« iepriekšējāTurpināt »
geographical extent, and so be coextensive with the authority of the state or government granting it, or may be confined to a certain territory ; so in respect to duration, it may be for an indefinite or a limited period ; and again in its nature or character it may be either absolute, or subject to certain qualifications and conditions. So again in respect to the persons who may become interested, it may be limited to the patentee personally, as is usual in grants of offices, or extend to him, his personal representatives and assigns.
Principles and Motives of the Legislation on Patent
Property in an art, process, or method, is not, like most other species of personal property, susceptible of exclusive manual possession, and, therefore, is not of a description to arise in a very early and rude state of the laws and jurisprudence of a community ; for though a machine or a composition of matter may be appropriated by exclusive possession, it is otherwise with the art of making the machine, and the method of compounding the materials, and these, as will subsequently be shown more particularly, are the subjects of the discovery, the exclusive right to which is granted by a patent. In respect to things that can be visibly and exclusively possessed, the producer or first occupier is acknowledged, by the laws of nature, to have established his right of property by his possession, and the laws then supervene to guaranty and protect the right. But the exclusive right to the use of a discovery in the arts, must originate in a conventional law : the law must be expressly passed or tacitly recognised, before this right of property can exist.
The species of property arises from improvements in the arts, and it is acknowledged and secured only in an improved state of the laws.
M. Renouard, the author of an elaborate French work on Patents, goes into a particular discussion of the question whether an inventor has, by the principles of universal equity, and independently of the positive law, an exclusive right to his invention; and he very satisfactorily establishes the conclusion to which every mind is constrained to yield assent, that no such natural right exists. Indeed there is no plausible ground whatever on which to rest such a right, since the fact of one person being the first-inventor or discoverer, affords no pretence for disfranchising others of the right, in their turn, of making and using the same discovery.
If then there is no such natural right, the question naturally arises, whether the law, granting the exclusive privilege to an inventor, is not unjust? whether it does not wrong other persons, by depriving them of their natural rights? It undoubtedly does take away rights which they would otherwise have, but it does not thence follow that it is unjust. It is the effect of many laws to take away rights which men would enjoy, if each one existed in a state of entire independence of all others, if such a condition were possible; but it does not thence follow that the laws are injurious to any one, since they give more than an equivalent for what they take away. The rights taken from the members of the community generally, are, first, that of discovering or inventing the same thing, independently of the prior invention, and that of using and vending it for a limited time; and second, the right of profiting by the prior invention or discovery of another, for a limited time. This last right is evidently subject to some qualification, for it is certainly just that the inventor should have a greater advantage of his invention than others, whereas if he is exposed to a universal competition in the manufacture and use of his invention, the probability is, that others will turn it to better account than he can himself, since the chances are very great that some one may possess greater advantages for prosecuting the manufacture and selling the article. Without some assistance from the legislature, therefore, he will be deprived of what he is equitably entitled to. If it be then admitted that he is equitably entitled to the exclusive, use and sale for a time, against all others who do not make use of the same invention independently of him, and without deriving any hint or facility from his prior ingenuity or experiments, we have sufficient ground for a law giving him the exclusive right against all others for a time, since it is a matter of too much difficulty and intricacy of proof, to distinguish the cases of others who have made the same invention without
assistance from his ingenuity, from those of mere imitations. The law, in order to be practicable and convenient to be administered, must give the exclusive right. To this point the law is only an equitable regulation, which does not propose to deprive others of any right in behalf of inventors, but incidentally deprives them of a right, which they would otherwise have, because it is necessary for the purpose of doing justice to inventors.
The granting of patents is not, accordingly, a mere matter of favor, as it has sometimes been represented by judges,' but an equitable and just claim upon the government, as much so as the claim to protection of individual industry and private property. “The patentee,” says Lord Eldon, “is a purchaser from the public, being bound to communicate his secret to the public at the expiration of his patent."? This right is recognised in very strong and absolute terms in the decree of the French National Assembly. The language is, “Every new idea, of which the manifestation or development might be useful to society, appertains originally to the person who has conceived it; and not to regard a discovery in industry as the property of the discoverer, would be to attack the rights of man in their essence.” This language is, however, too comprehensive, as we have already suggested, that the granting of a perpetual exclusive right to an invention, would be a material retrenchment of the rights of others, and so the National Assembly doubtless considered it; for after this preamble they proceed, not to grant such a perpetual privilege, but only a temporary monopoly.
1“ Although,” says Mr. Justice Bayley, “the thing may be new in every particular, it is in the judgment of the Crown whether it will will not, as a matter of favor, make the grant.” Brenton v. Hawkes, 4 B. & Ald. 552.
M. Renouard“ remarks, that“ an inventor has not, independently of positive laws, any exclusive
property in his invention, any longer than he keeps it secret. That is, others have a right to make the same discovery themselves, independently of him, or to avail themselves of the inventor's disclosure of his secret, and this conflicting right of others, intercepts, and in
2 Williards v. Williams, 3 Meriv. 157. * January 7th, 1791. Renouard, p. 423. Ed. of 1825. 'P. 32, c. 2, s. 1.