ed for the space of eighteen months from the time. of granting the patent to put and continue the invention on sale upon reasonable terms. The defendant, if he allege a previous public use, must in his notice state the persons by whom and the places where the invention was so used. The fact of the previous use of the invention abroad is not a defence, if it was not known to the patentee and if it had not been described in some printed work, and had not been patented. If the suit fail on the

ground of the specification containing too much, and it appear that the defendant had used the part for which the patentee was entitled to a patent, the court has discretion as to awarding costs. s. 15.31 In case of interfering patents, or an application which interferes with a patent, the question may be tried, and the commissioner is to be governed by the decision of the court as to issuing a patent.32 s. 16. The circuit court has original jurisdiction of patents at law as well as in equity. s. 17. A patentee or his assigns may apply to the commissioner for an extension of the period of his patent, on paying a fee of forty dollars; and on such application the commissioner must give notice of such application in a Washington paper and such other principal newspapers as he may think proper, published in the part of the coun

try most interested against the application. And the secretary of state, the commissioner of the patent office and the solicitor of the treasury are constituted a board to award on the application, on an account of the profits and expenses on the patent having been exhibited to them, and if they award in favor of the application the patent is to be extended for seven years. But no extension is to be granted after the expiration of the term for which the patent was granted. s. 18.53 A library is to be attached to the patent office, to which an annual appropriation of fifteen hundred dollars is made. s. 19.$4

33

A constitutional question has arisen on this subject, viz. whether a State has still the power of granting monopolies, notwithstanding the provision of the Constitution giving limited power of legislation on patents to Congress, and notwithstanding that Congress has used the power thus conferred, by passing laws in pursuance of it. This question was very much agitated in the State of New York in regard to the exclusive privilege of steam navigation granted, in that state, to Livingston and Fulton. The question is one of great importance, and though that case was decided in the Supreme Court of the United

33 New.

"No provision is made for repeal of a patent on scire facias or motion of defendant in an action for an infringement.

States, 25 yet as the decision turned upon a construction of the acts of Congress relating to trade, the general question as to the authority of the States to grant patents and exclusive privileges, still remains without any judicial determination in the court of paramount jurisdiction on the subject.

In the year 1798, an act was passed by the legislature of New York, by which, after reciting that "whereas it had been suggested to the people of this State, represented in senate and assembly, that Robert R. Livingston was the possessor of a mode of applying the steam-engine, to propel a boat on new and advantageous principles," a grant was made to him of "the sole and exclusive right and privilege of constructing, making, using, employing and navigating, all and every species or kinds of boats, or water craft, which might be urged or impelled through the water, by the force of fire or steam, in all creeks, rivers, bays and waters whatsoever, within the territory and jurisdiction of this State," for the term of twenty years from the passing of the act, provided, that he should, within twelve months, construct a boat of at least twenty tons capacity, to be propelled by steam, the mean progress of which, with and against the ordinary current of the Hudson river, taken together, should not be less than four miles an hour. The efforts of Livingston to accom

25 Gibbons v. Ogden, 9 Wheat. 1.

plish this object were ineffectual, and in 1803, another act was passed, by which the privileges granted to him by the act of 1798, were extended to him, and Robert Fulton, whom Livingston had associated with himself in the enterprise, for twenty years from 1803; and in 1808, these privileges were extended for a still further period of time. It appeared that Livingston and Fulton had succeeded in constructing a boat, possessing the properties required by these acts of the legislature; and that Van Ingen and others, without any license from Livingston and Fulton, had also set in motion on the Hudson, a steam-boat, which was employed in navigating and carrying passengers between the cities of New York and Albany. Livingston and Fulton applied to the court of chancery for an injunction to restrain Van Ingen and others, from using their boat in the navigation of the Hudson. The injunction having been refused by that court, the applicants appealed to the Court of Errors. The respondents contended that the acts of the legislature under which the appellants claimed, were contrary to that clause in the constitution of the United States, vesting in Congress the power "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Thompson J. said, that "it was an undeniable rule of construction, applicable to the constitution of the United States, that all pow

ers and rights of sovereignty, possessed and enjoyed by the several States, as independent governments, before the adoption of the constitution, and which are either not expressly or by necessary implication, delegated to the general government, are retained by the States. This was the object intended to be secured by the 10th article of the amendments of the constitution, which declares, that the powers not delegated to the United States by the constitution, nor prohibited by it, to the States, are reserved to the States respectively, or to the people. If then, the grant of the privileges claimed by the appellants, would, before the adoption of the constitution, have been a legitimate exercise of State sovereignty, it would be a strained construction of that instrument, to say such sovereignty has been thereby surrendered by the State. This power is certainly not denied to the States, nor exclusively granted to the union, by express terms; and those powers which are exclusive, by necessary implication, must be such as are created by the constitution, and which did not antecedently form a part of State sovereignty, or the objects of which, from their nature, are beyond the reach and control of the State governments. An express prohibition to the States, against the exercise of powers of that description would have been useless and absurd. Thus Congress have power to borrow money on the credit of the United States. This is an exclusive power by necessary implication. It is a power