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SAMUEL DILLON HIRSCHL,
B. B. (University of Chicago)
Patent Solicitor, Chicago Bar.
ORIGIN AND NATURE.
§ 1. No common law right. No inventor has any special right in his invention, as such, at common law (1). If he cannot guard his invention from the public by secrecy, the only rights he has are those which are secured to him by statutes, upon his compliance with their terms. No action will lie by an inventor to prevent any person from
(1) Brown v. Duchesne, 19 How. 195.
practicing freely an unpatented invention, unless such person has been guilty of fraud or breach of trust in securing knowledge of the invention, or some other such special ground exists.
§ 2. Origin of patents: In England. In England, in the middle ages, the monarchs occasionally created, by royal patent or grant, monopolies, giving to certain individuals the exclusive right to carry on particular trades. These monopolies were bestowed upon the grantees generally as marks of royal favor, or as a reward for services, but were not based upon any considerations of invention or discovery with respect to the subject matter of the monopoly. They did not in any manner tend to promote the progress of science and useful arts, and finally became so oppressive that in 1623, an act (2) was passed, prohibiting monopolies in general, but excepting “Letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made of the sole working or making of any manner of new manufactures to the true and first inventor and inventors .... SO as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient” (3).
The English patent law rests upon the exception in this early statute.
(2) 21 James I, C. 3.
The last clause of this section, relating to public oppression, is retained in substance in many of the present patent statutes of the different countries, which provide that the patented device must be manufactured, during the life of the patent, in such manner that it may be obtained by the public at a reasonable price. There is, however, no such provision in the patent laws of the United States.
§ 3. Same: In United States. The patent laws of the United States rest upon the constitutional provision (4), giving to Congress power to promote the progress of science and useful arts, by securing for limited times to
inventors the exclusive right to their respective
discoveries ;” and upon the acts of Congress passed in pursuance of this provision.
§ 4. Nature of patents. A United States patent is a grant to the patentee, for the term of seventeen years, of the exclusive right to make, use, and vend his invention throughout the United States and the territories thercof (5). Such a grant of an exclusive right is property, and the owner of a patent is protected by law in its enjoyment the same as the owner of any other species of property (6). Likewise, patents may be sold or assigned, in whole or in part, or otherwise freely dealt in; they may be made the subject of contracts relating to the making, using, or selling of devices embraced within their terms; and upon the death of the patentee, they pass to his personal representatives.
8 5. Justified under public policy. Under our patent laws, as sanctioned by the Constitution, the courts have always recognized that a patent is in no sense merely an oppressive monopoly, but is a reward to the inventor for his efforts in bringing about the invention, and for making it public; a stimulus to him and to others to strive further in the inventive field. He receives nothing from the government, or from the people, which is in any sense
(4) U. S. Const., Art. I, § 8.
a loss to them. He is simply allowed to retain a part of what he gives to the publie-tó retain as his own, for a limited time, that which he otherwise freely dedicates to the public. In an early case it was said that the exclusive right which a patentee receives is “at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to förther efforts for the same important objects!!.(7).
) Påtėnts are therefore fully justified under public policy.
(7) Kendall v. Winsor, 21 How. 322.