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system of jurisprudence, and the doctrines and precedents of each are not merely illustrative of the subject in respect to the others, but in some degree mutual authorities. And the French authors and also the American writers and judges have so treated the subject; and English authors have recently begun to look at the American and French legislation and jurisprudence on this as on other branches of law. Both the English and French statutes, together with our own, will be given at length in the Appendix; it will be sufficient, in this place, to give an abstract of each, with some general observations, as introductory to the examination of the jurisprudence on each branch of the subject, since a general view of the whole ground will facilitate our researches in each division.
The French law of the 7th of January 1791,4 after stating, in the preamble, that an inventor has an indisputable property in his discovery—that from neglect to recognise and protect this species of property in France, many distinguished French artists had emigrated and carried with them into foreign countries their inventions, of which France ought to have reaped the benefit; and finally that all the principles of justice, of public order and national interest, imperiously called upon the government to fix the attention of the French citizens thereafter upon this
Renouard, p. 423.
species of property,—proceeds to make the following enactments : 1. Every discovery or new invention, in all kinds of industry, is the property of the inventor; and the law guaranties to him the full and entire enjoyment of it according to the mode and for the time thereinafter provided. 2. An improvement shall be considered an invention within the meaning of the law. 3. The person who may introduce a discovery into France from abroad is to enjoy the privilege of an inventor. 4. Every one who wishes to secure to himself the advantage of this species of property must address to the proper department of the government a statement in writing of the kind of invention for which he asks a patent, and furnish an exact specification of its principles, materials to be used, and processes, accompanied by suitable plans, drafts, designs, and models. 5. As to objects of general utility, but simple in execution, and too easy of imitation to be the subjects of commercial speculation under the privileges of a temporary monopoly, and in all cases where the inventor may so choose, he may apply directly to the government for a reward, instead of taking out a patent. 6. To those who may prefer the honor of conferring the benefit of their inventions upon the nation directly, and shall establish, by the prescribed modes, the utility of their inventions, shall be entitled to a recompense out of the fund destined to the encouragement of industry. 7. The enjoyment of this species of property is assur
ed by a title or patent. 8. Patents are given for five, ten, or fifteen years. 9. A patent for an imported invention is not to extend beyond the period for which it
may be patented in a foreign country. 10. Patents are to be enrolled in a public office. 11. A catalogue of inventions kept in the public office, and also the specifications, shall be open to be consulted by all the citizens; unless the legislature, on application of the inventor, should decree that the specifications may be kept secret, after an examination of them by commissioners appointed by the government, who are to judge and finally determine on their exactness and sufficiency. 12. The patentee may, on giving sufficient security for indemnity, require the seizure of articles made in contravention of his patent, and the party infringing his patent, being convicted, on judgment being given against him, shall, besides the confiscation of the article, pay damages to the patentee according to the importance of the infringement, and also shall forfeit to the benefit of the poor of the district, a sum equal to one fourth part of the damages, not exceeding, however, 3000 livres for the first infringement, and double that sum for a subsequent one. 13. In case the patentee fails in his suit he shall
pay costs and damages to the defendant, and also forfeit a fourth part of their amount to the use of the poor, not exceeding 3000 livres.
14. The patentee may use his patent himself, or authorize others to do so, and the patent right shall be considered as personal
property. 15. At the expiration of the privilege the specification shall be published, (unless the legislature otherwise orders,) and the invention become free to all. 16. The specification shall also be published and the invention become free to all others in case of the forfeiture of the patent, which may be incurred, 1st. in case of the patentee's concealing the true method of working; 2d. or having used processes not described in his specification ; or, 3d. in case of the invention having been described in a printed and published work; or, 4th. unless the patentee shall, within two years from the granting of the patent, have put his discovery into use; or, 5th. if the patentee, having obtained a patent in France, shall obtain one in a foreign country; and 6th. every assignee of the patent shall be subject to similar obligations and conditions. 17. Existing patents are not annulled, but made subject to this law. 18. The tax on patent rights shall be subsequently determined on.
Such is an outline of the French law on this sub
* Propriété mobiliaire, an expression not precisely equivalent to our expression personal property, but in this connexion this English phrase substantially expresses the meaning.
6 M. Renouard, p. 283, decidedly objects to this provision, and with good reason, since a monopoly of the same thing in other countries would certainly leave the French manufacturers and artists a fairer chance of competition in the markets of third countries, than if the manufacture were free in all foreign countries, and it would in such case be immaterial as to the effect upon the industry of France whether the foreign monopolies were held by the French patentee or any other monopolist.
ject. This law was passed in January; in the months of March, April, and May, following,' decrees were passed, designating the officers to whom the granting of patents should be committed, directing the mode of application, the specifications, models, and drawings; that different inventions shall not be joined in the same application, the manner of proceeding when the invention should be ordered by the legislature, to be kept secret; providing for the prolongation of expired patents, for a period not exceeding that for which the legislature is elected; for the payment of the tax, from the proceeds of which, all the expenses attendant on the granting of patents are to be defrayed, and no part of them from the public treasury, that is, if the second instalment of the tax, being due six months after the grant of the patent, shall not be punctually paid, the patent shall be forfeited; the mode of proceeding when the patentee wishes to make some modification of his specification after his patent is granted ; that in case of a patent for an improvement on a patented invention, the original inventor shall have no right to use the improvement, nor the inventor of the improvement, any right to use the original invention. A mere change of form or proportions shall not, any more than ornaments, of whatever kind they may be, be ranked as an improvement for which a patent can be claimed.' Pa
7 Renouard, p. 414.8 p. 441. ' Law of March 29th, 1791. t. 2. s. 8. Renouard, p. 441.