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About The Conservative (Nebraska City, Neb.) 1898-1902 | View Entire Issue (March 30, 1899)
. . a "Che Conservative. the Rubject-mntter of the patent is new and useful and that he has basely copied it ; but , sophistically , and without war rant in the statute , contends that , to create the difference between the device of the patent and what preceded it , me chanical skill only was required , and that it does not rise to the dignity of in vention. It is to be regretted that this fallacy has received the slightest accept ance by the courts ; for its effect upon the practical application of the law of patents has been important and highly detrimental. Such a contention reminds us of the words of the immortal Milton : " The invention all admired , and each , how ho To be tin * inventor miss'd : so < > asy it aeem'd Once found , which yet unfound most would have thought impossible. " In Btich cases the infringer hns proved his admiration for the invention by that compliment and flattery which , by com mon consent , is recognized as most sin cere imitation ; and yet , with an auda city peculiarly his own , he boldly claims without warrant in the statutes or in the history of the statute law , that it is not a patentable invention. But what war rant is there for such contention in the constitution or in the acts of congress which have since been passed in relation thereto ? Tn all the acts of congress in relation to the subject of patents , since the act of 1790 up to the present time ( see Sec. 4886 R. S. U. S. ) wo find that patents may be granted to any person who "has invented or discovered any now and useful art , machine , manufac ture , or composition of matter , or any new and useful improvement thereof" ( the italics are ours ) ; but nowhere do we find any attempted definition of what is an invention or discovery within the meaning of these acts , except as above expressed , i. e. , "any new and useful art , machine , manufacture , or composition of matter or any now and useful improvement thereof. " Is the genius alone the person whom the framers of our constitution had in mind , to the exclusion of the plain every-day laborer , mechanic , or artisan9 By what rule are we to determine in a given case that that which is admittedly new and useful , not known and in act ual use before , is merely the exercise oi the expected calling of the mechanic when the evidence shows that it was uoi done before , that it is so useful thai once brought to light it has been adoptee by the very class who had most occasion for its use ? Are not these facts alone all-sufficient to stamp it either as a now and useful art , machine , manufacture or composition of matter ( to whichovei class it belongs ) , oratleast some ( "any , ' the statute says ) improvement in one o these comprehensive classes ? In such a case , are not the lines o : Milton peculiarly apt , and is it exercis ing the proper spirit of liberality , to -which Justice Marshall refers , for a cliancelor in equity , or a jury at law , to exercise his or their peculiar views in at- emptiug to make , without warrant in the statute laws , a metaphysical distinc tion between inventive genius on the one hand and mechanical skill on the other ? Manifestly , it would seein to us that ; he framers of our constitution , and con gress acting in pursuance of the spirit of our constitution , were imbued with the same spirit which animated their fore fathers in passing the Statute of Monop olies ( passed 25 May , 22 Jac. I. , A. D. 1024) ) , Section VI of which provides : "VI. Provided , also , and be it de clared and enacted , that any declaration , before mentioned , shall not extend to any letters-patent and grants of privi lege for the term of fourteen years , or under , hereafter to be made , of the sole working or making of any manner of new manufactures , within this realm , to the true and first inventor and inventors of such manufactures , which others at the time of making such letters-patent and grants shall not use , so as also they bo not contrary to the law , nor mis chievous to the state , by raising , prices of commodities at home , or hurt of trade , or generally inconvenient. " ( The italics are ours ) . Monopolies. This excepting clause in the statute of monopolies , which is the foundation of the patent system in England , is , un questionably , the inspiration of the clause in our federal constitution , to which we have just referred and which is the corner-stone of our patent sys tem. In England , as in this country the development of the usi-ful arts , man ufactures of all kinds , as well as the sciences , was at the bottom of the whole idea in respect to protection by letters patent. The simplicity of the now manufacture , art , machine , etc. , was not the question when it came to pro tection by letters-pntentthe fundamen tal idea being , as it should be today , is the thing to be patented new , in the sense that it has not been embodied ii the form of the now art , machine , man ufacture , or composition of matter in which it is presented by the patentee that the thing which he claims has no been used and is it useful ? If so , then if it bo nothing more than an improve meiit in " ( / " art , machine , maimfao ture , or composition of matter , it is pro perly the subject of patent protection It is not a question , then , whether the new and useful thing bo so simple tha any mechanic seeing it could duplicate it at once and realize "how he to be tli inventor missed , so easy it seemed , " no whether it be so ingenious or compli cated that none but scientists can ap preciate the philosophy of its operation but the single and sole question is , does it in fact come within any of the comprehensive prehensivo terms used by the statute ic. is it "any" now and-useful art machine , manufacture , or composition of matter or "any11 improvement ] 4 in "any11 art , machine , manufacture - | $ ture , or composition of matter ? If so , then it is the subject of a patent , and to say that this , though now and useful , represents mere mechanical skill and hence is not patentable , while that shows evidence of the inventive faculty , is to make a metaphysical distinction of which it is impossible to give a substan tial definition , and to make a distinction which the statute law does not make and which does violence to the mani fest spirit and intent of that law. To make such a distinction is nothing short of judicial legislation , and is to substitute for the words of the statute the uncertain and peculiar idiosyncrasies of a particular judge or a particular jury. Tlu LaiiKUUgu of the Law. It would scorn , after a review of the history of our patent laws , that the only safe guide to follow is that stated in the language of the statute. In late years the principles announced by Chief Jus tice Marshall have not , we think , been fully recognized by many courts ; but in the more recent decisions we think we see that the judicial pendulum has readied the limit of its stroke in depart ing from tl'ese safe principles , and is re turning to its starting point. A case which , perhaps , more than any other has led to a consideration of let ters-patent from an unfortunate point of view , which , we think , it is difficult to reconcile with the spirit of our con stitution , so far as it relates to patents , with our statute laws on the subject of patents , and with the opinion of the su preme court as expressed by Chief Justice Marshall , supra , and which it is certainly difficult to reconcile with earlier and with some later decisions of the supreme court , is the case of Hollister v. Bene dict , 118 U. S. , 59. In that case the patent was for certain improvements in identifying the revenue marks or labels , and the invention is sufficiently de scribed as consisting of a stamp having in combination three parts : (1) ( ) apart which is designed to become a stub when the stamp proper is separated therefrom , and displays a serial number ; (2) ( ) a constituent part of the stamp pro per svhich is designed for permanent attachment to the barrel ; ( ! 5) ) a constitu ent part of the htamp proper displaying the same identifying serial number as the stub , which part , after the stamp proper has been affixed to the barrel , bears such relation to the permanent part , that it can bo removed therefrom so as to retain its own integrity , but mutilates and thereby cancels the stamp by its removal. After showing the above to bo , essen tially , the subject of the patent , the supreme premo court , in an opinion by Mr. Jus tice Matthews , pay : "In this combination it will not be questioned that the first and second ele-
