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him of the right to use and to sell those things, would be to lessen or to destroy their value, and thus to deprive him of property rights. If such an act is ever done at the suit of the first inventor, after he gets his patent, it will be done by virtue of that patent. Now, a patent is the creature of a statute. No statute is “due process of law," and no patent can be “due process of law” unless a creature can be greater than its creator: unless a statute can authorize a contract to accomplish, upon the rights of third parties, a result which
, the statute itself is forbidden to accomplish. If this reasoning, and this conclusion, is correct, it will not follow therefrom, that such a re-inventor may construct any specimen of the invention after the first inventor has obtained a patent thereon. To deprive a re-inventor of such a privilege, is not to deprive him of property, for no re-inventor has any property right in an invention which he was the second in the United States to make, any more than he would have if he had learned of that invention from a newspaper or from a book.
$ 159. The rule stated at the head of the last section does not apply to any process patent. The provision of 1870," and Section 4899 of the Revised Statutes, treat only of machines or other patentable articles, and confer exemption from the operation of patents upon nothing but specific things. Now, a process is neither an article nor a thing. It is a series of acts. It is therefore outside the language of the law on this subject. It is also outside the reason of that law. That reason is as follows. Where another than the first inventor of a particular tangible thing, buys from the inventor a specimen of that thing, or makes such a specimen with his consent, or re-invents and makes such a specimen independently of the first inventor, that specimen ought to be exempt from any patent afterward applied for by the first inventor; because, if it is not so exempt, it will
become worthless in the hands of one who honestly expended of his substance to procure it, and who procured it without violating any patent or any law. Processes are not subjects of these considerations. A process cannot be purchased. The right to practise a patented process can indeed be purchased; but the right to practise an unpatented process, while it remains unpatented, cannot be the subject of a sale, because that right belongs to every one without any purchase. So also, if an inventor of a process consents that another person may practise that process, before the inventor applies for a patent, that fact furnishes no reason why that person should be allowed to practise that process, against the will of that inventor, after the date of his patent. To deprive such a person of such a privilege, is not to deprive him of the use of a thing. It is only to deprive him of the privilege of repeating a series of acts. These considerations apply also to cases where a reinventor produces and practises a process, after its production by the first inventor, and before any application is made for a patent thereon, and without any knowledge of the first inventor or his doings. Such a re-inventor has no more natural right to practise that process, after a patent is granted to the first inventor, than any other person has.' He has no such right growing out of the fact that he was a re-inventor, because the patent laws do not reward re-inventors, and because patents to first inventors are exclusive of re-inventors, as well as of other persons. He has no such right growing out of rights of property, because to deprive him of the privilege of repeating the process is not to deprive him of the use of any tangible property, and because he has no intangible property in the process itself.
The language of the Patent Act of 1839' was, however, different from that of the Act of 1870, and of the Revised Statutes, on the point treated in this section. The earlier Act contained a considerable clause which is not in either of the others, and which induced the Supreme Court to
15 Statutes at Large, Ch. 88, Section 7, p. 354.
decide that the earlier statute applied to patents for processes, as well as to patents for things.' The reasoning of Justice BALDWIN, in the case, was never convincing to the present text-writer. It was spoken of by Justice STORY as “certainly general;"• and Judge WHEELER has well said that “It is not probable that McClurg v. Kingsland would be followed beyond cases of its class, upon the same statute.":
' As far as McClurg v. Kingsland construed the Act of 1839, and applied that Act to the very case then at bar, it is entitled to loyal respect and obedience, even from those who cannot follow its reasoning. But McClurg v. Kingsland is no guide to the meaning of the present statute on the subject, because that statute is substantially different from the one construed in that case, and because the reasoning of that case has no convincing force when applied to the language of the now existing statute.
$ 160. Every United States patent is in general coextensive, in point of the territory it covers, with the territory covered by the jurisdiction of the United States. Every such patent, therefore, covers the use of the patented thing in or under the tide-waters of the United States; and that, too, even in cases where the government has granted, to others than the patentee, the exclusive right to do, at a particular place, the particular thing which the patented invention is adapted to accomplish. In the case just cited, the complainant had a patent on a certain submarine telegraph cable; and the defendant had a grant from Congress, giving it the sole right, for fourteen years, to lay, construct, land, maintain, and operate telegraphic cables in and over the waters, reefs, islands, shores, and lands over which the United States have jurisdiction, from the shores of Florida to the island of Cuba. Under these circumstances, Justice BLATCHFORD decided that the defendant acquired, by its
McClurg v. Kingsland, 1 Howard, 202, 1843.
. Pierson 0. Screw Co. 3 Story, 408, 1844.
3 Brickill v. New York, 5 Bann.
grant, no right to use the patented cables of the complainant; and he intimated that the complainant acquired by his patent no right to use his cables between Florida and Cuba. His Honor supported this intimation by saying that no patent confers upon its owner any right to make or use his invention in the house of another; and he supported his decision by saying that the fact just mentioned does not confer upon another than the patentee any right to make or use the invention of the latter in the house of the former.
$ 161. No United States patent-right extends to the mere use of the patented invention on any foreign ship while temporarily in a harbor of the United States for the purposes of commerce; though such a right would be infringed by making or selling the patented article on board any foreign vessel while in either of our ports. United States patent-rights extend to the decks of United States ships, even when those ships are on the high seas, as fully as they extend to the solid earth of the United States."
$ 162. The regular duration of a United States patent for a process, machine, manufacture, or composition of matter, was fourteen years, under the statutes prior to that of 1861; but it was enacted, in Section 16 of the Patent Act of March 2 of that year, that all patents thereafter granted should remain in force for seventeen years from the date of issue.' Section 22 of the Consolidated Patent Act of 1870 provided that every patent should grant to the patentee, his heirs or assigns, for the term of seventeen years, the exclusive right to make, use, and vend the invention covered thereby.' Section 4884 of the Revised Statutes makes the same provision as that made on this point by the Act of 1870. The phrase "every patent " is not to be understood in its literal signification. It means every patent, the duration of which is not otherwise prescribed by statute. In the latter category, design patents fall. Such patents are grantable
1 Brown o. Duchesne, 19 Howard, 196, 1856.
? Gardiner o. Howe, 2 Cliff. 464, 1865.
3 12 Statutes at Large, Ch. 88, Section 16, p. 249.
4 16 Statutes at Large, Ch. 230, Section 22, p. 201.
for fourteen years, or for seven years, or for three years and six months, as the applicant may in his application elect.' In the same category, also, fall patents for inventions for which their owners previously obtained one or more foreign patents. United States patents of this class cannot be granted for more than seventeen years, and they generally have to be limited to some shorter length of time.
$ 163. “Every patent granted for an invention which has previously been patented in a foreign country, shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years."? Such is the present statute on this subject, and the corresponding provision of the Patent Act of 1870 was substantially the same.'
These enactments apply only to cases wherein the foreign patent was taken out by the United States patentee, or at least with his knowledge and consent. No foreign patent obtained by another, without that knowledge and that consent, after the inventor made his invention, and before the United States patent was granted, can operate to limit the duration of the latter..
These enactments apply to a case where a foreign patent was granted before the granting of the corresponding United States patent, even if the foreign patent was made a secret one at the request of the applicant therefor;' but they do not apply to a case where a foreign patent was dated before the granting of the corresponding United States patent, but not sealed nor published till afterward;' though they do apply to a case where the United States patent was granteil after the foreign patent was sealed, upon an application filed before that event."
| Revised Statutes, Section 4931. ? Revised Statutes, Section 4887.
316 Statutes at Large, Ch. 230, Section 25, p. 201.
4 Kendrick v. Emmons, 2 Bann. & Ard. 210, 1875.
5 Gramme Electrical Co. 0. Elec
tric Co. 17 Fed. Rep. 838, 1883.
6 Gold & Stock Telegraph Co. t. Telegram Co. 23 Fed. Rep. 340, 1885; Emerson 0. Lippert, 31 Fed. Rep. 911, 1887; Seibert Oil Co. e. Powell Co. 35 Fed. Rep. 591, 1888.
· Bate Refrigerating Co. o. Gillett,