extent, beneficial to the community, and not injurious or frivolous or insignificant."

"The usefulness of the invention is not to be scanned with a critical eye, to ascertain a given amount of benefit to be derived from it; but it must be useful as contradistinguished from that which is frivolous, or wholly worthless. If not frivolous or entirely useless, the requirements of the law in this particular are complied with."'96

The French law does not pretend to take cognizance of the utility of the invention. Every new species of legal industry, says M. Renouard," is the proper subject of a patent, however trifling may be its utility. To exclude the inference that the patent is any guaranty of the character of the invention, the declaration has been inserted in the patent, that the government, in granting it without any preliminary examination, did not intend to guaranty, in any degree, either the novelty or the merit, nor the success of the invention. This clause was introduced on the

95 Com. Vol. 2, p. 369. Cites Lowell v. Lewis, 1 Mason's R. 182; Evans v. Eaton, 1 Pet. C. C. R. 322; and above case of Langdon v. De Groot.

96 Per Thompson J., Stanley v. Hewitt, Cir. C. of U. S. Eastern Dist. of N. Y. 1835. Journal of the Franklin Institute, March, 1836. Vol. 17, p. 165.

97 P. 177, c. 5, s. XV. 1.

occasion of an application for a patent for a phenomenon in acoustics, by means of which answers were given to questions put in a low voice, without the inquirer's seeing the person who gave the answers. This was called the invisible woman. When Lucien Bonaparte, being then minister of the interior, presented that patent with divers others for the signature of Napoleon, then first consul, the latter threw the paper under the table, taking offence that it should be proposed to him to sign such frivolous documents. The minister of the interior attempted to demonstrate to him that the law ordered the issuing of patents without previous examination, however useless or absurd even, might be their objects. Thereupon the first consul proposed the three following questions to the board of arts and of commerce: 1. Whether some form of despatching these documents might not be devised that would dispense with the signature of the first consul. 2. Whether patents ought to be granted for frivolous subjects. 3. Whether a mode of granting patents might not be devised that would prevent disputes concerning priority, and the abuses which patentees might make of their privilege by representing the patent as a certificate and favorable attestation of the government, and thus leading persons into error who did not know that patents were

granted without any consideration of their merits. In consequence of these queries, the above clause was introduced into the French patents.

Sec. XV.-VENDIBILITY.

In connexion with the requisite of usefulness, we may mention another which has been considered to be indispensable, both under our act of Congress, and under the statute of monopolies, namely, that either the means or instrument, or the product of the art, method, or process patented, must be vendible. This word, in its ordinary sense, does not precisely express the quality intended, its usual meaning being, that the thing to which it is applied is in demand, which is not the case with all inventions. It is not provided by law that the patentee, unless he is an alien, shall either sell or offer for sale, or be able to find a purchaser for the thing of which he has the monopoly; nor has either of these conditions been insisted upon by any construction put upon the law. To make any such condition, would be the same as to make it imperative upon a party to whom a reward is offered to accept it. The meaning of monopoly,

98

98 Act of Congress of July 4, 1836, c. 357, s. 15.

(and a patent, as we have seen, is one,) is the exclusive privilege of selling the subject of which the monopoly is granted. In some monopolies, as, for instance, that of the trade to a particular foreign port, or in a particular article, a condition may be made that the monopolist shall avail himself of the privilege or lose it. So it might be provided in the patent law, that the patentee should either himself make the thing to which the patent relates, or authorize others to do so, and that the subject patented, or its products, should be offered for sale; still if it leaves him the privilege of fixing his price, this would put it in his power to prevent the

sale, and so render the requisition that it should be offered for sale, ineffectual. If the law should go still further, and provide for prescribing the terms on which the article should be offered for sale, by referring it to some board to regulate the market value, it would subject the monopolist to much embarrassment, and, at least, greatly impair the value of his privilege, besides opening a door to vexatious interference and abuse.

There might be still another provision on this subject, requiring that the matter to which the patent related, or its products, should be sold publicly within a certain time, under penalty of forfeiture of the privilege. But if the quantity or number of speci

mens were not fixed, the provision might be easily evaded, and, in order to fix the quantity or number of specimens, it would be necessary to constitute a board, with an arbitrary discretion in the case; to which there would be the same objections as to a board for regulating the price.

Then, again, the reason why the patentee makes no sale, may be that the invention is considered of no value whatever by any person, excepting the inventor himself, and so other persons do not regard his exclusive privilege to be any interference with their pursuits or interests. This is, in fact, the case with many patents; and, in all these instances, there is no motive for any requisition or regulation on the subject.

And, finally, in still another case, a sale may not be practicable, though the invention may be useful and valuable, merely because it is not well understood by other persons than the inventor, or because no one, who has the necessary means and facilities for putting it into actual operation, has made it a subject of his

attention.

These are reasons why the law does not, and should not, either expressly or by construction, require that the invention, or its products, of which the privilege of exclusive sale is granted, shall be sold or offered for