LAW OF PATENT RIGHTS.

CHAPTER I.

Definition.

PATENTS are so called by abbreviation for letters patent, that is open (patentes) letters, a phrase applied to letters or writings addressed by the government, or by the sovereign, or at least by a superior authority, to individuals, as distinguished from letters sealed up or enclosed, and, like these latter, being directed to individuals, they are by this circumstance distinguished from proclamations addressed to the whole people. The expression patent thus substituted for letter patent, is applied to cases of making a grant, as of land, or some privilege, or giving a commission or authority, as in the cases of patents conferring some office. The word brevet, used in the French language in a corresponding sense, is applied to a commission or a grant of rank or office, as

brevet of duke.1 So the French expression for a patent in our sense is brevet d'invention, or grant of invention; which confers on the person to whom the brevet is granted, the same privilege in respect to an invention, that is enjoyed under other brevets in respect to the office or rank or other thing to which it relates.

In English the dictionaries define a patent to be a writ granting an exclusive privilege. A writ (writing) is commonly used to signify a mandate or commission by the sovereign authority, and in this latter sense corresponds to the French term brevet, but it is not applied to mere grants, as of land, and it does not accordingly express the distinguishing characteristic of a patent, which is a grant rather than a commission, and does not partake at all of the nature of a mandate; since the grant of a privilege does not import a prohibition on all people not to infringe upon that privilege, any more than grant of a manor implies an injunction upon all other persons not to commit a trespass upon it. There is nothing of command essentially belonging to the instrument.

In respect to inventions, then, a patent is a grant by the state, of the exclusive privilege of making, using and vending, and authorizing others to make, use and vend, an invention. It is a monopoly of the invention. The monopoly may be unrestricted, in

1 Brevet de duc.

geographical extent, and so be coextensive with the authority of the state or government granting it, or may be confined to a certain territory; so in respect to duration, it may be for an indefinite or a limited period; and again in its nature or character it may be either absolute, or subject to certain qualifications and conditions. So again in respect to the persons who may become interested, it may be limited to the patentee personally, as is usual in grants of offices, or extend to him, his personal representatives and assigns.

CHAPTER II.

Principles and Motives of the Legislation on Patent Rights..

PROPERTY in an art, process, or method, is not, like most other species of personal property, susceptible of exclusive manual possession, and, therefore, is not of a description to arise in a very early and rude state of the laws and jurisprudence of a community; for though a machine or a composition of matter may be appropriated by exclusive possession, it is otherwise with the art of making the machine, and the method

of compounding the materials, and these, as will subsequently be shown more particularly, are the subjects of the discovery, the exclusive right to which is granted by a patent: In respect to things that can be visibly and exclusively possessed, the producer or first occupier is acknowledged, by the laws of nature, to have established his right of property by his possession, and the laws then supervene to guaranty and protect the right. But the exclusive right to the use of a discovery in the arts, must originate in a conventional law: the law must be expressly passed or tacitly recognised, before this right of property. can exist. The species of property arises from improvements in the arts, and it is acknowledged and secured only in an improved state of the laws.

M. Renouard, the author of an elaborate French work on Patents, goes into a particular discussion of the question whether an inventor has, by the principles of universal equity, and independently of the positive law, an exclusive right to his invention; and he very satisfactorily establishes the conclusion to which every mind is constrained to yield assent, that no such natural right exists. Indeed there is no plausible ground whatever on which to rest such a right, since the fact of one person being the first inventor or discoverer, affords no pretence for disfranchising others of the right, in their turn, of making and using the same discovery.

If then there is no such natural right, the question