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tutional and void-it remains undecided by the tribunal of last resort how far the several States can grant monopolies, or whether they can grant any, consistently with the constitution and laws of the United States.


Character and Spirit of the Jurisprudence upon Patent Rights.

THE jurisprudence on patents has been said to constitute the metaphysics of the law. The difficulty of administering and giving a construction to this branch of law, lies, says Mr. Justice Story, "not so much in the general principles, as in the minute and subtle distinctions which occasionally arise in the application of these principles." For instance, the subject of a patent must be new, and useful, and clearly described, for so the law requires. There is not the least difficulty respecting these general doctrines; but when we come to inquire what is new, that is, whether the thing is so similar to, or


1 Barrett v. Hall. 1 Mason R. 472.

diverse from, what has already been done or produced, as to be substantially the same, or different, the questions are often of a subtile metaphysical character. The same remark is applicable to the question whether a thing is useful, and a decision on the other of these questions, relating to the sufficiency of the specification, involves a nice analysis of the invention and the description of it by the patentee. It follows, from this character of the jurisprudence on this branch of law, that the beneficial effect of the law depends quite as much upon the principles and spirit with which it is interpreted and administered, as upon the general provisions of the law itself, since it is to no purpose to provide for a temporary monopoly of a thing on condition that it shall be described with greater clearness and precision than the nature of the case admits of, or than can be attained by the skill of those whom the inventor must employ.2


If, therefore, the doctrine laid down by Lord Kenyon is to be adopted, the beneficial effect of the law as a reward to inventors, will be defeated. says, "I confess I am not one of those who greatly favor patents; for though, in many instances, the

2 Mr. Arthur Aikin, Secretary to the Society for Encouragement of Arts, in his testimony before the Committee of the House of Commons on this subject, in 1833, thinks that the cases turn upon points of law, because neither the judges nor jury understand the matter practically; and Mr. Newton says the merits rarely come in question. Mr. Farey, another witness, says, the judges are astute in observing flaws. Westm. Rev. No. 44, p. 247. Foster's Am. Ed.

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public are benefited by them, yet on striking the balance upon this subject, I think great oppression is practised on inferior mechanics, by those who are more opulent." This is stepping aside a little from the judicial, and assuming the legislative functions, for the favor to be extended to patents is properly a matter to be determined by the law, not by the discretion of the judge, or his opinion as to the effect of the law on inferior mechanics. The operation of the patent law of England to the prejudice of small mechanics, if it in fact exist, is owing, in part, to the very strictness and illiberality of construction, which Lord Kenyon professes to favor, since it tends to render the validity of patents so precarious, that only men of ample fortune can afford to run the hazard of speculating in this species of property; especially since the practice mentioned by Lord Brougham has prevailed, who states that it not unfrequently happens that those who are interested in quashing a patent make up a stock purse, to defray, at the common charge, the expenses of defending those who infringe the patent, against suits by the patentee, who is liable thus to be ruined by the expense of law suits, even though his patent may be adjudged to be valid.^ The enormous tax and charges upon patentees in

8. T. R. 98. See also opinion of Dallas J. in Hill v. Thompson, 2 J. B. Moore, 458.

*Speech in the House of Lords, June, 1835.

England, have had the same tendency. These two causes have gone far towards defeating the objects of the exception of inventions from the prohibition put upon monopolies in general, by the statute of James 1.5 Lord Chief Justice Abbot, since Lord Tenterden, admits that the patents have been too illiberally construed. And in more recent cases the principles and spirit of the English jurisprudence on this subject, have been much ameliorated and made more conformable to the motives and policy of the patent laws. In a more recent trial, before Mr. Justice Patteson, reported by Mr. Godson, the instructions to the jury breathe the true spirit of the law.

In the United States the jurisprudence on this branch of law has in general been marked by more broad and liberal views. Its leading principles cannot be better expressed than in the language used by Mr. Justice Story, in the case of Ames's papermaking machine. He says, "Patents for inventions are not to be treated as mere monopolies, odious in the eyes of the law, and therefore not to be favored, but on the contrary to be construed with the utmost rigor as strictissimi juris. The Constitution of the United States, in giving authority to Congress to grant such patents for a limited period, declares the

See Evidence taken before the Committee of the House of Commons, 1832, Westminster Review, No. 44, April, 1835, on this subject.

'The King v. Wheeler. 2 B. & Ald. 345.

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object to be to promote the progress of science and the useful arts, an object as truly national and meritorious, and well founded in public policy, as any that can possibly be the object of national protection. Hence it has always been the course of the American courts (as it has latterly been that of the English courts also) to construe these patents fairly and liberally, and not to subject them to any over-nice and critical refinements. The object is to ascertain what, from the fair scope of the words, is the nature and extent of the invention claimed by the party, and when the nature and extent of the claim is apparent, not to fritter away his rights upon formal and subtle objections of a purely technical character.""

The writer in the Westminster Review, already quoted, goes into an argument and cites examples, to prove that the illiberal and captious jurisprudence on this branch of law, is owing to the incompetency of the judges to understand the merits of the cases, and a consequent inclination to put the decision upon legal technical points, with which they were more conversant. He does not proceed to the proposal of any remedy, and accordingly the argument and citations stand as merely a charge of incompetence or want of fidelity on the part of the judges; and of these the reader is left to infer the former; the latter being indeed totally destitute of pretence, for no one


"Ames v. Howard, C. C. U. S. Mass. Oct. 1833.

8 Westm. Rev. No. 44. April, 1835. p. 251, 252. Foster's Am. Ed.

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