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
