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for a combination, and the other for a part of the things combined.22 It follows, accordingly, that if the patent is for a combination merely, the use of any one or more of the things combined, but not of the whole, is not an infringement of the patent right for the combination.

CHAPTER XVIII.

Jurisdiction of Patents.

By the act of 1836, s. 17, it is provided "that all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions and discoveries, shall be originally cognizable, as well in equity as at law, in the Circuit Courts of the United States, or any District Court having the powers and jurisdiction of a Circuit Court;" which courts have power to grant injunctions to prevent the violation of the rights of any inventor. Provided, however, that a writ of error or appeal shall lie to the Supreme Court in the same manner as on other

22 Treadwell and Watson v. Bladen, 4 Wash. C. C. R. 709.

judgments and decrees of Circuit Courts, "and in all other cases in which the court shall deem it reasonable to allow the same."

The jurisdiction was in the Circuit Court before. the passing of this law, under that of 1800. One alteration is made in giving an appeal where the court shall deem it reasonable.

The State courts have not a concurrent jurisdiction with the Circuit Courts of the United States. In an action brought for an infringement of a patent right in the State courts of New York,' the court said, “As the judicial power of the United States extends to all cases of law and equity arising under the laws of the United States; and as the act of Congress on the subject of patent rights, has declared that the suit for the infringement of them shall be brought in the Circuit Court of the United States, and gives the court power in such cases to declare the patent void, the State courts have, of course, no jurisdiction in the case." It had been held in New York, previously to the passing of the above act of 1819, that a case in equity on a patent was cognizable before a State court of equity, as Congress had not then conferred this jurisdiction on the Circuit

1 Parsons v. Barnard, 7 Johns. R. 144.

2 See also Kent's Comm. vol. 2, p. 368, sect. 36, and Burral v. Jewett, 2 Paige's R. 134.

Courts of the United States.

All questions of a

juridical character relating to patents belong properly to the jurisdiction of the judicial tribunals, in distinction from the legislature, and it has been accordingly doubted whether Congress has a right to decide whether a person is the original inventor of what he claims as his invention, so as to preclude judicial inquiry.1

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Though the State courts have no direct jurisdiction of patent causes, still the question of the validity of a patent may come incidentally before them, as in case of an application to a chancery court of a State to set aside a contract relating to a patent right, as founded in a mistake, or a suit on a promissory note where the defence is want of consideration, the note having been given for a share in a patent right which the defendant alleges to be void on the ground that the patent was fraudulently obtained."

The State courts have also jurisdiction of cases arising on the grant of patents or other monopolies by the States, as far as valid grants of this descrip

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Livingston et al. v. Van Ingen et al. 4 Hall's Law Journal, 56; Coxe's Digest, 534.

* Story's Comm. on the Constit. v. 3, p. 49, where is cited Evans v. Eaton, 3 Wheat. R. 454.

* Cone v. Baldwin, 12 Pick. R. 545.

• Burrall v. Jewett, 2 Paige's R. 134.

7 Bliss v. Negus, 3 Mass. R. 46.

tion can be made by a State. Thus, it having been held by the court of chancery, and, on appeal, by the court of errors, in New York, that the several acts of the legislature of that State, granting to Livingston and Fulton, for a term of years, the sole and exclusive right of using and navigating boats or vessels moved by steam or fire, in the waters of the State, were valid, it was also held, as a consequence of that decision, that an injunction might be issued by the court of chancery of the State to restrain the citizens of another State from navigating the waters of New York by steam boats. But an appeal lies to the Supreme Court of the United States in such case, if the validity of an act of Congress is brought in question and the decision of the State court is against it.

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* Gibbons v. Ogden, 17 Johns. R. 488.

CHAPTER XIX.

Action at Law for an Infringement.

Sec. 1. Form of Action.

2. Parties.

3. Declaration.

4. Plea. Defences. Notice.

Sec. I.-FORM OF ACTION.

By the fourteenth section of the act of Congress of 1836, it is provided that in case of an infringement of a patent right, damages "may be recovered by action on the case." This is merely a provision by statute for the remedy to which the proprietor of a patent would have been entitled by the common law. It is said in an old case that an action for an infringement may be maintained on a defective patent liable to be repealed, as long as it remains unrepealed; but this is not law; if the patent is proved to be void, the action fails.

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1 Bull. N. P. 76; 1 Chit. Pl. 159, 5th Lond. and 6th Am. ed.; Clements v. Goulding, 11 East, 224; S. C. 2 Camp. N. P. 25; Roworth v. Wilkes, 1 Camp. N. P. 94; 1 Saund. Pl. and Ev. 336, (412.)

2 Butler's case, 2 Ventr. 344.

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