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provides, that "any person or persons having invented any new and useful art, machine, &c., not known or used by others, before his or their discovery or invention thereof," and who makes oath, that he verily believes, that "he is the original and first inventor or discoverer," &c., shall be entitled to a patent. In another section of the same statute, § 15, it is provided, that the defendant may give in evidence," that the patentee was not the original and first inventor or discoverer of the thing patented," &c. If we were to consider the first clause by itself, without reference to that in the 16th section, it would seem clear, that an invention must have been known and used by others, before the discovery of the patentee, in order to defeat the patent. The term "others" would seem to imply general and plural knowledge, in contradistinction to knowledge by an individual. Unless this effect is given to this word, it loses much of its significance. The word, however, is borrowed from the English Statute of Monopolies, out of which the English Patent Law is carved, which secures a patent to the first and true inventor of an art, "which others at the time of making such letters patent and grants shall not use. "" These words have received repeated constructions in England. It has there been decided, that a prior invention, in order to defeat the patent of a subsequent true and original inventor, must have been "generally known"; that it must have been in "public use and operation"; "used openly in public," and not abandoned as useless by the first inventor. See Lewis v. Marling (10 Barn. & Cress. 22); S. C. Godson's Supplement, 6, 7, 8; Jones v. Pearce, Godson's Supplement, 10, 12. Mr. Godson's own language (p. 4, of the Supplement) admits the above cases to be law.

The statute of the United States of 1793, cap. 55, § 1, says, "not known or used before the application," &c. These words have received a construction from the Supreme Court

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of the United States. Story J., in delivering the opinion of the Court, in Pennock v. Dialogue (2 Peters, S. C. R. 19), said: "We think, then, the true meaning must be, not known or used by the public before the application. McLean J., in delivering the opinion of the Court, in Shaw v. Cooper (7 Peters, 319), said; "The knowledge or use spoken of in the Act of 1793 could have referred to the public only." The words used by the Court are broad, explicitly declaring, that the knowledge and use must be by the public. It appears, that in the cases actually before them, the knowledge and use had been derived from and under the patentee, having crept abroad before he had secured his invention by letters patent. But, it is submitted, that in view of the language employed by the Court, and afterwards in the statute, the difference between those cases and the present does not authorize a different construction. How can the Court restrain the word "others " to mean only those, who have derived their knowledge from the patentee? Particularly when this word is employed in the English statute, and has there received the construction now contended for?

The clause in the 16th section can hardly throw doubt upon this construction. The clause in the 1st section is the granting part of the statute, which is to be construed amply for the citizen, particularly in an act of the present nature. The whole Act must be construed, so as to give each clause its fullest effect; and no word or phrase is to be curtailed of its proportions, unless it is essential to a reasonable construction of the whole statute. If, in the present case, it is necessary to abate from any clause of the statute any of the just effect, which such clause would have, if taken by itself, we must restrain the clause in the 16th section; in other words, it must be construed by reference to the granting clause in the 1st section. He must be considered the first and original inventor,

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who has invented an art or machine, not known or used by others before his discovery thereof.

In confirmation of this view is Dolland's case (2 H. Black. R. 487; Phillips's Patents, 165), where the first inventor reduced his invention to use, but kept it secret, and showed an intention not to give the public the benefit of it. It was the case of an improvement in the object-glass of telescopes, invented by Mr. Hall, but suppressed by him, till Mr. Dolland had subsequently made the same invention, and procured a patent for it, the validity of which was disputed on the ground, that he was not the first inventor. But the patent was held to be valid. Mr. Phillips (Patents, 165,) says, this case must stand on the ground that, as the first inventor did not give the public that advantage which it was the intention of the patent laws to secure, he should not stand in the way of a subsequent inventor, who should be ready to give the public such advantage, at the end of the period provided for by the patent laws. This doctrine was recognized in a subsequent case. Forsyth v. Reviere (Chitty, Jr., Prerog. of the Crown, 182, n.).

The object of the patent law is to promote the progress of useful arts; 1st, by stimulating ingenious minds to make inventions; 2d, to secure to the public the benefit of the inventions, by having the secret fully divulged on the expiration of the patent. It is said, indeed, that the future divulging of the secret is the consideration of the grant of exclusive privileges. Let us bear this in mind in construing these words, "known and used." If the thing be known and used, the public good does not require the interference of the patent law; either to stimulate inventors, or to secure the divulging of the secret, for the invention is already made, and the secret is divulged. If the thing, however, be not so known and used, that the public will eventually have it, as if it be kept an entire secret, like Dolland's glass, or if it be thrown by as useless, or if it

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be used in private and in a corner, then it will justify the protection of the patent law;- Dignus vindice nodus. It is effectually reached by its spirit, and is not discarded by its letter. The original inventor, who afterwards bona fide hits upon it, and matures it into something useful, deserves well.

The Patent Laws of Austria (§ 27, (a), (d), Phillips on Patents, 516, 517,) provide, that "every discovery, invention, improvement, or change, shall be held as new, if it is not known in the monarchy, either in practice, or by a description of it contained in a work publicly printed."

(2.) The counsel for the plaintiff submitted another point, in the words of Mr. Phillips, in his work on Patents, (p. 395,) being a construction, which this acute and learned author has put upon two clauses of the 15th section of the Patent Law of 1836. It was as follows: "If the patentee is the original inventor of the thing patented, his patent shall not be defeated by proof, that another person had anticipated him in making the invention, unless it also be shown, that such person was adapting and perfecting his invention."

Benjamin Rand, for the defendants, e contra.

STORY J. Overruled both points, and said; Under our patent laws, no person, who is not at once the first, as well as the original, inventor, by whom the invention has been perfected and put into actual use, is entitled to a patent. A subsequent inventor, although an original inventor, is not entitled to any patent. If the invention is perfected, and put into actual use by the first and original inventor, it is of no consequence, whether the invention is extensively known or used, or whether the knowledge or use thereof is limited to a few persons, or even to the first inventor himself. It is sufficient, that he is the first inventor, to entitle him to a patent; and no subsequent inventor has a right to deprive him of the right to use

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his own prior invention. The language of the Patent Act of 1836, ch. 357, § 6, 15, and of the Patent Act of 1837, ch. 45, § 9, fully establish this construction; and, indeed, this has been the habitual, if not invariable, interpretation of all our Patent Acts from the origin of the government. The lan

guage of the Act of 1836, ch. 357, § 6, "not known or used by others before his or their discovery thereof," has never been supposed to vary this construction, or to require, that the invention should be known to more than one person, if it has been put into actual, practical use. The Patent Act of 1790 used the language, "not before known or used," without any adjunct (Act of 1790, ch. 34, § 1); and the Act of 1793 used the language "not known or used before the application," (Act of 1793, ch. 55, § 1); and the latter act (§ 6) also made it a good matter of defence, that the thing patented "had been in use" anterior to the supposed discovery of the patentee. It early became a question in our Courts, whether a use by the patentee himself before his application for a patent, would not deprive him of his right to a patent. That question was settled in the negative; and the language of the first section of the Act of 1793, ch. 55, was construed to be qualified and limited in its meaning by that of the sixth section; and the words "not known or used before the application," in the first section, were held to mean, not known or used by the public before the application. The case of Pennock v. Dialogue (2 Peters R. 1, 18 to 22), is a direct authority to this

1 See Phillips on Patents, ch. 6, § 4, p. 65, 66, edit. 1837. Woodcock v. Parker (1 Gallis. R. 438); Gray v. Osgood (Peters Cir. R. 394); Rutgen v. Kanowers (1 Wash. Cir. R. 168); Evans v. Eaton (3 Wheat. R. 454); Pennock v. Dialogue (2 Peters R. 1, 16, 20, 21, 22).

2 See Morris v. Huntingdon (Paine Cir. R. 348); Pennock v. Dialogue (2 Peters R. 1, 18, 19, 21, 22); Miller v. Silsbee (4 Mason R. 108).