not to fritter away his rights upon formal and subtle objections of a purely technical character.'" The writer in the Westminster Review, already quoted, goes into an argument and cites examples, to prove that the illiberal and captious jurisprudence on this branch of law, is owing to the incompetency of the judges to understand the merits of the cases, and a consequent inclination to put the decision upon legal technical points, with which they were more conversant.9 He does not proceed to the proposal of any remedy, and accordingly the argument and citations stand as merely a charge of incompetence or want of fidelity on the part of the judges; and of these the reader is left to infer the former; the latter being indeed totally destitute of pretence, for no one 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 those 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 juriscon 8 Ames v. Howard, C. C. U. S. Mass. Oct. 1833. Westm. Rev. No. 44. April, 1835. p. 251, 252, Foster's Am. Ed. sults 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 The competency and qualifications of the court and jury, as constituted in England, for the trial of patent causes, is much discussed in the examinations before the committee of the House of Commons in England in 1829, and various suggestions for improvement were made by some of the persons examined, while others objected to the courts as tribunals but would not venture to suggest improvements, and others, again, were well satisfied with the ordinary tribunals. But the views expressed by these persons, as well as the remarks of the writer quoted above, go, at the most, to the appointment of special juries, and the reasons for this are quite as strong in cases arising on questions of commercial law as in those on patents." 10 See Rep. p. 4. 72. 89. 91. 101. 102, 10 Ch. VI.] What Persons are entitled to Patents, &c. 69 CHAPTER VI. What Persons are entitled to Patents, and capable of taking them out. Sec. 1. Mere Introducers of an Art or Machine. 2. Joint Patentees. 3. Sole Patentee. 4. Divers Independent Inventors of the same 5. Assignee by Assignment anterior to the Patent. Sec. 1.-MERE INTRODUCER OF AN ART OR MA CHINE. We 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 pub lishing what others as well as himself have found out at home; or by publishing what he himself has discovered."" 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 incorporated into the laws of France, Spain, the Netherlands, and Austria. The law of the United States limits 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 gave the privilege to the inventor, and required that he should make oath that he verily believed that he was 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 1 1 Ch. 2. p. 59. |