. .
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-
