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celluloid with an interlining of cloth to render it suitable for collars and cuffs (33); or in filling the interstices of a corn-cob pipe from the outside with cement (34).
§ 18. Novelty. Any person who has made an invention which is new and useful, and which was not known or used by others in this country before his invention; or patented or described in a printed publication in this or any foreign country before his invention; or patented or described in a printed publication in this or any foreign country for more than two years prior to his application for a patent; or in public use or on sale in this country for more than two years prior to his application for a patent; and which has not been abandoned, may obtain a patent for his invention (35).
The word new has a somewhat broader meaning in the patent statutes than it has in the dictionaries, and everything which is actually new in the commercial sense (and a few things more), is new in the patentable sense.
The same considerations which apply in determining the question of invention often apply also in large part in determining the question of novelty; and the courts occasionally use the two terms synonymously, although they are different. Thus, in Hailes v. Van Wormer (36), where invention was denied on the ground that there was not a patentable combination, but merely an aggregation of old elements, the alleged invention is also said to lack novelty, by which is meant that there was no novelty in
(33) Celluloid Mfg. Co. v. Am. Zylonite Co., 35 Fed. 417.
any of the elements, and that there was no invention in combining them.
And in many cases where an inventor produces one thing, and the prior art shows another thing very similar to it, it may be said with substantial accuracy, either that his device shows no invention, in view of the prior art (meaning that there was no invention involved in producing something so nearly like that which existed before); or that his invention lacks novelty (meaning that he has not produced anything which did not exist before). Such cases are Brown v. Piper (37), where the patentee applied the principle of an ice-cream freezer, at that time well known, to an apparatus for the preservation of fish; and Atlantic Works v. Brady (38), where it appeared that steam boats had been backed into mud banks, in order to utilize their propellers for the purpose of dredging, and the patentee produced a dredge-boat having a dredging screw at its bow. In both of these cases the patents were held invalid.
It is no answer to the objection of lack of novelty that the inventor did not know of the anticipating device, or devices, as he is presumed to have knowledge of everything which has been known or used by others in this country, or which has been patented or described in a printed publication in any country.
§ 19. Utility. An invention to be patentable must be useful (39). By useful is meant that the invention may be applied to a beneficial use in society, in contradistinc
(37) 91 U. 8. 37.
tion to one which is injurious to good morals, or to the good order of society, or is frivolous, or is a mere contrivance without any other merit than novelty (40).
A device is not useful, which cannot be used for the purpose for which it was intended, or which does not accomplish the result which it was intended to accomplishas where the grounded end of a lightning rod was surrounded with plates of dissimilar materials, in order to form a galvanic battery which was intended to charge the upper end of the rod with electricity of a kind opposite to that in the air for the purpose of facilitating the discharge thereof, it was held that since the galvanic charge was necessarily so weak in comparison with the atmospheric charge as to have no appreciable effect upon the latter, the invention was without utility.
A device lacks utility which is used only for an immoral purpose, as a gambling device (41). But a device which has a legitimate purpose is not denied patentability, although it is sometimes used for an illegal purpose, as for example, a pack of playing cards (42); or a revolver or other weapon.
Ordinarily the degree of utility is unimportant in determining whether or not a device is patentable. If the device is not frivolous or prejudicial to the public, and has any degree of usefulness, no matter how slight the practical utility, it is considered useful and may be patented (43). And in general it may be said that in the Pat
(40) Bedford v. Hunt, Fed. Cas. No. 1217; Thompson v. Haight, Fed. Cas. No. 13957.
(41) National Automatic Device Co. v. Lloyd, 40 Fod. 89.
ent Office doubts are resolved in favor of the utility of a device. On this ground many patents are now being issued on flying-machines, it being sufficient if they have theoretical utility, although doubtless further experiment will show many of them to be impractical (44). But the Patent Office has always refused to grant patents on perpetual motion machines (45).
§ 20. Abandonment. An inventor is not entitled to a patent if he has abandoned his invention to the public. By abandonment of invention in this sense is meant that the inventor, having fully performed his inventive act, and having embodied his idea in tangible materials ready for immediate public use, freely gives it to the public without intending to claim from them the protection to which he is entitled (46). But merely abandoning unsuccessful experiments which stop short of becoming a complete invention does not prejudice his rights (47), and he may afterwards resume his work, carry his invention to completion, and obtain a patent therefor.
The kind of abandonment which defeats an inventor's right to a patent is a question of fact, and in general it may be said that any act which places the invention within reach of the public, unaccompanied by indications that the inventor claims his rightful privilege, amounts
(44) But all patents on the latter will be open to defeat after wards in the courts by showing such fact. See 8 61, below.
(45) The Patent Office has a printed form letter for answering all applications for patents on such machines. In each case the applicant is required to furnish a full size working model of his invention.
(46) 1 Robinson on Pats., p. 473. (47) Walker on Pats., 8 86; 22 Am. & Eng. Ency. Law, 2nd. ed. 341.
to an abandonment (48). But in all cases the question is one of intention, actual or constructive, and abandonment is shown only by such conduct as clearly indicates the inventor's intention to surrender his rights.
It will also defeat an inventor's right to a patent if his invention has been patented or described in any printed publication, or has been in public use or on sale in this country, more than two years prior to his application for a patent. Where one of these things has occurred it is of course unnecessary to consider any question of his knowledge or intent, as the statute makes them a complete bar to his right. But it will not defeat his right to a patent in this country if the invention has been patented to him or his legal representatives or assigns in a foreign country, unless the application for such foreign patent was filed more than twelve months before the filing of his application in this country (49).
§ 21. What is not patentable. The discovery of a principle or law of nature, sometimes also called a scientific principle, or a scientific fact, is not patentable. For example, in one case (50) it appeared that the purported inventor had discovered that blocks of ice placed on edge, owing to the peculiar action of air currents within the ice, melted less rapidly than when laid flat, and claimed a patent for such discovery; and in another case (51) it appeared to have been known that the old process of fumi
(48) 1 Robinson on Pats., 475.