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gating plants and trees by hydrocyanic acid gas, after covering them with an oiled tent, was more effective in the absence of the actinic rays of the sun, and it was sought to patent the process of carrying on such operations at night, or in foggy or cloudy weather. In both of these cases the patents were held invalid, as was also in another case a patent for the discovery that the inhalation of ether by an animal, i. e. an old agent acting by an old means upon an old subject, produced insensibility to pain. And in O'Reilly v. Morse (52), it appeared that Samuel F. B. Morse, in his eighth claim, as it was construed by the Supreme Court, claimed the use of an electric current for marking intelligible signs at a distance. This claim was held invalid.
The rule derived from these cases, and others cited by Mr. Walker in his work on Patents (53), is, as explained by him, that whereas a patent for a process is a patent for the described combined use of all the laws of nature utilized by that process, in the cases above mentioned it was sought, in each instance, to patent only one of such laws. If this could be done, a patent so obtained would be much broader than an ordinary process patent, for it would include every process which accomplished the same result as the one covered by the patent, and which utilized that particular law of nature, whether in combination with other laws or not; and the patentee could, by claiming one law of nature which might be essential to the operation of all such processes, suppress, during the life of his patent, all further invention in that field.
(52) 15 Howard, 112.
On the other hand, a process patent covers only the combination of all laws of nature which are utilized in the process, and the particular manner or method of using them, leaving other inventors free to use the same laws in combination with other laws, or in other combinations and methods. Such patents are valid, as for example in Mowry v. Whitney (54), where the patent related to the process of manufacturing cast iron car wheels by retarding their cooling through heating a second time; and in McClurg v. Kingsland (55), where the patent covered a method of casting chilled rollers, and other cylinders, by giving the tubes or gates through which the melted metal entered the mold a tangential inclination, so that the metal would receive a rotating motion in the mold and by centrifugal force cause the purer and heavier metal to move toward the circumference of the mold, leaving the dross in the centre. In both of these cases, the patented processes depended for their operation upon well known laws of nature; in the first case, upon the laws of contraction and expansion of solids with changes of temperature, of the hardening of iron in different degrees of hardness, toughness and brittleness, with different rates of cooling, and upon the fact, which the inventor discovered, that hardness once given the iron by rapid cooling, will not be seriously impaired by its immediate re-heating and subsequent slow cooling. The patent related to the particular method of utilizing all of these laws of nature, and was sustained. In the second case, the patented process
(54) 14 Wall. 620. (55) 1 How. 202.
of course utilized the well-known law of centrifugal force, but the patentee claimed only the particular method of carrying on his process in such manner as to bring that force into operation, and the patent was likewise sustained (56).
Designs. In addition to the subjects of patents above numerated, there are also allowed by Section 4929 of the Revised Statutes, patents to every person who has invented "any new, original, and ornamental design for an article of manufacture” (57). Many of the considerations which apply in determining the patentability of inventions of the classes hereinbefore enumerated, apply with equal force in determining the patentability of designs, but instead of the requirement that the invention must be "new and useful,” found in Section 4886, Section 4929 provides that it must be “new, original, and ornamental.”
The question of novelty is determined by the similarity or dissimilarity of two designs from the point of view, not of the expert, but of the ordinary observer with that
(56) These two cases, and several more, are cited and explained in an instructive paper on Process Patents read by Mr. C. Clarence Poole, of the Chicago Bar, before the Patent Law Association of Chicago, June 10, 1895.
(57) Subject to the same provisions with respect to prior knowledge and use, patenting, description in printed publication, and abandonment as in the case of patents for arts, machines, manufactures and compositions of matter (U. S. R. S., Sec. 4929), except that the inventor must not have allowed his design to be patented in a foreign country on an application filed more than four months (instead of twelve months, as in the case of the other subjects of patents,) before the filing of his application in this country. U. S. R. S., Sec. 4887.
degree of observation which men of ordinary intelligence give to the subject matter (58). Novelty of a design is not negatived by the fact that every separate feature thereof is found in one or another of a number of prior designs, if all of such prior designs considered together do not suggest the new design to one who had not seen it before (59). Otherwise novelty would be denied to many modern designs which utilize classic forms of ornamentation.
Patents for designs are granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may, in his application elect (60), the government fees for issuing such patents being graded accordingly.
(58) Gorham Mfg. Co. v. White, 14 Wall, 511; Monroe v. Anderson, 58 Fed. 398.
(59) Untermeyer v. Freund, 37 Fed. 342, 344. (60) U. S. R. S., Sec. 4931.
PROCEEDINGS IN PATENT OFFICE.
23. Who may apply. Any person who has made an invention, subject to the limitations above considered, may apply for a patent therefor (1). In case of the death or insanity of the inventor, the application may be made by and the patent will issue to his duly authorized representative; or in case of his death or insanity during the proceedings in the Patent Office, such representative may intervene (2).
Where a complete invention is the gradual result of the combined mental operations of two or more persons working together, or where each party invents or discovers something essential to the whole (3), as where an idea is suggested to one and he constructs a machine embodying his idea, but it is not a completed and working machine, and another takes hold of it, and by their joint labors, one suggesting one thing, and the other another, a perfect machine is made, such parties are said to be joint inventors (4). Joint inventors are entitled to and should apply for a joint patent; neither of them alone is entitled to a patent for their joint invention. But independent inventors of distinct and independent improve
(1) U. S. R. S., Sec. 4886.