Lapas attēli


Subjects of Patents.

Sec. 1. Kinds of Subjects Patentable.

2. Manufacture.

3. Method.

4. Process.

5. Principle.

6. Application of a Principle.

7. Effect, Result, Product.

8. Art, Scientific Axiom, Theory, Abstract Proposition, Reduction to Practice.

9. Materials, Substances, Compositions of Matter. 10. Combination.

11. Improvement.

12. Change of Form, Proportions or Materials. Insufficiency of the Invention. Ornaments.

13. Legality.

14. Usefulness.

15. Vendibility.

16. Novelty, Priority.

17. Previous Publication.

18. Imported Inventions.

19. Delay for Experiments.

Dedication to the



We are now brought to a very difficult branch of the law of patents, the inquiry being as to what kinds of new inventions are patentable. Nothing is patent

able but an invention; but not every invention is so. After the adoption of the French patent law, patents were taken out for systems of finance; but these were declared not to be within the class of inventions comprehended under the law. To decide this question, our first resort is to the words of the law; or in the British statute, the word; for the kinds of subjects intended by that law, are expressed by the single word manufacture; and, as we shall see, the meaning and extent of this word, in reference to the subject in hand, is restricted, in the first place, by express provisions in the law, and then again by construction, and yet a very extensive signification is given to it. The act of Congress of 1793 gives a more full and definite description of patentable subjects; the words are, "any new and useful art, machine, manufacture, or composition of matter." This law is intended to express more fully and precisely, the practical construction which had already been given to the fifth and sixth sections of the British act of monopolies, and is thus at the same time, the law of the United States, and an exposition of that of England. The language of the French law is, perhaps, broader than either that of the English or American law, the expression in that law being, "every invention or discovery in any kind of


industry;" which, taken in its full extent, comprehends things not embraced by the language of either the English or American law, taken in its widest construction, though the words of these laws, taken in their broadest signification, include subjects which cannot be brought within the French law; or, at least, this is the case with the American law, for the words art and machine, may be applied to things not included under discoveries or inventions in industry. The truth is, that the practical construction, given to the three laws, in regard to the kinds of invention that are patentable, is substantially the same.

If we take all these expressions in connexion, we shall obtain a pretty accurate, general notion of the kinds of subjects intended by each of these laws, for the subject of the patent must, in the language of the French law, be an invention or discovery in industry; but under the construction given to that law, not every invention or discovery in industry is patentable; then the word manufacture points out the species of discovery or invention intended to be protected; but lest this word, though by a liberal construction it is applicable to all the proper and all the intended objects of encouragement by the law, should receive too narrow an interpretation, the act of Congress adds what in fact amounts to a liberal construction of the word manufacture, by expressly extending the act to any art, machine, or composition of matter. But it will be evident that we must accept the ex

pressions art, and composition of matter, in this case, with large restrictions, since the word art is applied to mere skill, and yet it will appear very obviously that any discovery in the mode of managing the hands or limbs, or the instrument used, such as is comprehended under the expressions skill, or address, as in horsemanship, in steering a ship, or playing on a musical instrument, cannot be made the subject of monopoly, and if it could be, that any such monopoly would be most pernicious. We must then resort to manufacture, and in the English law, and our own, to limit the construction to be put upon the other expressions used in our law.

In examining more particularly the kinds of subjects covered by the law of patents, it is difficult to distinguish and arrange them into different classes, under the various expressions which have been used to designate them, since these expressions are all of very various, and not very definite signification, and, besides, the subject has been perplexed, by a loose use of these expressions in the opinions of courts in patent cases, and also by the use of the same expression in different senses. The discussions on this subject in the cases, afford a striking illustration of the remark already cited, that we are occupied with a branch of jurisprudence which may aptly be denominated the metaphysics of the law; since, in the subtile and nice distinctions often requisite, and still oftener attempted than requisite,

language fails to supply adequate and precise phraseology, so that we are without the usual help to satisfactory speculation, that is, clear language, intelligible to every one, which proves, in this, as in other cases, a double hindrance, first to clear and discriminating thinking, and second, to the ready and perspicuous communication of thought. As the different expressions used in describing patentable subjects are very analogous to each other in signification, and are mutually blended and implicated together in their meaning, and in the application made of them in the cases, the most convenient mode of treating of them, at least the most concise, will be to enumerate them all, and examine them successively, without confining ourselves rigidly to that order, to do which, much repetition would be requisite, without rendering the subject any clearer.

The expressions by which patentable subjects have been defined and described, then, are, first, those used in the laws already enumerated, viz. invention, discovery, manufacture, art, machine, composition of matter, and others used in the cases, viz. a method, principle, application of a principle, process, effect, result, product, device, combination.


The term most discussed in the English reports, as descriptive of the kinds of subjects for which patents may be granted, is the description given in the

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