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at all acquainted with the history of English jurisprudence for a long series of years, will for a moment think of drawing in question the general integrity and laborious fidelity of the English judges, for in these respects the judges of no country stand above them. Still on this subject it is admitted that at least very many of them have fallen into a narrow and inadequate system of jurisprudence. The fair inference, however, is not, as the writer seems to insinuate, that jurisconsults by profession are not suitable judges in cases of patents. The same objections would lie against professed jurisconsults as advocates, yet no patentee, having a controversy on the subject of his patent, doubts being able to find an advocate capable of understanding his invention. The judges are not less likely to be able to understand the principles of an invention than an advocate. It would evidently be quite impracticable to procure judges or even jurymen, who have actually worked at or practised all the innumerable trades and professions by which civilized society is diversified, nor would it be desirable were it practicable. It is then quite nugatory to object that judges have not practical experience in any trade to which any particular patent relates. It is enough that they understand the law of patents. Were tradesmen to be appointed judges, any one would understand but one trade, when the cases arising on patents relate to a thousand; and then the still stronger objection would be, that he would not understand the law of that particular trade. The only remedy for the inconvenience mentioned, if it indeed be one, would be the selecting of special juries. This is the conclusion to which the remarks of the writer just referred to, would tend, though he does not state it specifically. Whether this would be expedient it is not the place here to discuss, the only object at present being to show that no amelioration of the jurisprudence on the subject of patents, could be expected from any
different mode of constituting the judicial tribunals.
CHAPTER VI. i brolisa What Persons are entitled to Patents, and capable
of taking them out.
Sec. 1. Mere Introducers of an Art or Machine.
2. Joint Patentees.
Sec. I.-MERE INTRODUCER OF AN ART OR MACHINE. WE
E are next to inquire what party is entitled to a patent for any particular invention, and what persons in general are permitted to take out patents. And in the first place the patentee must be the inventor. Mr. Godson remarks, that “ the character of an inventor may be obtained by a person in three ways, by bringing with him and publishing to his countrymen the productions of the genius of foreigners ; by publishing what others as well as himself have found out at home; or by publishing what he himself has discovered." 1 He does not mean that the publisher of another's invention is entitled to a patent for it, but that among several who simultaneously discover the same thing, the first who applies for a patent, and publishes it, is entitled to the monopoly. Two descriptions of persons then are entitled to patents, namely, the inventors of a thing, and the introducers of what others have invented abroad, but which was before unknown in England. The doctrine of the English jurisprudence as to the right of importers of an art or machine, has, as we have seen, been expressly incorporated into the French law.
The law of the United States differs from that of England and France in this particular, by limiting the right to take out a patent, to the original inventor; it does not give the privilege to a person who merely introduces a foreign invention. The statute of 1793 gives the privilege to the inventor, and requires that he shall make oath that he verily believes that he is the “true inventor,” which words have been construed not to be applicable to the importer of another's discovery ; though the expressions do not exclude such a claimant in any stronger terms than the English statute of 2 James I., the fifth section of which excepts from the general prohibition of monopolies, those theretofore granted of the “sole working or making of any manner of new manufacture within this realm, to the first and true inventor or inventors.” And the sixth section, which provides for the future grant of monopolies, is in precisely the same words in this respect. As it had been customary, before the passage of that act, to grant patents to the first introducers of foreign inventions into England, who were accordingly placed upon the same footing as inventors in respect to this privilege, when the statute made an exception of patents for inventions from the general suppression of monopolies, it was very naturally construed to except those inventions introduced from abroad
*Ch. 2. p. 59.
well as others, and the words of the sixth section, describing the persons entitled to future grants of patents, being the same as those of the fifth section in relation to the then existing patents, the same construction was given to them. This construction has never been given to the American law of 1793. It is an essential qualification for the claimant for a patent in the United States that he should be the true inventor.
Sec. II.-JOINT PATENTEES.
A joint patent cannot be sustained upon a sole invention of either of the patentees, for the patent act gives no right to a patent except to the inventor; and requires an oath from the party who claims a patent, that he is the true inventor.? Joint inventors must therefore be joined in the patent.
Sec. III.SOLE PATENTEE.
If the invention is suggested by another, the person to whom the suggestion is made, though he proceed to reduce it to practice, is not the inventor within the meaning of the statute. This proposition might, however, be limited to the case of a suggestion of the specific process or machine. ral theoretical suggestion that a steam vessel might be made to navigate the air or water, or that paper could be made in a continued sheet on a cylinder, would not be such a suggestion of the invention as would preclude the person to whom it should be made, from taking out a patent for a particular process or of specific machinery for effecting the result suggested. But if the specific process is pointed out, the person to whom it is so pointed out, cannot after
? Barrett v. Hall, 1 Mason, 473. Stearns v. Barrett, 1 Mason, 153,