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ed, by act of parliament, then in force, and so long as the same should remain in force. And this
provision constitutes the whole legislation on patent rights by the British parliament, except private acts respecting particular patents, down to the year 1835, when the act of 5 and 6 William IV. c. 83, was passed, by which it is provided, among other things, that the patentee may enter a disclaimer of any part of his specification, s. 1. If a verdict or decree shall pass for patentee on the merits in any suit, the judge may grant a certificate, which being given in evidence in any other suit, shall entitle the patentee, on a verdict in his favor in any other suit, to triple costs. s. 3. A penalty of 50£ is incurred by using the mark of a patentee. s. 7. These acts constitute the whole of the British legislation on this subject.
From the time of the passage of the first of the above acts, monopolies have been considered to be subjects of legislative control and regulation. In a case before Lord Hardwicke, in 1742, on an application for an injunction against the use of a stạmp on goods, the exclusive right of using which was obtained by the applicant under a charter of Charles I., the Lord Chancellor refused the injunction, saying that the rule the court had governed itself by, was, whether there was any act of parliament on which the restriction was founded, and that the court would never establish a right of this kind, claimed by a charter only of this kind, unless there had been an
action to try the right. That is, in effect, he would presume the grant by the crown, unless authorized by act of parliament, to be void; this presumption might, however, be rebutted by a judgment at law. The exclusive right to use such a mark would stand on the same ground as before the statute of monopolies where there had been no charter or patent for it. In the 22 Elizabeth an action on the case was brought in the Common Pleas, by a clothier, against another of the same trade, for using the same mark on his cloth, and it was resolved that the action would lie. (Anonymous, cited in Popham, 144.) Lord Hardwicke, in commenting on this case, in 2 Atkyns, 485, remarked, that it was not the single act of making use of the mark that was sufficient to maintain the action, but doing it with a fraudulent design, to put off bad cloths by this means, or to draw away customers from the other clothier. And there is no difference between a tradesman's putting up the same sign, and making use of the same mark, with another of the same trade.
Though the inventor has a just title to some of the advantages of his invention, yet courts have been very cautious of recognising any property in an invention, independently of a grant by the government. Even when inventors, not intending to dedicate their discoveries to the public, have communicated their secret to others in confidence, who have betrayed that confidence, and endeavored to take advantage of the invention to the prejudice of the inventors, courts of equity have still refused to interfere to restrain the fraud, but have chosen to leave the complainant to his remedy at law against the breach of contract or the fraud of the wrong-doer.?
* Blanchard v. Hill, 2 Atk. 485.
Sec. II.-FRENCH LEGISLATION.
The French legislation on this subject has its date in 1791, during the agitation preliminary to the revolution, a century and a half posterior to the English, and contemporaneously with that of the United States, both having borrowed from the English, each adopting, to a greater or less extent, and expressly enacting, the construction which had been put upon the fifth and sixth sections of the English statute, by the English courts. The legislation of the three countries on this subject, therefore, being parallel and similar, and that of one being the model, the leading principles of the law, with some exceptions that will be pointed out, are common to them all. The administration of these laws in each country may accordingly be considered a branch of the same
system of jurisprudence, and the doctrines and precedents of each are not merely illustrative of the subject in respect to the others, but in some degree mutual authorities. And the French authors and also the American writers and judges have so treated the subject; and English authors have recently begun to look at the American and French legislation and jurisprudence on this as on other branches of law. Both the English and French statutes, together with our own, will be given at length in the Appendix; it will be sufficient, in this place, to give an abstract of each, with some general observations, as introductory to the examination of the jurisprudence on each branch of the subject, since a general view of the whole ground will facilitate our researches in each division.
The French law of the 7th of January 1791,4 after stating, in the preamble, that an inventor has an indisputable property in his discovery—that from neglect to recognise and protect this species of property in France, many distinguished French artists had emigrated and carried with them into foreign countries their inventions, of which France ought to have reaped the benefit; and finally that all the principles of justice, of public order and national interest, imperiously called upon the government to fix the attention of the French citizens thereafter upon this
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species of property,-proceeds to make the following enactments : 1. Every discovery or new invention, in all kinds of industry, is the property of the inventor; and the law guaranties to him the full and entire enjoyment of it according to the mode and for the time thereinafter provided. 2. An improvement shall be considered an invention within the meaning of the law. 3. The person who may introduce a discovery into France from abroad is to enjoy the privilege of an inventor. 4. Every one who wishes to secure to himself the advantage of this species of property must address to the proper department of the government a statement in writing of the kind of invention for which he asks a patent, and furnish an exact specification of its principles, materials to be used, and processes, accompanied by suitable plans, drafts, designs, and models. 5. As to objects of general utility, but simple in execution, and too easy of imitation to be the subjects of commercial speculation under the privileges of a temporary monopoly, and in all cases where the inventor may so choose, he may apply directly to the government for a reward, instead of taking out a patent. 6. To those who may prefer the honor of conferring the benefit of their inventions
the nation directly, and shall establish, by the prescribed modes, the utility of their inventions, shall be entitled to a recompense out of the fund destined to the encouragement of industry. 7. The enjoyment of this species of property is assur