Twλew, barter, sale, as "an exclusive privilege to carry on a traffic." It can not be denied that, in this sense, a patent right is a monopoly since it gives to the patentee an exclusive right to make, use and vend the invention, and it is in this sense that courts speak of it as being a monopoly. But in the usage of the law, as well as of common parlance, the word has acquired a certain odium because of the type of privileges with which it was customarily connected. Coke says23 "a monopoly is an institution or allowance by the king by his grant, commission, or otherwise, to any person. . . for the sole buying, selling, making, working, or using of anything whereby any person or persons . . . are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade." Blackstone" defined it as a grant "whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before." It is to this last phrase, this idea of deprivation of what the public already actually had, that the hatred of monopolies is due. The right of a patentee, however, is in no way a restraint upon the public in anything which they had before; it simply precludes public use, for a limited time, of that which has just been revealed to the public. The courts are thoroughly consistent in holding that a patent right is not a monopoly as defined by Coke or Blackstone. The general opinion is well expressed in Allen v. Hunter,25 the court saying, "Patentees are not monopolists. This objection is often made, and it has its effect on society. The imputation is unjust and impolitic. A monopolist is one who, by the exercise of the sovereign power, takes from the public that which belongs to it, and gives to the grantee and his assigns an exclusive use. On this ground monopolies are justly odious. It enables a favored individual to tax the community for his exclusive benefit, for the use of that to which every other person in the community, abstractly, has an equal right with himself.

"Under the patent law this can never be done. No exclusive 23 3d Institute Cap. 85.

24 Commentaries Vol. 4-159.

256 McLean 303, 305.

right can be granted for any thing which the patentee has not invented or discovered. If he claim any thing which was betore known, his patent is void. So that the law repudiates a monopoly. The right of the patentee entirely rests on his invention or discovery of that which is useful, and which was not known before. And the law gives him the exclusive use of the thing invented or discovered, for a few years, as a compensation for 'his ingenuity, labor and expense in producing it.' This, then, in no sense partakes of the character of monopoly.

"It then appears that patentees, so far from being monopolists hanging as dead weights upon the community, are the benefactors of their country.'

27

9926

The patent is therefore treated either as a reward given to the inventor for his success in adding to the stock of public knowledge, or as a contract between the inventor and the state, whereby the latter assures him the exclusive right to his invention for a term of years, in consideration of his revelation of it to the public, which thereby acquires the possibility, through knowledge, of using it after the time has expired.28

The courts are not at all definite, however, in their choice of 26 Bloomer v. Stolle, 5 McLean 158; Kedall v. Winsor, 21 How. 322, 328.

27 Letters patent are not to be regarded as monopolies, created by the executive authority at the expense and to the prejudice of all the community except the persons therein named as patentees, but as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein mentioned, the exclusive right and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit . . ."

28 DeFerranti v. Lyndmark, 3 D. C. App. 417. "While a patent is a contract between the government and the patentee . . ."; Ransom v. Mayor of New York, 1 Fisher Pat. Cas. 252, 259, “when the patent is granted, it becomes, to a certain extent, a contract upon the part of the government with the party named in the patent, that they will, through their Courts, and in the ordinary course of the administration of justice, protect him in the exercise of the exclusive privilege which his patent gives to him. . . ."

terminology between "reward" and "contract." Thus in Grant v. Raymond,29 one reads, "It (the patent) is the reward stipulated for the advantages derived by the public from the exertions of the individual, and is intended as a stimulus to those exertions." On the following page the court says, “The communication of the discovery to the public has been made in pursuance of law, with the intent to exercise a privilege which is the consideration paid by the public for the future use of the machine." Theoretically there should be a different interpretation and construction, if the intent of the statute is to confer a mere reward, than there would be if it conferred the patent right as the consideration in a contract. The one is a mere gift from the public, to be construed in the giver's favor, the other is an inducement for which a quid pro quo is received, and to be construed like all fair contracts. Practically it is impossible to say in just what respect the courts do view it, but a full study of the cases shows clearly the broad proposition that the statute and the proceedings under it will not be construed strictly as against either party, but with so absolute impartiality as possible, so as to render the most nearly equal measure of justice to both parties.30 This is quite

29 6 Peters 217, 241.

30 The patent "is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received; if this can be done without transcending the intention of the statute, or countenancing acts which are fraudulent, or may prove mischievous. The public yields nothing which it has not agreed to yield; it receives all which it has contracted to receive.” Grant v. Raymond, 6 Peters 217. Ames v. Howard, I Sumner 482; Brooks v. Fiske, 15 How. 211, 223; Tannage Patent Co. v. Zahn; 66 Fed. 986, 988; Henry v. Dick Co., 224 U. S. 1, 26; Bauer v. O'Donnell, 229 U. S. 1, 10; O H. Jewell Filter Co. v. Jackson, 140 Fed. 340, 343, “A patent is, after all, nothing but a contract by which the government secures to the patentee the exclusive right to vend and use his invention for a few years, in consideration of the fact that he has perfected and described it and has granted its use to the public for ever after. The rules for the construction of contracts apply with equal force to the interpretation of patents."

in accord with the expressed idea that the patent is both a reward for the stimulation of invention and a contractual consideration for the revelation of the invention to the public. The subject of construction comes up in so many ways and is so confused with interpretation as between the patentee and an individual not representative of the public, that nothing more than this can be said as a general proposition.

art

CHAPTER II

WHAT MAY BE PATENTED

§ I. SOURCE

31

We come now to a discussion of the circumstances under which one is entitled to a patent. The statute reads "Any person who has invented or discovered any new and useful may... obtain a patent therefor." When, then, has a person “invented or discovered" something. This may be considered, first, in connection with the source from which the invention or discovery is obtained, disregarding for the present the character of the result.

It may be said broadly that nothing is invented or discovered, within the meaning of the statute, which has not found its source in the mind of the alleged inventor. It must be the result of his mental operation upon external stimuli, and not a mere representation or recreation of those stimuli in their original forms.

IMPORTATION. It is probable that there has always been a difference in the meaning of the words "inventor” and “importer," but the distinction was formerly one in name only. The two stood on the same plane of merit and were considered together so often and with so little indication of real differentiation that there is at least a little confusion in precisely allocating their respective meaning. By the Common Law and also by the exception in the Statute of Monopolies, the bringing into the realm of a new trade or device was considered as meritorious as was the evolution from the mind of a new idea for a trade or device. This was, of course, perfectly logical in the days when travel and intercourse were difficult and rare, and knowledge percolated from one country to another but slowly. The knowledge of one nation was not then, as it has since come to be, equally the knowledge of any other

31 § 4886.