the exercise of which, in some form, all progress in the industrial arts would be impossible. It differs from an odious monopoly in this: that in the odious monopoly the public are deprived of some existing method of enjoying these rights, while the patent privilege prevents their exercise only in the new direction marked out by the discovery of the inventor. But in both cases the rights restricted are the same, and the effect on their enjoyment after the monopoly is granted is identical. That a patent privilege is a true monopoly, derogatory to common right, is, therefore, the correct theory concerning it considered in itself. . . Certain modern writers upon Patent Law have asserted that the exclusive privilege conferred on an inventor is not a monopoly. Certain judges of the courts of the United States, in their decisions upon patent cases, have expressed the same opinion. . . . The creation of a monopoly embracing these extraordinary privileges, with their corresponding limitations of the common right, could not be justified unless the ultimate results of its bestowal were, upon the whole, highly advantageous to the public. That this is true, experience has fully demonstrated. The granting of a patent privilege at once accomplishes three important objects: it rewards the inventor for his skill and labor in conceiving and perfecting his invention; stimulates him, as well as others, to still further efforts in the same or different fields; it secures to the public an immediate knowledge of the character and scope of the invention and an unrestricted right to use it after the patent has expired. Each of these objects, with its consequences, is a public good, and tends directly to the advancement of the industrial arts. Any system of law which attains these results, without the undue restriction of natural rights, is evidently consonant with reason, justice, and sound public policy. . . . The patent privilege, if wisely guarded, effects this purpose. It removes from the inventor all inducement to conceal his discovery, by affording him the same protection that could be obtained by the most rigid secrecy. It encourages him to make known his results, as the method of securing for himself the largest recompense. It compels him to acquaint the public, thoroughly and at the outset, with all the details of his invention and with the various modes of benefiting by its use. It appropriates to the whole people, after a short period of exclusive ownership by the inventor, the entire invention as a portion of that common property in which all men may exercise an equal right. . Regarded as a method of attaining these three objects, the concession of the patent privilege by the State is an act having a three-fold character. As a reward bestowed on the inventor for his past inventions, it is an act of justice. As an inducement to future efforts, it is an act of sound public policy. As a grant of temporary protection in the exclusive use of a particular invention, on condition of its immediate publication and eventual surrender to the people, it is an act of compromise between the inventor and the public, wherein each concedes something to the other in return for that which is conceded to itself. . . . The habit among American writers of classing authors with inventors has probably arisen from the fact that the Constitution of the United States mentions them in the same clause, as alike entitled to protection. But their exclusive privileges rest, historically as well as theoretically, upon different foundations. The common law, as we have seen, never recognized any exclusive right in the inventor to his invention, after he had once publicly disclosed it. His privilege was based on a royal grant, which was justified only on the ground of the benefit accruing to the public from such disclosure. The property of an author in his writings, on the other hand, was acknowledged as existing at common law even after his voluntary publication of them (Miller v. Taylor (1769), 4 Burr. 2303); and though this natural right has been merged into that defined and limited by the statute 8 Anne, chap. 19, § 1, 1710 (Becket v. Donaldsons, Burr. 2408), which is the foundation of our modern copyright law, its origin and nature are entirely different from that which left the inventor dependent on the bounty of the sovereign for whatever protection his invention might receive. The character of the exclusive privileges secured to authors and inventors by existing laws is also widely different. His copyright vests in the author no exclusive right to his ideas, apart from the language in which they are expressed, and any other writer may create them or adopt them, and clothe them in his own words, at his pleasure. But the exclusive privilege of the inventor extends to the idea which is embodied in his invention as well as to the form in which that idea is presented to the eye, and no other person is permitted to conceive and use or copy that idea in any mechanism or production of his own, But notwithstanding these historical and legal diversities, the distinction between authors and inventors is not as great or as well-defined as Mr. Hindmarch has asserted. It is not true that every author is a creator as distinguished from a discoverer, nor that every inventor is a discoverer as distinguished from a creator. In fact, there are two classes of authors: one which creates ideas as well as represents them; the other which collects ideas or facts already in existence and whose method of presenting them alone is new. To the first class belong the real authors, properly so called, the pioneers in poetry, romance, and philosophy, and those who in succession have substantially added to, or developed the primeval thought. To the latter class belong the compilers, abridgers, and all others who bring nothing of their own into their works except their mode of selection, expression, and arrangement. In the same way there are also two classes of inventors: one which grasps at laws or facts in nature hitherto uncomprehended or unknown, and by applying them to practical uses, opens new fields of activity to the industrial arts; the other which, on these fundamental inventions, builds its humble superstructures, by the combination, re-arrangement, or new application of the facts or elements or principles which the great inventors have made known. To rank these two together as equal in accomplishment and merit is unwarrantable. The great inventor is no less a creator than the great author; and the idea by which he links the physical law or fact to its accomplished object in the arts, that idea which is embodied in his actual invention, is as truly his creation as the nebular hypothesis was the creation of Laplace, or "Samson Agonistes" that of Milton. These are the inventors who deserve the name, the honors, and the rewards of public benefactors. They confer upon mankind, not only during their own generation, but for all time, benefits which, without them, might have never been enjoyed. But the second class of authors and inventors are entitled to no such encomiums and to no such rewards. They achieve nothing which other men of ordinary ability and skill could not perform, and give nothing to the world that some one else would not be sure to give, as soon as the necessity for it was realized and the attention of the artisan or chemist turned in that direction. With these differences in view it is evident that authors and inventors can neither be classed together nor entirely separated from each other; and it is also evident that neither the existing copyright nor patent laws give to these different classes of authors and inventors a protection commensurate with their respective merits. The copyright law apparently ignores the existence of the first class of authors, as a distinct and more meritorious class, and gives to them no her protection than it accords to the mere echoer of their original ideas. The patent law, on the other hand, secures to the first class of inventors an adequate recompense, in kind if not in duration, but bestows the same reward upon inventors of the second class, no matter how small may be the intellectual value of their achievements. The practical difficulties attending any attempt to measure recompense by merits, in either case, may be insurmountable. But there is no occasion for rendering the questions involved in the conflicting claims of inventors and the public any more obscure by putting all classes of inventors on the same level with the first class of authors, as has sometimes been done, or by denying to the first class of inventors the same degree of intellectual merit and accomplishment which is justly attributed to the highest class of writers. Patent law ought to rest on its own theories and antecedents, and deal with its own problems according to its own principles without being led astray, either in its enactments or interpretations, by false analogies or by attempts to follow systems which, in nature as well as origin, are unlike its own. 220. REVISED STATUTES OF THE UNITED STATES, 1873-74. Title LX, Patents, Trademarks, and Copyrights. Chapter I, Patents. Sec. 4886. Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned; may, upon payment of the fees required by law. and other due proceeding had, obtain a patent therefor. . . . Sec. 4888. Before any inventor or discoverer shall receive a patent for his invention or discovery, he shall make application therefor, in writing, to the Commissioner of Patents, and shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. The specification and claim shall be signed by the inventor and attested by two witnesses. Sec. 4900. It shall be the duty of all patentees, and their assigns and legal representatives, and of all persons making or vending any patented article for or under them, to give sufficient notice to the public that the same is patented; either by fixing thereon the word "patented," together with the day and year the patent was granted; or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is inclosed, a label containing the like notice; and in any suit for infringement, by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued, after such notice, to make, use, or vend the article so patented.1 1 [Consult the following Report: Commissioners to revise the Statutes relating to Patents, etc. Report (U. S. Sen. (1) What Things are Patentable 221. EARLE v. SAWYER UNITED STATES CIRCUIT COURT, DISTRICT OF MASSACHUSETTS. 4 Mason, 1, Fed. Cas. No. 4247 1825 CASE [by Willard Earle against Elisha Sawyer] for the infringement of a patent [granted to plaintiff December 28, 1882]. After a verdict found for the plaintiff, a motion for a new trial was made by F. Dexter for the defendant, which was opposed by Bliss and Webster for the plaintiff. The facts and arguments are fully discussed in the opinion of the Court. STORY, Circuit Justice. The plaintiff, on the 28th of December, 1822, procured letters patent for "a new and useful improvement in the machinery for manufacturing shingles, called the 'shingle mill,'" and filed a specification in the patent office, a copy of which, with the explanatory drawings and figures referred to therein, is annexed to the letters patent. In this specification, he describes his invention as follows: "Said improvement consists in such new arrangement and change of parts of my former machine for the like purpose, for which letters patent were granted to me by the President of the United States, bearing date the third day of November, A. D. 1813, as to admit the use and application in said machine of the circular saw, instead of the perpendicular saw heretofore used, and the substitution of such other parts as are rendered necessary by these alterations, in order to effect the required timing and proper movements of the respective parts thus altered, in connexion with other parts of said machine." He then proceeds to describe these alterations with great minuteness, and annexes drawings of the whole machine with the new combination of parts, and distinguishes in those drawings, by appropriate coloring and descriptions, what is new from what belonged to the old machine. The former machine, here alluded to and patented by the plaintiff, is a machine for manufacturing shingles, called the "improved shingle mill,” in which a perpendicular saw, with the appropriate machinery to move it, was exclusively used. The present patent claims, as an invention. of the plaintiff, the substitution of a circular saw, with the appropriate machinery in the old machine, for the like purpose of sawing shingles. With the exception of this substitution, all the other parts of the old machine, such as the carriage to move the block to be sawed, and the alternate motion on a diagonal line of each end of it, so as to present first a thick and then a thin end to the saw, were unaltered. At the trial it was proved, that the defendant had made and used a nachine with a circular saw in substance like the plaintiff's, though with some slight variations of form, so as to cover up the evasion of the patent. The defendant had previously applied to the plaintiff to buy one of his improved shingle mills for use in the town where he resided, which the plaintiff declined upon the ground (as was suggested) that he had already entered into some contract with other persons for the exclusive use there. The defendant, upon that refusal, intimated that the plaintiff would find that other persons could make shingle mills as well as he; and soon afterwards the defendant had his constructed and put in operation. There was no evidence in the case to show, that any person had ever, before the plaintiff's asserted invention, applied a circular saw in any manner to the plaintiff's old machine. But the whole evidence established, that the first application was suggested by him, and first put in operation by him, before he obtained his patent. . . There was considerable conflict of testimony in the cause (which was left to the jury), as to the question whether the application of the circular saw to the old machine was an invention or not, scientific witnesses differing in opinion on the subject. It was proved that circular saws were in use before, for the purpose of veneering and sawing picture frames, but they were small; and it was testified, that the machinery, by which a circular saw should be substituted for a perpendicular saw, in the plaintiff's old machine, was so obvious to mechanics, that one of ordinary skill, upon the suggestion being made to him, could scarcely fail to apply it in the mode which the plaintiff had applied his. This testimony was encountered by suggestions and proofs of the difficulties, which the plaintiff himself (who is an ingenious mechanic) had encountered in making his own substitution. But this also was left for the consideration of the jury. It was proved that the plaintiff's old machine sold for 60 or 70 dollars, and his machine with the improvement sold for 150 or 200 dollars. The jury found a verdict for the plaintiff for 300 dollars; and the defendant has applied to the Court for a new trial, for reasons which he has filed in the cause, upon which I shall have occasion to comment, only stating at present, that the opinions imputed to the Court are not admitted to be accurately laid down, although the inaccuracy is doubtless unintentional on the part of the counsel for the defendant. The original reasons assigned for the new trial, state the following as misdirections of the Court: 1. That if any man makes or constructs a machine, which is new and useful, he is entitled to a patent. 2. That if he makes an improvement in any machine, which improvement is new and useful, he is entitled to a patent. 3. That if the plaintiff were the first to take out the perpendicular saw from his original shingle mill, and put in a circular saw (meaning, I presume, with the proper machinery), that if it be useful (meaning, I presume, new and useful), it is sufficient to entitle him to a patent. 4. That if the plaintiff were the first to apply or combine a circular saw with his original shingle mill for the purpose |