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vided the secretary should deem such model to be necessary.”


By the act of 1836, section 6, “Any person or persons, having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter, not known or used by others, before his or their discovery or invention thereof, and not at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer, and shall desire to obtain an exclusive property therein, may make application in writing to the commissioner of patents, expressing such desire, and the commissioner, on due proceedings had, may grant a patent therefor.”

The provisions of the act of 1793, s. 1, on this subject were not literally the same, though they were substantially, for the above section is merely an expression of the construction already put upon the former act, excepting that part which directs the application to be addressed to the commissioner of patents instead of the secretary of state.

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• See exposition of the act of 1793, by Mr. Justice Story, supra, pp. 156, 157.

Sec. V.- THE FEE.

A patent is, as we have seen, a reward for a meritorious consideration, and a grant for a valuable one,and the laws by which provision is made for granting these monopolies are founded on a public policy peculiar to useful inventions and discoveries. The practice of selling monopolies, or granting them, except on these grounds, was expressly abolished in England by the statute of 21 James I. c. 3, and is inconsistent with the sound principles of legislation, as at present very generally admitted. It is not consistent with those principles to demand any price in money from an inventor, as the whole or a part of the consideration for the exclusive privilege granted to him. And yet it is not a little remarkable that in both England and France the sum paid by the inventor is considered to be in part the price of his privilege, and is frequently so represented by the persons examined before the committee of the House of Commons in 1829.

The patent laws of the United States are more in conformity with the principles above stated. The law of 1836, section 9, provides

" that before any application for a patent shall be considered by the commissioner, the applicant shall pay into the

• Ch. I.

treasury of the United States, or into any of the deposite banks to the credit of the treasury, if he be a citizen of the United States, or an alien and shall have been resident in the United States for one year next preceding, and shall have made oath of his intention to become a citizen thereof, the sum of thirty dollars; if a subject of the king of Great Britain, the sum of five hundred dollars; and all other persons, the sum of three hundred dollars. And the moneys received into the treasury under this act shall constitute a fund for the payment of the salaries of the officers and clerks, and all other expenses of the patent office."

One reason of the distinction between the fees paid by Americans and foreigners is, I presume, the greater fees paid for patents abroad, and the amount demanded of a subject of Great Britain is greater than that demanded of other foreigners, because a greater sum is demanded in England than in other foreign countries. Another motive may be to prevent patents being taken out by foreigners for inconsiderable inventions.

The fee is graduated upon the principle of merely defraying the expenses of the patent office out of the contributions made by the patentees. This is the utmost extent to which the exaction can be justified, and it is questionable whether it ought not to stop short of this. The granting of patents is a matter in which the public has as great an interest

on one side, as patentees have on the other; and if the latter are required to defray one half of the expense of clerk hire and other expenses incidental to the executive administration of these laws, it is quite their full proportion, especially since they are put to the expense of models to be deposited in the patent office, merely for the public benefit, and not at all for their own. This fee, as fixed by the law, is not a material obstacle to the beneficial operation of the patent laws. *

The exactions in France are higher, being divided into a tax (taxe) and expenses (frais), the latter being between nine and ten dollars, (fifty francs.) The tax varies with the duration of the monopoly, and thus, as well as by the name, countenances the construction that it is in part the price of the monopoly. For a patent for five years it is three hundred francs, for ten, eight hundred, and for fifteen, fifteen hundred; an amount sufficient to be a material obstacle in the way of the beneficial operation of the provisions of the law intended for the encouragement of inventive genius."

4 As small as the fee is in the United States, the committee of Congress who reported the law of 1836, stated that the surplus accruing from this fee is 152,000 dollars. · The same committee report that the average annual number of patents issued from 1790 to 1800 was 26; from 1800 to 1810, 91 ; from 1810 to 1820, 200; and during the last ten years preceding the time of making the report, 535; and that the number in 1835 was 776; and that the whole number issued at the patent office up to March 31st, 1836, was 9,731, being more than double the number issued in France or England during the same period.

The discouragement interposed by the exactions under the English patent law is still more oppressive, the expense of obtaining a patent for England being about six hundred and ten dollars ; for England and Scotland, ten hundred and sixty-five dollars; for England, Scotland and Ireland, seventeen hundred and fifty dollars. This large tax has contributed materially to diminish the usefulness of the English patent law.” It ought to be kept in mind by legislators that the persons most likely to make mechanical inventions, and to whom, in fact, the public is mostly indebted for them, are generally not able to bear heavy pecuniary burthens. The consequence of imposing such burthens is, that they often entirely lose the fruits of their ingenuity by not being able to take out patents, or are obliged to throw a greater part of them into the hands of persons of wealth, to whom they are under the necessity of resorting to make the advances necessary for securing the privilege.

If it be alleged in justification of these exactions, that they discourage applications for patents for

5 The annual revenue from patents in France was stated by M. Renouard, in 1825, to be about 15,000 dollars. C. 3. 9 3. p. 162.

6 Report of Com. of House of Com. 1829, App. 7 Keni's Comm. v. 2, p. 270.


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