elementary truth or power; so that in the view of such men, all machines, which perform their appropriate functions by motion, in whatever way produced, are alike in principle, since motion is the element employed. No one, however, in the least acquainted with law, would for a moment contend, that a principle in this sense, is the subject of a patent; and if it were otherwise, it would put an end to all patents for all machines which employed motion, for this has been known as a principle, or elementary power, from the beginning of time. The true legal meaning of the principle of a machine with reference to the patent act, is the peculiar structure or constituent parts of such machine. And in this view the question may be very properly asked, in cases of doubt or complexity, of skilful persons, whether the principles of two machines be the same or different? Now the princiciples of two machines may be the same, although the form or proportions may be different. They may substantially employ the same power in the same way, though the external mechanism be apparently different. On the other hand, the principles of two machines may be very different, although their external structure may have great similarity in many respects. It would be exceedingly difficult to contend, that a machine, which raised water by a lever,

was the same in principle with a machine, which raised it by a screw, a pulley, or a wedge, whatever in other respects might be the similarity of the ap

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paratus. "By the principles of a machine," says

the same judge, in another case, “is meant the modus operandi, the peculiar device or manner of producing any given effect. If the same effects are produced by two machines by the same mode of operation, the principles of each are the same. If the same effects are produced, but by combinations of machinery operating substantially in a different manner, the principles are different."37

36 Barrett v. Hall. 1. Mason, 470.

37 Whittemore v. Cutter, 1 Gallison, 478. The writer in the Westminster Review, No. 44, April, 1835, says, on this subject, "There is another word, which, in patent causes, is used as a rival word to manufacture, but still more ambiguous in its meaning, and which, recommended by such ambiguity, is in very frequent requisition. The word is principle. To make this lawfantom, the witchcraft used by the lawyers consists in mingling three different meanings together, used by the aid of certain professional solemnities, producing a mystical word, capable of harlequinizing an idea into many various forms." The writer should have said, the word is harlequinized, not any idea; and his own expression seems to be quite as mystical as any thing to be found in the arguments of the lawyers, or the opinions of the judges, whom he probably intends to include in the class of lawyers. The mystery is nothing more or less than the common fallacy in reasoning, of accepting and applying an ambiguous proposition that is true in one sense, and false in another sense, in the erroneous sense. This may be done in respect to manufacture, method, process, or principle, since each of them is, in

Mr. Carpmael remarks upon this subject, "It must be evident to every one who has taken the trouble to examine into the question, that the discovery of a principle existing in nature, is not such a discovery as can be protected, or for the use of which an exclusive privilege can be given. I may instance Newton's discovery of the cause and operation of gravitation; it would have been an absurdity to suppose that a patent for applications of the principle of this natural action could have been granted to him."s

Sec. VI.-APPLICATION OF A PRINCIPLE.

Another word often used in connexion with principle, and with other words, in defining the subjects of patent rights, is application. The two questions in this case are, first, whether, though a principle in any sense may not be patentable, the application of that principle may be so? and second, whether a manufacture, method, or principle in certain senses, being patentable in their character, any new application of

some senses, patentable, in others, not so; and, therefore, whether we say that each of them is or is not patentable, the proposition will be true or false, according to the sense in which the words are used and applied.

38 Law of Patents for Inventions, Ed. 1836. London, p. 14,

such manufacture, method, process or princple, is the substantive subject of a valid patent? In answering the general question, whether a new application of either of these is a proper subject of a patent, we have not only to distinguish whether the thing to be applied may, or cannot be, itself the subject of a patent, but we have the additional uncertainty of meaning and ambiguity in the use of the word application. If by application be meant the mode of operating, or the mechanical combinations, means, or instruments, by which a principle or theory is carried into operation, in this sense, the new application of a theory or principle, may be the subject of a patent. The whole circle of inventions for which patents have been granted, consists of new applications (in this sense of the term) of the mechanical powers and chemical properties of matter. But if by new application be meant only the new use of a thing, requiring no new apparatus or instrument, and involving no invention whatever, such for instance as using a nail machine for making copper nails, which had been patented, or had before been used only for making iron nails, in this sense a new application cannot be patented.

The proposition may then be laid down that a new application of a theory or principle, or of an art, process, or machine, in itself patentable in its charac

ter, may be the subject of a patent where such new application is an invention-where it is effected by new means, instruments, or machinery, or new improvements of those already in use.

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Thus Mr. Justice Johnson says, "the legal title to a patent consists not in a principle merely, but in an application of a principle, whether previously in existence or not, to some new and useful purpose. He intends the case of an application effected by new apparatus, machinery, or instruments, or processes; such an application as requires invention. In this sense, Mr. Justice Buller says, the new application of the effect of water in changing colors, may be the subject of a new patent, when applied in a new manner, and by new processes, to a species of manufacture to which it had not been before applied. He illustrates this in the case of the invention of water-tabbies, which "owed its rise to the accident of a man's spitting on a floor cloth, which changed its color; from which he reasoned on the effect of intermixing water with oils or colors, and found out how to make water-tabbies, and had his patent for water-tabbies only. But if he could have had a patent for the principle of intermixing water with oil, or colors, no man could have

39 Whitney v. Carter, Fessenden's Pat. 130.