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CHAPTER IV.

Legislation on Patent Rights in Great Britain, France,

and the United States.

Sec. 1. British Legislation.

2. French Legislation.
3. Legislation of the United States.

Sec. I. -BRITISH LEGISLATION.

PATENT

TENT Rights are a surviving branch of the great system of monopolies which formerly covered almost all the mechanical arts, and many branches of foreign trade, in modern Europe down to the middle of the seventeenth century, remnants of which, in other instances than patent laws, still lurk in several countries, to this day. Before that period, indeed, the whole frame of civil society, from the rights of the sovereign down to those of the day-laborer, was an entire system of exclusive privileges, that is, of monopolies. The sovereign executive administration in a state was the monopoly of one family, while its subdivisions and subordinate offices were parcelled out among other families. The legislative sovereignty was in like manner monopolized by a single family or shared among several, to them and their heirs respectively. And so on of the magistracies, commands, jurisdictions, trades, and pursuits of almost every description. The genius of monopoly predominated in every department of legislation, administration, and of industry, excepting agriculture and pastoral pursuits. The legislators were political monopolists, and their legislation, by direct grants, or by the recognition and protection of privileges arrogated by individuals, companies, or classes, in accordance with the principles of their system, converted the rest of the community into monopolists.

Such was the origin of patent rights; but it would be foreign to our present purpose to go into a survey of monopolies in general. The point of time at which we commence is when legislation began the suppression of other monopolies, for then patent rights began to be specific subjects of legislation. The statute of 21 James I. c. 3, (1623,) while it abolished monopolies generally, made an exception of existing letters patents and grants of privilege for the term of “one and twenty years or under, of the sole working or making of any manner of new manufacture within this realm, to the first and true inventor or inventors, so they be not contrary to the law or mischievous to the state, or generally inconvenient,” and also an exception of future grants of letters patent for the term of fourteen years or under; and still further an exception of any grant, privilege, power, or authority theretofore granted, allowed, or confirmed, by act of parliament, then in force, and so long as the same should remain in force. And this

provision constitutes the whole legislation on patent rights by the British parliament, except private acts respecting particular patents, down to the year 1835,

, when the act of 5 and 6 William IV. c. 83, was passed, by which it is provided, among other things, that the patentee may enter a disclaimer of any part of his specification, s. 1. If a verdict or decree shall pass for patentee on the merits in any suit, the judge may grant a certificate, which being given in evidence in any other suit, shall entitle the patentee, on a verdict in his favor in any other suit, to triple costs. s. 3. A penalty of 50£ is incurred by using the mark of a patentee. s. 7. These acts constitute the whole of the British legislation on this subject.

From the time of the passage of the first of the above acts, monopolies have been considered to be subjects of legislative control and regulation. In a case before Lord Hardwicke, in 1742, on an application for an injunction against the use of a stamp on goods, the exclusive right of using which was obtained by the applicant under a charter of Charles I., the Lord Chancellor refused the injunction, saying that the rule the court had governed itself by, was, whether there was any act of parliament on which the restriction was founded, and that the court would never establish a right of this kind, claimed by a charter only of this kind, unless there had been an

action to try the right.' That is, in effect, he would presume the grant by the crown, unless authorized by act of parliament, to be void; this presumption might, however, be rebutted by a judgment at law. The exclusive right to use such a mark would stand on the same ground as before the statute of monopolies where there had been no charter or patent for it. In the 22 Elizabeth an action on the case was brought in the Common Pleas, by a clothier, against another of the same trade, for using the same mark on his cloth, and it was resolved that the action would lie. (Anonymous, cited in Popham, 144.) Lord Hardwicke, in commenting on this case, in 2 Atkyns, 485, remarked, that it was not the single act of making use of the mark that was sufficient to maintain the action, but doing it with a fraudulent design, to put off bad cloths by this means, or to draw away customers from the other clothier. And there is no difference between a tradesman's putting up the same sign, and making use of the same mark, with another of the same trade.

Though the inventor has a just title to some of the advantages of his invention, yet courts have been very cautious of recognising any property in an invention, independently of a grant by the government. Even when inventors, not intending to dedicate their discoveries to the public, have communicated their

· Blanchard v. Hill, 2 Atk. 485.

secret to others in confidence, who have betrayed that confidence, and endeavored to take advantage of the invention to the prejudice of the inventors, courts of equity have still refused to interfere to restrain the fraud, but have chosen to leave the complainant to his remedy at law against the breach of contract or the fraud of the wrong-doer.?

Sec. II.-FRENCH LEGISLATION.

The French legislation on this subject has its date in 1791, during the agitation preliminary to the revolution, a century and a half posterior to the English, and contemporaneously with that of the United States, both having borrowed from the English, each adopting, to a greater or less extent, and expressly enacting, the construction which had been put upon

the fifth and sixth sections of the English statute, by the English courts. The legislation of the three countries on this subject, therefore, being parallel and similar, and that of one being the model, the leading principles of the law, with some exceptions that will be pointed out, are common to them all. The administration of these laws in each country may accordingly be considered a branch of the same

2 Williams v. Williams, 3 Meriv. 157. * Renouard, c. 3. s. 2. p. 136.

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