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About The Conservative (Nebraska City, Neb.) 1898-1902 | View Entire Issue (March 30, 1899)
Conservative. WHAT IS I'ATENTAHLE UNDER TIIK LAWS OF TJIU UNITED STATES. IIY PAUL IIAKKWI'.U , , t.AWVKH , ST. LOUIS , MO. " The invention nil admired , nnd each , how lie To bo the inventor missed ; so easy it seom'd Once found , which yet unfound most would Imvo thought impossible. " Hilton's Paradise Lost , book 0 , lines 400 to 502. The foundation of our patent system is clause 8 of section 8 of article I of the constitution of the United States , in these words : "The congress shall have power to promote the progress of science , and useful arts , by securing , for limited times , to authors and inventors , the ex clusive right to their respective writings and discoveries. " The constitution nowhere defines who is nn inventor , nor what is a discovery , within the meaning of the above quoted clause. The development of this provision of our constitution into stahite law , and the true spirit which should prevail in the consideration of letters-patent granted in pursuance thereof , is no where better stated than by Chief Jus tice Marshall , in 1832 , in delivering the opinion of the supreme courb in the case of Grant v. Raymond ( G Peters , 218) ) in these words : "To promote the progress of useful arts , is the interest and policy of every enlightened government. It entered into the views of the framers of our constitution , and the power 'to pro mote 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' , is among those expressly given to congress. This subject was among the first which followed the or ganization of our government. It was taken up by the first congress at its second session , and an act was passed authorizing a patent to be issued to the inventor of any useful art , etc. , on his petition , 'granting to such petitioner , his heirs , administrators , or assigns , for any term not exceeding fourteen years , the solo and exclusive right and liberty of making , using , and vending to others to be used the said invention or dis covery. ' The law farther declares that the patent 'shall be good and available to the grantee or grantees , by force of this act , to all and every intent and pur pose herein contained. ' The amenda tory act , of 1708 , contains the same language , and it cannot be doubted that the settled purpose of the United States has ever been , and continues to bo , to confer on the authors of useful inventions an exclusive right in their in ventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public for the exertions of. the. individual , and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought , we think , to be construed in the"spirit'-in which "they have been made , and to execute the con tract fairly on the part of the United States where the full benefit has been actually received if this can bo done without transcending the intention of the statute , or countenancing acts which are fraudulent or may prove mischiev ous. ous."The "The public yields nothing which it has not agreed to yield ; it receives nil which it has contracted to receive. The full benefit of the discovery , after its enjoyment by the discoverer for four teen years , is preserved ; and for his ex clusive enjoyment of it during that time the public faith is pledged. That sense of justice and of right , which all feel , pleads strongly against depriving the inventor of the compensation thus solemnly promised. " The constitution of the United States was ordained and established by the people of the United States in 1787. First Law Relating to Patents. In 1790 congress enacted the first stat ute relating to patents , which provided : "That upon the petition of any per son or persons to the secretary of state , the secretary for the department of war , and the attorney-general of the United States , setting forth that ho , she , or they hath or have invented or discovered any useful art , manufacture , enginemachine , or device , or any improvement thereon , not before known or used , and praying that a patent may be granted therefor , " etc. , shall obtain a patent. ( The italics are ours ) . This was the first statutory expression , by those in touch with the framers of our constitution , of what should be pro tected by way of letters-patent , to the end that the progress of science and the useful arts should be promoted. It is clear that these legislators were imbued with the spirit of our constitu tion ; that as they interpreted that spirit , so far as it related to the grant of letters- patent , they attach much importance to utility and novelty ; but that if novelty and utility were present , even to the comparatively slight extent of the thing being any improvement on an old manu facture or old device , the thing was worthy of a patent. No definition , other than as contained in the above , was given of invention , and no special dignity was supposed to rest in the thing invented. If it were new and useful ; if it were a simple im provement in a tooth pick or a rat trap , it as clearly came within the provisions of this act as a complicated steam or electric engine. If the humble inventor had discovered ( brought to light ) "any intyrovement" on an old device or manufacture which made it perform its old functions in a better way or made it perform anew function , by that fact he became entitled , under the law , to a patent ; he was an inventor , whom the framers of our constitution intended - congressto protect , in order that the progress of science and the useful arts might bo promoted. "When such an one disclosed his new and useful device or manufac ture , or his new and useful improve ment on an old device or manufacture , by letters-patent , he had added something - " thing ( it matters not how much or little ) to the stock of useful knowledge , and just that thing , during the limited term of his patent , our legislators , imbued with the spirit of those great minds who framed our constitution , intended he should have to the exclusion of others. This is the spirit of justice and of right interpretation of our patent system which is so eloquently expressed in the language of that great jurist , Chief Jus tice Marshall , in one of the very first patent causes which came before the su preme court for adjudication. Given the fact that the patentee has disclosed by his specification something new and useful , no matter how simple , even though it be "any'1 improvement in an old device or manufacture , when the patent is granted , he is entitled to his new and useful contribution to the stock of useful knowledge , during the term of the patent ; and it would be con trary to a proper sense of justice and of right to deprive the inventor of the- special privileges granted in and by his patent , thus solemnly promised by the government in consideration of his con tribution , by the disclosures in his pat ent , of something which is , in fact , new and useful. At least , this is the voice of the su preme court of the United States , ex pressed by its chief justice , the great Marshall , when our constitution was so new and fresh that many of those who had signed it were still unuibered among the living , and our congress , deriving its inspiration from that great source , had but recently passed the act to which we have referred. Dead Founders. The founders of our government passed away ; a new generation arose. The living voice of the fathers was no longer heard , and their influence was less felt every succeeding year. Judges not imbued with the spirit of the fram ers of our constitution , nor realizing the object of this early legislation , were called upon to render judgment in pat ent causes. Forgetting , or not perceiv ing , that these statutes are entitled to a liberal construction , they have been led away by sophistry which sought to rob the inventor of his covenanted recom pense. As a consequence , an interpre tation has sometimes been given these laws which plays right into the hands of the designing infringer. Thus , an un scrupulous money-getter may see a pat ented device , admittedly not known or used before its disclosure in the patent- and , thereupon , proves its merit by using it , without the owner's consent. When .admits that sued-for'infringement/he