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CHAPTER II.

SUBJECTS OF PATENTS.

§ 6. Defined by statute. Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may, under certain conditions, and upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor (1). As all of our patents are granted under the section of the patent laws which enumerates the subjects above mentioned, and none others, these are the only subjects upon which patents can be granted.

87. Meaning of art. The word art, as used in the patent act, is practically synonymous with process, which has been defined as "a mode of treatment of certain materials to produce a given result; an act or series of acts performed on a subject-matter to be transformed and reduced to a different state or thing" (2). Examples of what are conceded to be arts in the patentable sense are the art of printing, the art of photography, and the art of telegraphy.

§ 8. Meaning of machine. The word machine, as used in the patent act, means a combination of mechanical elements adapted to perform a mechanical function (3). It

(1) U. S. R. S., Sec. 4886.
(2) Cochrane v. Deener, 94 U. S. 780.
(3) Corning v. Burden, 15 How. 252.

includes every mechanical device, or combination of me chanical powers and devices, to perform some function and produce a certain effect or result. A machine is said to have a rule of action of its own.

Inventions pertaining to machines may be divided into four principal classes (4), viz:

1. Those where the invention embraces the entire machine.

2. Those where the invention embraces one or more of the elements of the machine, but not the entire machine.

3. Those where the invention embraces both a new element and a new combination of elements previously known.

4. Those where the invention embraces a new combination of old elements, producing a new result.

At this late day, inventions of the first class are extremely rare, as it seldom happens that an inventor produces a machine which is new in its entirety. Occasionally, however, such an invention is patented, as, for example, a recent patent (5) covers a machine for transferring pollen from plant to plant, thereby assisting nature in its work of fecundation, or fertilization. The first claim of this patent reads—"A machine for distributing pollen from bloom to bloom in order to fecundate the seeds thereof." In other words, the patent covers all machines for distributing pollen in such manner and for such purpose, and if this claim is valid, all such machines would infringe it. It may be said by way of anticipation

(4) Union Sugar Refinery v, Matthiesson, 3 CIII. 639. (5) Pat. No. 926690, 143 0. G. 1316.

that an inventor is required, in his application for a patent, to particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. In the case here cited, the applicant was allowed to claim his invention in the words above.

Inventions of the other three classes are more common, as, for an example of the second class, in a machine for making paper bags, the invention may lie in the production of a peculiarly shaped knife, adapted to cut from a roll of paper, by one cut, a blank of a peculiar shape (6); or an improved model of a typewriter, having its parts rearranged into a new combination, and having one or more new elements added, such as a second ribbon, or a special key of some sort, may constitute an invention of the third class.

Machines of the fourth class are in fact only improvements of machines previously known, and will be discussed more fully under the head of improvements in § 12, below.

The great majority of all patents issued have been machine patents.

8 9. Distinction between art and machine. It is sometimes important to note that there is a distinction between an art in the patentable sense, and the other subjects of patents, as one inventor may perhaps discover a certain art or process, and obtain a valid patent therefor, and another inventor, or other inventors, may, invent or patent machines for carrying on the process; or the same person

(6) Union Paper Bag Mach. Co. v. Pultz & Walkley Co., Fed. Cas. No. 14392.

may discover or invent the former, and also the latter, and may obtain valid patents for both (7). In the first case, the patentee of the process, if he can carry on his process without using the other's machine, may do so without infringing; while the patentee of the machine may not use his machine to carry on the patented process -although he may use it for other purposes if he cares to.

§ 10. Manufacture. The word manufacture is used in the Patent Act in a very broad sense, and has been generally held to be synonymous with product (7). It may be said to include everything that is made by the art or industry of man, that is not a machine, a composition of matter, or a design. Examples are manufactured articles of merchandise generally, such as baskets, pottery, articles of clothing, nails, screws, etc.

§ 11. Composition of matter. A composition of matter may be defined in general as a compound of two or more substances which possess a property or quality that is not possessed by the substances individually.

§ 12. Improvements. An improvement may be said to be the addition of some useful thing, or of some useful quality or property to an art, machine, manufacture, or composition of matter. Practically all patents which are now being, or for some time past have been issued, belong to this class. It is said that “there is nothing new under the sun," and this maxim is as true in the inventive field as anywhere else. But this is far from saying that invention is not productive. Everywhere, in the technical field, arts, processes, methods, and modes are being improved;

(7) Morse and Bain Tel. Case, Fed. Cas. No. 9861.

practically every machine in common use to-day is being constantly improved; all of our tools, implements, articles of merchandise, and other articles of manufacture, and chemical compounds and compositions, and other compositions of matter, are from time to time improved; and patents are granted by the government each week for such improvements (8).

§ 13. Meaning of invented or discovered. Nothing is patentable unless there is in some manner included therein, the element of invention. As used in the Constitution and patent laws, discovered is synonymous with invented; and no discovery will entitle the discoverer to a patent which does not amount to the contrivance or production of something which did not exist before (9). The “discoveries” of inventors are inventions. The same man may invent a machine and may discover an island or a law of nature. The first involves invention and is patentable the second is not.

The four classes of things above enumerated as the subjects of patents are not such as can be made known by discovery, as a river or an island may be. They must be created (9), and their creation for the first time generally involves invention. They are ordinarily products of the inventor's creative faculty-of his inventive genius

(8) At the present writing, there have been granted by the United States nearly one million patents, the last patent appearing in the Official Gazette of the Patent Office for June 29, 1909, being No. 926719. A rough average taken of the number of patents reported in a number of issues of the Official Gazette, selected at random for some time back, seems to show that they are being issued at the rate of about 700 to 800 each week.

(9) In re Kemper, Fed. Cas., No. 7687.

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