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the patent must by void ab initio.28 “Undoubtedly,” said Eyre C. J. “there can be no patent for a mere principle."

1929 Lord Keyon said, “the principal objection made to this patent, is that it is a patent for a philosophical principle only, neither organized nor capable of being organized.” If the objection were well founded in fact, it would be decisive; but I do not think that it is so.30 “I am inclined,” said Mr. Justice Grose, “ to think that a patent cannot be granted for a mere principle.'

»:31 Mr. Justice Lawrence said, “if it were necessary to consider whether or not mere abstract principles are the subject of a patent, I should feel great difficulty in deciding that they

are.":32

Such are the opinions of the judges on the patentable character of principles. But what meaning did they attach to the word? Mr. Justice Lawrence says, “a principle may mean a mere elementary truth, but it may also mean constituent parts.

1333 Mr. Justice Rooke thus explains the word.

« The term principle is equivocal; it may denote either the radical elementary truths of a science, or those consequential axioms which are founded on radical truths; but which are used as fundamental truths by those who do not find it expedient to have recourse to first principles. The radical principles on which all

28 Boulton v. Bull, 2 H. Bl. 485.
19 S.C. Ibid. 495..
30 Hornblower v. Boulton, 8 T. R. 98.

01 S. C. Ibid. 104.
32 S. C. Ibid. 105.
33 S. C. Ibid. 107.

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steam-engines are founded, are the natural properties of steam, its expansiveness and condensibility. Whether the machines are formed in one shape or another, whether the cylinder is kept hot or suffered to cool, whether the steam is condensed in one vessel or another, still the radical principles are the same.

The signification in which a principle is not a subject of a patent is distinctly pointed out by Abbott C. J. He says, “No merely philosophical or abstract principle can answer to the word manufactures. Something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or at the least some new mode of employing practically his art and skill, is requisite to satisfy this word."135

Mr. Justice Story remarks, upon the use of this term as descriptive of the subjects of patents, that “ In the minds of some men, a principle means an elementary truth or power; so that in the view of such men, all machines, which perform their appropriate functions by motion, in whatever way produced, are alike in 'principle, since motion is the element employed. No one, however, in the least acquainted with law, would for a moment contend, that a principle in this sense, is the subject of a patent;

34 Boulton v. Bull, 2 H. Bl. 478. 35 King v. Wheeler, 2.B. & Ald. 350.

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and if it were otherwise, it would put an end to all patents for all machines which employed motion, for this has been known as a principle, or elementary power, from the beginning of time. The true legal meaning of the principle of a machine with reference to the patent act, is the peculiar structure or constituent parts of such machine. And in this view the question may be very properly asked, in cases of doubt or complexity, of skilful persons, whether the principles of two machines be the same or different? Now the principles of two machines may be the same, although the form or proportions may be different. They may substantially employ the same power in the same way, though the external mechanism be apparently different. On the other hand, the principles of two machines may be very different, although their external structure may have great similarity in many respects. It would be exceedingly difficult to contend, that a machine, which raised water by a lever, was the same in principle with a machine, which raised it by a screw, a pulley, or a wedge, whatever in other respects might be the similarity of the apparatus.”:36 “By the principles of a machine," says the same judge, in another case, “is meant the modus operandi, the peculiar device or manner of producing any given effect. If the same effects are produced by two machines by the same

36 Barrett v. Hall; 1 Mason, 470.

same.

mode of operation, the principles of each are the

If the same effects are produced, but by combinations of machinery operating substantially in a different manner, the principles are different.”:37

Sec. VI.-APPLICATION OF A PRINCIPLE.

Another word often used in connexion with principle, and with other words, in defining the subjects of patent rights, is application. The two questions in this case are, first, whether, though a principle in any sense may not be patentable, the application of that principle may be so ? and second, whether a manufacture, method, or principle in certain senses, being patentable in their character, any new application of such manufacture, method, process or principle, is the substantive subject of a valid patent? In answering the general question, whether a new application of either of these is a proper subject of a patent, we have not only to distinguish whether the thing to be applied may, or cannot be, itself the subject of a patent, but we have the additional uncertainty of meaning and ambiguity in the use of the word application. If by application be meant the mode of operating, or the mechanical combinations, means, or instruments, by which a principle or theory is carried into operation, in this sense, the new application of a theory or principle, may be the subject of a patent. The whole circle of inventions for which patents have been granted, consists of new applications (in this sense of the term) of the mechanical powers and chemical properties of matter. But if by new application be meant only the new use of a thing, requiring no new apparatus or instrument, and involving no invention whatever, such for instance as using a nail machine for making copper nails, which had been patented, or had before been used only for making iron nails, in this sense a new application cannot be patented. The proposition may then be laid down that a new application of a theory or principle, or of an art, process, or machine,

37 Whittemore v. Cutter, 1 Gallison, 478. The writer in the Westminster Review, No. 44, April, 1835, says, on this subject, “ There is another word, which, in patent causes, is used as a rival word to manufacture, but still more ambiguous in its meaning, and which, recommended by such ambiguity, is in very frequent requisition. The word is principle. To make this law-fantom, the witchcraft used by the lawyers consists in mingling three different meanings together, used by the aid of certain professional solemnities, producing a mystical word, capable of harlequinizing an idea into many various forms." The writer should have said, the word is harlequinized, not any idea ; and his own expression seems to be quite as mystical as any thing to be found in the arguments of the lawyers, or the opinions of the judges, whom he probably intends to include in the class of lawyers. The mystery is nothing more or less than the common fallacy in reasoning, of accepting and applying an ambiguous proposition that is true in one sense, and false in another sense, in the erroneous sense. This may be done in respect to manufacture, method, process, or principle, since each of them is, in some senses, patentable, in others, not so; and, therefore, wbether we say that each of them is or is not patentable, the proposition will be true or false, according to the sense in which the words are used and applied.

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