Thus it will be seen that not only is the education of the people in the practice of the new and useful inventions the fundamental object of the establishment of the patent system and the reason for the grant of letters patent, but the fact that the people have already been educated to practice alleged inventions is the fundamental reason for the refusal of grants therefor. FUNDAMENTAL CONTRACTUAL PRINCIPLE. This early decision also brings out to distinct view the first conception of the contractual character of the grant, for therein it is stated that it would be lawful to issue such a grant because it would be "in recompense for the costs and travail" of the inventor. And two hundred and seventeen years later, in the familiar case of Grant vs. Raymond, Chief Justice Marshall said: "To secure to inventors the exclusive rights to their discoveries is the reward stipulated for advantages derived by the public for the exertions of individuals and is intended as a stimulus to those exertions" and "The laws which are passed to give effect to this purpose ought to be considered in the light in which they have been made and to execute the contract fairly on the part of the United States where the benefit has been received." SOME OTHER FUNDAMENTAL DECISIONS. In the interval of time between the enactment of the Statute of Monopolies in 1624 and the adoption of the Constitution of the United States, there were several recorded decisions in patent cases in England which contain some of the fundamentals upon which our own patent system was established and among these decisions may be briefly mentioned the following: (1) Edgeberry vs. Stevens (K. B., 1691) containing reference in a rudimentary way to the later provision of law that prior knowledge abroad of an invention will not defeat the grant of a domestic patent for the same invention. (2) Dolland Case (C. Pleas, 1766) in which prior secret use of an invention in England, by which the public could not have been taught to practice the invention, was held not to invalidate a patent to another for the same invention, because the later inventor and patentee and not the earlier secret inventor was the means by which the invention was made known to the public. (3) Roebuck vs. Stirling (House of Lords, 1774) in which prior public use of the invention in England was held to invalidate a later patent to another for the same invention. (4) Arkwright vs. Nightingale (Com. Pleas, 1775) in which it was held that "the specification is addressed to persons in the profession having skill in the subject, not to men of ignorance, and if it is understood by those whose business leads them to be conversant in such subjects, it is a sufficient specification under the law." (5) Liardet vs. Johnson (K. B., 1778) in which a patent was declared void because the specification did not constitute a complete description of the invention, the court holding that- "the meaning of the specification is that others may be taught to do the thing for which the patent is granted and if the specification be false, the patent is void, for the meaning of the specification is that after the term, the people shall have the benefit of the discovery." These decisions, it is thought, indicate the first evidences of a system of fundamental laws involving patents at the dawn of the modern industrial era, in that, even at that early date across the seas, there were distinct indications of the industrial value to the people that resulted from granting to inventors the exclusive ownership of their inventions for limited times as a consideration for the publication thereof in the interest of the people and to educate them in the establishment and practice of new arts and industries. FUNDAMENTAL CONSTITUTIONAL PRINCIPLE. It was probably with these facts in mind and having in mind also that the newly formed Union of States could not progress industrially without new means for solving the new industrial problems that lay before them, that Mr. James Madison on August 18, 1787, presented for the consideration of the committee of eleven of the constitutional convention, a memorandum of the several powers which he thought should be conferred upon Congress. This memorandum contained the following two separate paragraphs: (1) "Congress shall have power to secure to literary authors their copyrights for a limited time" and (2) "Congress shall have power to encourage by premiums and provisions the advancement of useful knowledge and discoveries." It will thus be seen that the fundamental conception in this country that is involved in the establishment of a system of industrial development is shown to have involved primarily the advancement and dissemination of knowledge of new discoveries and inventions and this conception of the educational character of such a system is clearly consistent with that earlier conception at first referred to in the Clothworkers case one hundred and seventy-two years prior thereto. In the final form in which this matter was presented to the constitutional convention by the committee of eleven on September 5, 1787, the two separate paragraphs above referred to were combined into one and in the words so familiar to you all, it was adopted unanimously and without debate. And sitting, as those men were in convention assembled, to invent and establish a new form of government consisting of the combination of executive, legislative and judicial elements which have cooperated to produce a new result in governmental machinery such as the world had not known before, it was but natural that they should have laid this foundation for the great industrial progress of this nation. In plain and unmistakable terms, the constitutional provision tells the purpose and object of the establishment of the patent system in the words, "To promote the progress of science and the useful arts," and in so far as the writer has been able to discover, this is the only paragraph of the constitution which in terms provides for the promotion of industrial progress in the interest of the people. As the phrase quoted clearly indicates the purpose and object of the establishment of the patent system, so also the only means provided by the constitution to be employed to carry that purpose and object into effect, is found in the words "by securing for limited times to inventors the exclusive rights to their discoveries. It was to the ingenuity of the American inventors, then, that the founders of the Government looked to establish industrial enterprise and the fact that this nation today stands second to none in general industrial importance, is proof of the accuracy of the prophetic vision of those who placed the foundations of American material progress upon the shoulders of men who have been and are endowed with the power of original thought and the courage of original action. GENERAL OBSERVATIONS AS ΤΟ FUNDA- With these general considerations in view with regard to the historical development of the educational, contractual and constitutional characters of the grant, it may be assumed that the first and most fundamental test to be applied to the examination of alleged inventions in patent applications is this: Would the subjectmatter if patented or published educate the people to practice a new or improved industrial art or construct a new or improved industrial instrumentality. A favorable opinion of this question should be very helpful to the examiner in deciding doubtful legal and technical problems in favor of the applicant. Viewed also from the standpoint of their educational character, patents should be granted in the interest of the people in all cases except where evidences of prior public knowledge of the alleged invention make it clear that those of ordinary skill in the arts are, constructively at least, already in possession of that knowledge and, in view of the fact that it is in the interest of the public that they should without delay obtain this instruction, it is a matter of much consideration that patents be expeditiously granted, due regard being had, however, to thoroughness of the examination which eventuates in the final refusal or grant of the patent. Viewed from the standpoint of the contractual character of the grant, patents should be granted in all cases where the consideration offered by the applicant in the character of the disclosure of the inventive subject-matter would be "sufficiently useful and important" (R. S. 4893) to the public and would constitute an adequate consideration for the rights conferred by the public upon the inventor in the character of the exclusive ownership of the right thereto. The contract should be fair in its terms equally to the inventor and to the public, and for this reason, the examiner should learn to study each case before him both from the standpoint of the inventor and from the standpoint of the public. In this way only will the examiner acquire such an unprejudiced, judicial attitude as is essential to the rendition of fair and impartial decisions in matters relating to patentability. It may be helpful to the examiner to view the application as having an inter-partes character and as if it were an executory contract and to consider that he sits as a judge to determine from all the facts and the law involved, what the terms of that contract shall be when executed; remembering full well that if the terms of the contract are to be fair, the scope and character of the claims allowed should be in direct correspondence with the extent to which the people will have been instructed by the disclosure. In the earlier ages of the patent system, some examiners held that they represented the people only and that it was their duty in the interest of the people to prevent the allowance of patents to inventors. A deeper study of fundamental principles, however, now reveals a fairer and better conception of the examiner's duty, a conception that is helpful to the examiner in that it cultivates the habit of evenly balanced judgment and |