ents. Many monopolies and exclusive rights were granted by royal letters patent other than those relating to the use and enjoyment of an invention, but it is with the latter only that we are here concerned.3

4

The practice of the sovereign in granting monopolies was always opposed by the Common Law, on the ground that they were contrary to natural right. The courts could not prevent the sovereign from issuing such grants, but they could punish the procurement of them, and they could refuse to enforce them. They did so refuse in cases of monopolies which they did not believe to be for the good of the realm:

5

Nevertheless the grants became so numerous and so obnoxious that in 1601 an attempt was made by Parliament to abolish monopolies entirely. A promise by the Queen to lessen the burden of them prevented action at this time, but during the reign of James I, in. 1623, a statute was enacted, entitled the statute against Monopolies." This act provided, "that all monopolies, and all commissions, grants, licences, charters and letters patents heretofore made or granted, or hereafter to be made or granted to any person or persons, bodies politick or corporate whatsoever, of or for the sole buying, selling, making, working or using of anything within this realm, . . . are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in nowise to be put in use or execution." The act contained, however, an express exception from its operation of those letters patent and grants of privilege, for a limited term, which had been, or should be, given for the "sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law, nor mischievous to the 3 The first letters patent for an invention are said to have been given by Edward III to the inventor of a "philosopher's stone."

4 Coke, 3rd institute, Cap. 85.

5 Darcy v. Allin, Noy. 173; 74 Eng. Rep. 1131; The Clothworkers of Ipswich Case, Godbolt No. 351, p. 252, 78 Eng. Rep. 147.

621 Jac. I. Ch. 3. The date is 1623 or 1624 according to the time at which his reign is assumed to have commenced.

state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient. . . .

This negative provision, excepting monopoly patents to inventors from the ban of the statute, has generally been thought of as the original foundation of patent law. It is quite clear, however, that royal patents to inventors would not have been invalid, under the Common Law, before the statute, but would have been enforced, as being actually for the good of the realm, and that the exception in the statute was therefore merely declaratory of the Common Law. Lord Coke in his Institutes says specifically that this proviso made such patents no better than they would have been before the act, but only excepted them from the express prohibition of the act. He further suggests as the reason they are good at all, that they benefit the realm by offering a reward for the production of new manufactures.

7

This is the position consistently taken by all who advocate the propriety of granting monopolies to inventors. The restriction of the natural right of the public to make use of all knowledge revealed to it, is justified on the theory that the grant of a sole right to inventors encourages and instigates the production of knowledge, by stimulating search for it. It is not within the scope of this work to discuss the economic propriety of granting patent monopolies; it is sufficient to say that legal validity of the grant is predicated upon the assumption that it is for the good of the public."

7 No. 3, Cap. 85.

8 "It (the patent statute) was passed for the purpose of encouraging useful invention and promoting new and useful improvements by the protection and stimulation thereby given to inventive genius, and was intended to secure to the public, after the lapse of the exclusive privileges granted, the benefit of such inventions and improvements." Bauer v. O'Donnell, 229 U. S. 1, 10.

9 A discussion of the justification of the patent laws will be found in Robinson on Patents, vol. I, p. 54 ff; Hopkins on Patents, introduction to Vol. 1; Articles by Fredk. P. Fish, Sci. Am., Sept. 27 and Oct. 4, 1913. An unusual and excellent discussion of the justification of the monopoly given by the patent law is to be found in "Inventors and Money-makers" by F. W. Taussig. His thesis appears to be, that invention flows natur

This right of the sovereign, as recognized by the Common Law and the Statute of Monopolies, to create by express grant the sole right to enjoy the fruits of invention, became a prerogative of the state governments of this country,10 and it is possible that they still have power to grant patents for inventions within their own jurisdictions.

The right to issue monopoly patents to inventors is given to the federal government by the Constitution." It authorizes Congress "to promote the progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." As nothing further is said in the Constitution upon the subject, it would appear that Congress is unhampered as to the character of the right it shall grant, except by the other provisions of the Constitution and, possibly, by the rules of the Common Law.12 The grants might be made by special act concerning particular inventions, if Congress so desired, instead of by the general laws under which they are in fact secured.13 The law may also be retrospective as well as prospective for "the power of Congress to legislate upon the subject of patents is plenary, by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents."14

THE PATENT STATUTES. The first general act providing for the issuance of patents to inventors was that of April 10, 1790.15 This provided generally for the grant, by the Secreally, in its fullest extent, from the primitive instinct for contrivance, but that the monopoly is necessary to assure the commercial development and practical perfection of inventions.

10 Act of 1793, §7; Livingston & Fulton v. Van Ingen, 9 Johns (N. Y.) 507.

11 Art. I, § 8.

12 Blanchard v. Sprague, 3 Sumner 535.

13 Bloomer v. McQuewan, 14 How. 539; Evans v. Eaton, 3 Wheat. 454; Graham v. Johnston, 21 Fed. 40.

14 McClurg v. Kingsland, 1 How. 202.

15 The sequence of the various patent acts is set out in Root v. Railway Co., 105 U. S. 189.

tary of State, Secretary of War and Attorney General, or any two of them, of a patent, to endure for 14 years, to any inventor who came within the terms of the act. It provided for a particular mode in which application for the patent should be made and proceedings and conditions in accord with which the patent should be issued. By later acts the duty of issuing the patents was imposed upon the Secretary of State, 16 and eventually a sub-department known as the Patent Office was instituted to perform these duties, and the office of Commissioner of Patents was created. In 1870-4 the patent laws were revised and re-enacted in the form which, with some minor changes, is still in effect.18

17

This act provides that 19 "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."

"Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States and the Territories thereof, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof."

16 Act of 1793.

17 Act of 1836.

18 The Commissioner of Patents will furnish, on application, without charge copies of the Patent Laws as they now stand.

19 $ 4886 and 4884.

INTERPRETATION OF THE STATUTES. The greatest bulk of patent litigation has arisen out of controversy as to whether some particular alleged invention was entitled to protection under the terms of this statute and, if so, how far it should be protected.

Our initial investigation, therefore, concerns the degree of strictness with which the terms of the statute shall be construed and unexpressed terms implied; that is to say, whether the construction shall favor the alleged inventor, or the public, whose natural right a valid patent would restrict. Many courts have sought for the answer to this through an examination of the fundamental justification for granting any exclusive right of enjoyment to an inventor. Out of this have arisen three different theories of the justifying purpose of the patent laws. These are best denoted by the expression generally used in reference to them, viz.: 1. The patent is a monopoly. 2. It is a reward. 3. It is a contract between the state and the inventor.

The theory that a patent is a monopoly and should therefore be interpreted most strictly against a patentee and in favor of the public, proceeds upon the assumption that there is in fact no justification for the patent laws; that they are not of economic advantage to the state. This theory is not supported in judicial decision, although there is remarkable conflict of expression as to whether or not a patent right is in name a monopoly. Courts have said with equal positiveness that it is a monopoly2o and that it is not a monopoly. Indeed the same judge has said in one case," "This (patent) law gives a monopoly, but not in an odious sense," and in another case 22 "Patentees are not monopolists .. the (patent) law repudiates a monopoly.". This conflict is due not to disagreement as to the character of the patent right but to difference in understanding of the word monopoly. In its simplest meaning, monopoly is defined, from its root words μóvos, sole, and

20 "A true and absolute monopoly," Heaton-Peninsular, etc. Co. v. Eureka Specialty Co., 77 Fed. 288.

21 Brooks v. Jenkins, 3 McLean 432 (1844).

22 Allen v. Hunter, 6 McLean 303 (1855).