monts were well known , nml that the
third , so fnr as its contents arc identical
with those on the stub , is not new.
The question turns on thai feature of the
third clement , whereby removable part
of the stamp proper , the contents of which
identify the xUunp with the stub after the
stamp has been attached , can be so re
moved as to retain its own integrity , but
mutilates and thereby cancels the stamp
by its removal.
"This is wlmt we ascertain to be the
precise idea embodied in Iho invention
described and claimed in the patent , ami
which , although we find to be new in the
sense that it had not been anticipated by
any previous invention , of which it
could therefore be declared to bo an in
fringement , yet is not such an improve
ment as is entitled to be regarded in the
sense of the patent laws as an invention. "
( The italics are ours ) .
If the supreme court meant to say by
the last words above quoted and put by
us iu italics that as the subject of this
patent was , in the last analysis , merely
a scheme to prevent fraud * and not "an
art , machine , manufacture , or compos
ition of matter , or any new and useful
improvement thereof" within the mean
ing of Section 4886 "R. S. U. S. , then
we could understand the decision as not
necessarily inconsistent with the statute
or with the spirit of our patent laws ; but
the decision does not say this , and it is
certainly used as an authority for
the position that a thing may bo "an
art , machine , manufacture , or composi
tion of matter , or any improvement
thereof" within the statute , and may be
new and useful , and yet not bo " ? the
sense of the patent laws an invention. "
To give such an effect to that decision
is to stamp it as a piece of judicial legis
lation. We have shown iu the last quo
tation from Mr. Justice Matthews'
opinion that the supreme court found in
the subject of the patent novelty. In
the very next clause of that opinion , we
see that the court finds that the subject
of the patent had the other requirement
of the statute utility the court stat
ing :
"In reaching this conclusion" ( that it
was new yet could not "be regarded in
the sense of the patent laws as an inven
tion , " ) "wo have allowed its duo weight
to the presumption in favor of the valid
ity of the patent arising from the action
* In Kneass v. Schuylkill Bank , 4 Wash. , 9 ;
Fed. Gas. No. 7,875 , Mr. Justice Washington ( in
1820) ) hold that the patent there under consider
ation , which was for copper-plate , or copper
plate and type-printing on banknotes , for the
purpose of producing a particular effect , viz. ,
security against counterfeits , was clearly with
in the net of congress and patentablo. Speak
ing on this question , Mr. Justice Washington
says :
"Is this the discovery of an art , machine , etc.
or of an improvement in any art , machine , etc
If it bo either , then it is the subject of patent
by the express words of ( lie act ofconyress "
This case is referred to in Curtis on Patents
4th ed. , $ 10 , as ono of the leading cases on this
question.
of the patent office in granting it ; and
ve hare not been unmindful of the fact ,
abundantly proven , and indeed not denied ,
hat the adoption of the present tax-paid
stamp , in lieu of that previously in use
nj the internal revenue bureau , has prevents
ts superior utility in Hie prevention of
frauds upon the revenue. "
After stating more fully facts which
show the great utility of the subject of
the patent , the court proceeds :
"Such an increased utility , beyond
wlmt had been attained by devices pre
viously in use , in cases of doubt is usu
ally regarded as determining the ques
tion of invention. But in the present
case we are not able to give it sncli
effect.
"No change , it will be observed , was
made in the character of the stamp , so
far as the relation between the stamp
proper and the stub is concerned , nor in
iho identifying marks which constituted
he written and printed matter upon
both ; and the expedient of using a paper
jacking whinh prevented the adhesion
o the package of the part intended to be
detached and removed , it is manifest ,
would be adopted by any skilled person
having that end in view. " ( Theitalics are
ours ) .
How is this manifest ? Is it any more
manifest than that , while a strand of
wire will effect an enclosure and resist
pressure to the extent of its strength , a
barb put on such strand of wire , by
pricking the animal likely to cause the
pressure , will repel it and thus remove
that pressure and its cause , which other
wise might be exerted and be too great
for the wire to resist 1 * Yet in the lat
ter cose the supreme court recognized
patentable invention in the barbed wire.
But if the novelty and utility be ad
mitted , and it be further admitted that
the thing is "an art , machine , manufac
ture , or composition of matter , or any im
provement thereof , " by what warrant
does the court say that that which ad
mittedly was not done before and is use
ful was manifest ? Does there not exist
in these two facts novelty and utility
the very strongest evidence of which the
case in its nature is susceptible , that it
was not manifest , since it was not done
before , and its utility and general use
proves it to have supplied a long-felt
want ?
Could it not be said with truth of the
subject of such a patent , in the words of
Milton , supra :
" The invention all admired , and each , how he
To bo the inventor miss'd ; so easy itseeni'd
Once found. "
Is not the thing done by the patentee
in Hollister vs. Benedict , supra , judged
by its results , exactly the thing , of all
things , that does prove the patentee to
have been an inventor within the mean
ing of the statute ? Unfortunately iu
these cases the courts do not consider
* The Barbed Wire Patent , 14U U. S. , 576 *
the condition of things existing a priori
mt only a posteriori and then , because ,
i posteriori , the solution in the shape of
a new and useful article is simple , ergo ,
t was manifest and , therefore , not pat
entable. But looked at from the apriori
point of view it would bo presented in
; his light : A difficulty ; a want ; a prob
lem , whatever we ohoose to call it.
Presto , the removal of that difficulty ;
; hat want supplied ; that problem solved ,
[ f the solution takes the form of some
complicated machine or some intricate
process , then it is an invention , accord
ing to the test in Hollister vs. Benedict.
[ f it be so simple as to create surprise
that it was not thought of before , then
'it is manifest that it would be adoptcdby
tny skilled person having that end in
view. " But is this the law as expressed
ay the statute ? Is this the true spirit of
our patent laws ? If so , we misunder
stand them and misunderstand Chief
Justice Marshall * in the interpretation
of those laws. In all such cases the pat
entee who has complied with the statute
and disclosed by his patent a simple
siring , which is admittedly new and use
ful , is to find in the statute a trick to
obtain his disclosure , and will be told
when he attempts to assert his rights :
"Rights ! you have no rights. True ,
it is now ; true , it is useful ; true ,
it was not done before ; true , it
lias gone into general use since the
patent ; but now that we see it we tell
you , o posteriori , what wo could not
liave told you a priori it is obvious ;
any one who had a mind to could have
done itt : it is not a patentable inven
tion 1" In vain will such person reply :
"Not a patentablo invention ? Where
do you find such a test for a patentable
invention in the statute ? The statute
says that if what I have done is new and
useful and comes within any of the com
prehensive classes named iu the statute ,
such as machines , manufactures , or com
positions of matter , it is pateutable ; nay
if it be but 'any' improvement in any
machine , manufacture , or composition
of matter , if I comply with the condi
tions precedent , I shall have a patent.
On the faith of the statute and on the
liberal interpretation of the patent law
as expounded by one of the greatest
jurists this country has ever produced , I
have disclosed that invention which all
admire and which the pirates have
proved their admiration for by copying
and which you now say is obvious. All
I ask is that faith be kept with me ; I
have placed my faith in nay government ,
* Grant vs. Raymond , 0 Peters , 218.
{ Judge Coxe , holding United States circuit
court for the Southern district of New York ,
in the ease of Mack v. Spencer Optical Mfg. Co. ,
52 Fed. Rep. , 819 , in sustaining the patent for anew
now and useful , but very simple device , states :
"The suggestion that any ono could have done
what the patentee did , recalls the reply made
by Charles Lamb to the young pedant , who de
clared that ho could write like Shakespeare , if
ho had a mind to : 'Yes , ' said Lamb , 'if you
had the mind to. ' "
