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the payment of the taxes, and accordingly that an application for a patent combining divers inventions, would be rejected. This may be a sufficient reason, and

yet it is not one of the most pressing importance, especially in the United States, where the tax is small, and intended only as a reimbursement of the expenses of clerk hire in the patent office. That this rule has been very liberally expounded in favor of patentees, appears from the fact that the reports do not present any case of a patent being objected to and declared void on this ground. M. Renouard, in the place cited above, considers the question as one submitted to the discretion of the executive offi

It has been incidentally said, by Mr. Justice Story, that the court does not go behind the patent to ascertain whether the requisite oath was taken, or the legal fee of thirty dollars paid." It would not follow from this, however, that the court would not notice that the specification was such as to combine independent inventions in the patent. There is this difference between a case of the non-payment of the tax, and the joining of different inventions, that the latter appears on the face of the patent, whereas the former does not so appear; and another difference is, that the executive officers are responsible for the collecting of the tax; whereas, their decision in construing the law as to questions affecting the validity of the patent, is not final, but only preliminary and provisory, being subject to the adjudications of the judicial tribunals, to whose judgment on such questions the inventor has a constitutional right. Upon all such questions, he is entitled to a hearing and trial. This seems, accordingly, to be a question properly cognizable by the courts, and they would probably adjudge a patent combining entirely distinct inventions upon different subjects, to be void. But they probably would not so adjudge, except in a very palpable case. The passage above cited from M. Renouard, suggests a very just and liberal mode of applying this rule, and one consistent with the practice both in England and the United States; for he says an application which should embrace more than one principal subject, or invention, would be rejected; that is, whatever is accessary and auxiliary to the principal subject, may be joined in the same patent, but nothing more.


13 Ch.7. s. 5. p. 293, 294.
14 Whittemore v. Cutter, 1 Gallison, 429.

This is a convenient, practical test in applying this rule ; for if two inventions have no dependence or connexion, and one is not accessary or auxiliary to the other, they are properly subjects of distinct patents.


We next consider whether a patent may be taken out for a part of a machine. A patent for an im

cal purpose.

But sup

provement is usually for a part of an entire thing, and often at least, if not most frequently, for something, that cannot be used separately to any practi

It is not necessary, then, that the subject of the patent or exclusive right should be capable of an independent separate use. pose the case of two persons, independently of each other, inventing the parts of a new machine, are they entitled to separate patents? Mr. Justice Story says, “if two persons invent several parts of a machine capable of a distinct use, then those parts might be considered as separate inventions, for which such inventor might perhaps be entitled to a separate patent."'16

This qualification that the inventions should be capable of a separate use, seems to present a pretty clear case of a right to separate patents. But if the parts belong essentially together, and are useless when separate, this is a plain case of joint invention; though the inventors may have had no communication with each other; and so a case in which separate patents cannot be taken out.

18 Stearns v. Barrett, 1 Mason, 153.


Title of the Patent. Form. Difference in Form be

tween English and American Patents. Construction of Patents.

Having considered what subjects of invention and discovery are patentable, and what party is entitled to a patent, and what things may be joined or separated, we come now to the inquiry, as to the mode of taking out a patent, and what steps and forms are necessary in order to secure the exclusive privilege granted by the patent acts. The principal subjects to be considered in this connexion, are the specification, the drawings, models, and specimens, the oath of the inventor, the petition, the payment of the tax or fee, the reference to arbitration in case of interfering claims, the letter patent, and the examination of the letter by the attorney general, and his certificate. It is proposed to notice here the different modes of granting patents in England and the United States, and as consequent upon this difference, a diversity in the rules of construction of patents. Unless this diversity is first noticed and kept in view, there will be some confusion and obscurity between the English and American cases on the subject of the specification.

The form of American patents is prescribed by the act of Congress of 1793, s. 1, which provides, among other things, that on a petition for the purpose,

the secretary may cause letters patent to be granted,

reciting the allegations and suggestions of the said petition.” Mr. Justice Washington ruled that a compliance with this requisition is material. In an action for an infringement of Evans's patent for the Hopperboy, it was objected that the patent did not recite the allegations and suggestions of the petition. Washington J. “If the allegations and suggestions of the petition are substantially recited, it will be sufficient. But in this case they are not.” He said the patent gave no description of the hopperboy and its use, and the manner in which it worked. The petition gave a minute and full description of it, which ought to have been substantially recited.' The English law contains no similar express provision, but the practice is to recite the allegations of the petition, and the provision of the American statute in this respect, is, no doubt, borrowed from the English practice.

In England the patent is granted before the specification is made, a certain time being allowed by the patent for enrolling the specification, varying from two to six months or longer, according to the circumstances, it being left to the discretion of the ex

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· Evans v. Chambers, 2 Wash. C. C. R. 125.

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