 & 47 Vict., 1883, c. 57.

rubber, and the like, or machinery and apparatus or processes. The principal classes seem to be: (1) New contrivances applied to new ends; (2) contrivances applied to old ends; (3) new combinations of old parts, whether relating to material objects or processes; (4) new methods of applying a well-known object."

In the United States, congress is empowered by the constitution to legislate "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." By congressional enactment, any person, whether a citizen or alien, may obtain a patent protection for a term of seventeen years who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, not known or used by others in that country, and not patented or described in any printed publication in that or any foreign country, before his discovery or invention thereof, and not in public use or on sale for more than two years prior to his application, unless the same be proved to have been abandoned. The fact that the invention has been first patented in a foreign country will not debar the inventor from obtaining a valid patent in the United States, unless the same have been introduced into public use in the latter country for more than two years prior to the application.

In the United Kingdom of Great Britain and Ireland and the Isle of Man, by statute, patents are granted to any person, whether a British subject or not." The general principles as to what constitutes an invention or improvement are substantially the same as above stated, and there is a separate statute for each of the principal British colonies.

8 Encyc. Brit.

9 U. S. R. S., Sec. 4,886

10 Stat. 46 & 47 Vict., 1883, c. 57.

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