tlbe Conservative *
that cnso ( Hotchkiss v. Greenwood , 11
Howard , 248) ) that hnd the court found
mechanical skill or ingenuity present ,
even in the means of attaching the knob to
the shank , to that extent the patent
would have been upheld , but , as it was
reduced , at most , mi'reJy to the selection
of materials , the patent was found in
valid for want of novelty.
On the other hand , in the cose of Col
gate v. Western Union Telegraph Co.
(15 ( Elatchf. , 805) ) , Judge Blatchford held
that a patent for a metallic wire covered
with gutta-percha , based upon the dis
covery of the fact that gutta-percha is a
non-conductor of electricity , was prop
erly the subject of patent protection
under the statute , though covered wire ,
as a protection against rust , existed be
fore the patent.
"Wo make the bald statement , and
wo challenge its contradiction in our
federal constitution , in the history
of our acts of congress in respect to pat
ents , or in the acts of congress them
selves , that , bo the thing patented new
and usrful and let such a thing come
fairly within the classes named in the
statute , i. c. , "any new and useful art ,
machine , manufacture , or composition
of matter , or any new and useful im
provement thereof , " the patent granted
for same is one contemplated by law ;
and puch o patent should not bo declared
invalid because , forsooth , some chan-
celor , after the thing has been disclosed ,
turning pro ( em. into a metaphysician ,
finds the subject of the grant in
volved , by the test of metaphysics , but
mechanical skill.
Call it by what name you will ( like
the rose , by any other name it will be as
sweet to the patentee ) if it respond to
the above statutory requirements , it is a
thing "invented" brought to light by
the inventor , as such has become a part
of the stock of useful knowledge , and as
such is entitled to protection under our
patent laws , as they exist today , and as
they have existed since the first act of
congress on the subject.
Iii nothing that wo have said do wo
mean to charge that the courts have
been wrong in all cases in which they
declared patents invalid for want of
novelty. No doubt , in many such cases
the courts have arrived at correct con
clusions and by correct methods of rea
soning ; while in others their conclusions
were correct though the' reasons for
their conclusions may not have been
sound. But we do mean to say that in
all such cases in which patents have
been justly declared invalid the judg
ments were just and lawful , no matter
what the reasons assigned for the judg
ments may have been , not because the
subjects of the patent were the result of
mechanical skill , but because they were
lacking either in novelty or utility.
Copyrights.
Our copyright statutes rest upon pre
cisely the same foundation as our stat
utes in respect to patents , f. e. , that con
gress shall have power "to promote the
progress of science and useful arts , by
securing for limited times to authors and
inventors the exclusive right to their re
spective writings and discoveries , " yet
the copyright laws , interpreted by the
courts with that same liberality which
lias been evidenced by the supreme
court in dealing with the patent laws , as
expressed in its opinion by Chief Justice
Marshall , supra , make no distinction be
tween the humble compiler of a direc
tory , the less deserving author of the
"dime novel , " and the genius of the
poet , but recognizing each as an
"author , " deal out even justice to all.
It might as well bo said , and with
quite as much reason in the constitution
and statutes , that a chancelor could sit
in judgment upon the literary merit of
a book , the contents of which are ad
mittedly new and useful , to determine
whether or not the holder of the .copy
right was an "author" that his bnok
tiad enough literary merit to be consist
ent with the dignity of "authorship"
as to say that under our patent statutes ,
as they exist , a chancelor , in a case
where the patented thing is admittedly
new and useful , is to pass upon the meta
physical question as to whether or not
the subject of the patent rises to the
dignity of an invention or involves
merely mechanical skill.
"We submit that reason and the opin
ions of the most learned chancelors are
with us in our contention ; that the only
safe guide to follow in these cases is to
take the law as we find it in the statute ,
and , imbued with the history of that
law and its tnie spirit as expressed by
those nearest the fountninliPad , and by
those who have followed and by their
writings rhown themselves to be most
thoroughly conversant with its history
and the reason for its existence , and
when we find that the subject of the
patent can fairly be said to be or relate
to "ani/ art , machine , manufacture , or
composition of matter or any improve
ment thereof" and that it is new and
useful , no matter how simple , then to
uphold the patent.
Mr. Curtis ( Curtis on Patents,4th ed. ,
§ 8.i ) saw this very clearly ; he says :
"It may be doubted , whether all the
different forms of stating or investiga
ting the question of sufficiency of inven
tion are anything more than different
modes of conducting the inquiry ,
whether the particular subject of a pat
ent possesses the statute requisites of nov
elty and utility , both of which qualities
must bo found uniting in it. "
This , after all , is the principle recog
nized by the supreme court in the barbed
wire cases (148 ( U. S. , 275) ) by the able
opinion of Mr. Justice Brown , and it is
the same principle which has been recog
nized as correct and applied by many ot
the most learned judges of our country
and of our day , in many cases. We
think we see in some of these more
recent decisions a recognition of the
principles which are thus stated by
Chief Justice Marshall in Grant v. Raymond
mend and which will bear repetition
here : "To promote the progress of use
ful arts , is the interest and policy of
every enlightened government. It en
tered 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 bo issued to the
inventor of any useful art , etc. , on his
petition , 'granting to such petitioners ,
liis 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 further 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 1793 , contains the same
language and it cannot bo doubted that
the settled purpose of the United States
has ever been , and continues to be , to
confer on the authors of useful inven
tions an exclusive right in their inven
tions 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 these exer
tions. 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 contract fairly on the part
of the United States , where the full ben
efit has been actually received if tin's
can be done without transcending the
intention of the statutes , or countenan
cing acts which are fraudulent or may
prove mischievous.
"Tho public yields nothing which it
has not agreed to yield it receives all
which it contracted to receive ; the full
benefit of the discovery , after its enjoy
ment by the discoverer for fourteen years ,
is preserved ; and for his exclusive en
joyment of it during that time the pub
lic faith is pledged. That sense of jus
tice and of right , which all feel , pleads
strongly against depriving the inventor
of the compensation thus solemnly
promised. "
Justice .
How just and equitable these princi
ples are , and what a safe guide do we
not find in them 1
What harm can come of following
these principles , even as applied to what
the courts may call "a narrow inven-