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as a new method of effecting such or such an object, or a new process. Mr. Godson10 thinks a method or process is not patentable, but the reason of his being of this opinion, is, that he puts a peculiar meaning upon the terms. He says, "When an invention is not of a thing made, it can only be known by being taught by the inventor himself, or by being learnt from experiments made on the faith of the description given of it in the specification. With that assistance, however well the method or process may be set forth, some time and experience must necessarily be required, before a person can make use of the invention so beneficially as the discoverer. But the public are not bound to make experiments, and, therefore, it seems reasonable to infer that a mere process or method cannot be the subject of a patent."
"But supposing it possible that a new method of operating with the hand, or a new process to be carried on by known implements or elements, might be so described as to be, by bare inspection, made as beneficial to the public, as to the discoverer; that neither time nor labor, skill nor experience, are required to put it in practice; still it is not a substance or thing made by the hands of man; it is not vendible; which is an inherent, primary quality of a new manufacture."
"The advantages of a method or process, in truth, arise from the skill with which it is performed. Suppose, for instance, that one person can with a certain machine, produce a particular article of dress, of a certain quality; and another, with the same machine, by using it in a different manner, can make the same article in half the time, and reduce it to half the price; however new and ingenious this method may be, still it is nothing substantial or corporeal. But suppose that in thus using the machine, some apparently inconsiderable alteration is made, that would be sufficient to support a patent; and it is indeed difficult to imagine, that any beneficial effect could be produced without some material alteration in the instrument itself; and then why not oblige the inventor to take out a patent for the improvement? It is expressly enacted in the statute of 21 James I. that the new manufacture must not be "hurtful to
trade, nor generally inconvenient." To monopolize such methods as above enumerated, appears to be particularly hurtful to trade. In every branch of it there are workmen who use the machines employed in their respective trades more skilfully than their fellows. This superior skill may be in consequence of a particular method of applying their implements. But it would be carrying the doctrine to a great length, to decide that the workmen are entitled to patents for their respective methods of working."
"And further, every master is bound to teach his
apprentice the best way, or means within his knowledge of following his trade. If, therefore, a master obtained a patent for fourteen years, for a particular method of operating with known instruments, to produce a known article in less time than usual, or of making it better and more useful, such apprentice would not be allowed to exercise his hands in the most skilful manner he was able, until several years after he had commenced business for himself. Such a patent would, indeed, be "generally inconvenient." There would be a monopoly in every handicraft trade; one person only in each calling would be allowed to work in the most skilful manner."
"For these reasons-that Dr. Hartley's case is the only one in support of the doctrine, and he did not first make iron, nor first discover the effect of iron on fire, so that he was not the inventor of any substance or instrument—that a method does not possess the qualities which have been shown to be inherent in the subjects of patents, and can be known only by making experiments, and that it is inconvenient to the public, particularly to masters and apprentices; that methods should be monopolized; it might perhaps be fairly inferred, that a method or process is not a new manufacture, within the meaning of the statute of monopolies."
The inference from all this reasoning is, that some methods or processes are not patentable; but it will appear in the sequel very satisfactorily, that others
are so; and it would be very singular, if they were not so, that the very word method should be so often used in the title of inventions; and Mr. Godson himself recommends the use of this term ;" and yet, as we shall see, under the English statute, the title must truly describe the invention, or the patent is void. We can say, then, that a method in general, merely as such, is not patentable, or, in other words, that methods are not, universally, and without exception, subjects of patents. And the cases will illustrate what methods are, and what are not patentable.
"This expression, new manufacture," says a writer, 12 "may have either of two significations. A stocking was a new manufacture the first time one was knit; but a stocking was again a new manufacture the first time one was made by a loom. In the first case, the thing made was new; in the other, the art of making that thing in a particular way. Accordingly in these two senses, the reader will find the word manufacture set down in Johnson's dictionary, and Webster's. This well known, double signification of the word, has, however, often most unaccountably been overlooked. Some judges, in ill accordance with other terms of the act they interpret,1s have insisted that a new manufacture behoves to be a new salable
12 Westminster Review, No. 44, April, 1835, p. 247, Foster's Am. Ed. 13 21 Jac. 1. c. 3.
thing made; and they will not admit a new method to be a new manufacture, except when that method, as in the stocking-loom, happens to be a new piece of mechanism, itself an article of sale; but when the new method constitutes only a new process, then, however valuable that process may be in manufactures, and however difficult and meritorious to discover, they will not regard it as a manufacture, and consequently not as a proper subject for a patent." In illustration of this remark, the writer refers to the case of Watt's patent, which was endangered by the doubt on the part of the judges, whether he had made what could be considered in law, an improvement "in any manner of manufacture.'
This doubt arose from Mr. Watt's having used the word method in the title of his invention, his patent being for a method of lessening the consumption of fuel and steam in the use of steam engines, a doubt being entertained by some of the judges whether a method was patentable. The use of this word by Mr. Watt, in his title, endangered the validity of his patent, whereas, had he called it an improvement, the doubt could not have arisen, and yet the sense would have been the same. But it will appear very satisfactorily that a method may be the subject of a patent, the doubt in this respect being, as already suggested, not whether a method may be patented, but in what sense this term is applicable to patentable subjects.
In one of the cases on Watt's patent, Mr. Justice